aurit150 (1)by Michael Aurit, JD, MDR

Child custody battles continue to rage on in every city and town in America. Many of these divorce wars revolve around each parent accusing the other of some degree of bad parenting that has negatively affected their children. Parents often point to the child’s behavior as evidence of the child’s “true feelings” or of the other’s poor parenting. Sometimes the concerned parent is right.


Most commonly, the child’s questionable behavior—used by both parent’s attorneys as evidence in a litigated court custody battle–is evidence of nothing more than normal child-coping behaviors that manifest during divorce.

The result is tragic: Years of fighting, harmful accusations, escalation of family conflict and, most of all, severe damage to the emotional well-being of the children, all because parents misunderstood their children’s normal behavior.

Family law attorneys are the game changers.

Short of directly referring clients to divorce or child custody mediation— the optimal approach for avoiding misunderstandings and resolving parenting issues— attorneys can begin to help clients avoid protracted litigation by sharing simple facts about how children behave in response to parental conflict and separation.

Our historical duty to act as “zealous advocates” on behalf of clients will still remain uncompromised, even when attorneys counsel their clients about the developmental needs of children. In fact, what could be more “zealous” in family law than acting in a way that results in protecting a child from harm? To avoid any continued confusion among attorneys, Arizona has appropriately struck this old fashioned language from its ethics code and replaced it with a new duty to “act honorably” on behalf of clients.

Thank you, Arizona.

Family - African descentWhen family law attorneys expand their scope of advocacy to include a duty to “act honorably” in considering intra-familial relationships, attorneys can oversee a divorce process that results in healthier family reorganization, rather than a destructive family break-up.

Child psychologist and pioneer child custody mediator, Dr. Donald T. Saposnek, has identified at least five common misinterpreted child coping behaviors, each with their own underlying emotions and functions. Over thirty years ago, Saposnek (1983)* suggested that attorneys should gain deeper awareness of family systems, in order to better serve the best interests of children. Today, perhaps a new generation of legal professionals will be more open to hearing how they can better help the clients they serve.

Attorneys who care for the well-being of children and families, and who genuinely care for the ultimate well-being of their client should convey this information to their clients, when appropriate. Parental awareness could pre-empt an explosive parenting battle. Such prevention would have significant positive effects on children’s health and well-being.

Several behaviors seem to appear with significant frequency [from Saposnek (2005)]:

1. Reuniting behavior

Reuniting behavior results from a child’s wish for their parents to get back together. Children fear abandonment and worry about who will care for them when their parents are separated. This can result in children developing symptomatic behavior so that parents remain together to solve the child’s problem.

In an honest effort to bring parents back together, a child might tell one parent how much “better” the other has been since the separation—details included. Of course, often this only causes increased resentment between parents.

Young children could revert to bedwetting, thumb-sucking, and constant crying. Mother may misinterpret this as the child feeling insecure and uncomfortable with Father. Father could misinterpret this as the child wanting to be with him, and Mom not caring well enough for him—deadly weapons in a custody battle brought on by normal child behaviors.

2. Separation distress

Separation distress can occur when a child transitions from one parent to the other. Children may cry or resist leaving a parent—demonstrating the emotional loss of leaving a parent. However, this often indicates a close bond with both parents. Well-meaning mothers may misinterpret this behavior as proof that the child prefers to live with her. An exasperated father reacts by assuming that Mother’s bad-mouthing of him is the cause for their daughter crying when she comes to him. Both parents fight for more parenting time, or even for sole custody, based on false assumptions.

3. Testing love and proving loyalty

family and snowmanChildren will naturally test the extent to which their parents love them, throughout the divorce process. Conversely, children also attempt to prove their loyalty to one or both parents. Testing love and proving loyalty are both child behaviors that stem from fear of rejection and possible neglect, which they perceive could happen when their nuclear family unit comes apart.

When parents notice that their child is showing and telling Mom or Dad how much they love them, more than usual, the child may be “testing the parent’s love.” Mom could misinterpret the increase in affection as evidence that the child does not want to live with Dad. In turn, Dad may accuse Mom of poisoning the child with negative information about him.

Proving loyalty occurs when a child feels that is it is not possible to love both parents, if parents no longer love one another. This results in the child sacrificing, at least temporarily, the relationship with one parent, in order to “prove loyalty” to the other. Children, rightly so, may have difficulty balancing healthy relations with both parents, when parents are in conflict.

Children also may feel the need prove loyalty because of their need to be cared for and safe. This results in a child siding entirely with one parent and cutting off the other. Misinterpretations of the extreme behavior can cause both parents to seek sole legal decision-making authority of the child.

4. Protecting their own self-esteem

Children may attempt to protect their own diminishing self-esteem caused by parents’ conflict. which becomes internalized as their own feelings. This results in increased anxiety, depression, or withdrawal.

When children hide their feelings about the divorce, deny they have feelings, or refuse to talk about their emotions, children may be attempting to protect their own self-esteem. One parent can misinterpret a lack of outward emotions as the child “being okay” and “doing well”, while the other takes it as evidence of the child having problems—caused by the other!

Each parent blames the other for the child’s anxiety or withdrawal.

5. Protecting their parents’ self esteem

Children may seek to comfort or “take care” of their parents during the difficulty of divorce. While children may show love and empathy for their parents’ pain, this behavior is exacerbated during divorce in the interest of preserving their own emotional survival. Children may attempt to boost both parents’ self-esteem because they need stability for themselves and fear emotional abandonment.

A young child may tell Mom that she wants to live with her, and also tell Dad that she wants to live with him. Each parent may pursue disproportionate parenting time and sole legal decision-making authority because both have interpreted the behavior as the child surely wanting to live with that parent.

If the person most well-positioned—the family law attorney or professional family mediator—counseled parents about this common occurrence and encouraged open communication as co-parents during the divorce process, a potential custody battle may well be avoided.

Fear not, my fellow attorneys and mediators who appreciate these concepts but believe “But, I’m not my client’s therapist.”

Surely, you are not.

By providing this information, you are no different than any responsible professional who does not claim to be an expert about every aspect of the client’s circumstances, but is thoughtful enough to provide important resources that clients need.

Preventing a high-conflict battle over parenting issues is perhaps the most effective way to advocate for a client’s best interests and protect the greatest interests of children.

*Saposnek, D.T. (1983/Rev.1998). Mediating Child Custody Disputes: A Systematic Guide for Family Therapists, Court Counselors, Attorneys, and Judges. S.F.: Jossey-Bass.


Michael Aurit, JD, MDR, is a professional divorce and family mediator, Arizona attorney, and Founder of The Aurit Center for Divorce Mediation in Scottsdale, Arizona. He is a Fellow of The American Bar Association Section of Dispute Resolution, and has served as ABA National Conference faculty. He serves of the Board of Directors of The Academy of Professional Family Mediators. Michael is also an active member of The Association for Conflict Resolution, and Ethics Chair of the Maricopa County Association of Family Mediators. He holds his Juris Doctorate from Pepperdine University School of Law and Masters of Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine. To contact Michael, visit or email at [email protected]

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