Do Dads Get a Fair Shake in Divorce?

We’re speaking with Paul Mandelstein, the author of Always Dad: Being a Great Father During and After Divorce from Nolo.

NOLO: Many Dads don’t think the legal system is capable of giving them a fair shake in the divorce process. What do you think and what, if anything, can be done to balance the arrangement?

MANDELSTEIN: The arrangement might be unbalanced, but in the last ten years or so things have been shifting and more fathers are wanting to spend more time, and being more present and accountable. And basically, what you really need to do from Day One is to stay in your kid’s life, which might be hard, because everything’s emotional, but you’ve got to make sure that you create a legacy that you’ve been there from Day One, that you pick up the kids from school, doesn’t have to be full-time, any of that, but you need to show that from Day One that you’re in their life, that you’re not abandoning them. So that creates a clear pathway. Because often, you’ll move out of your house, and it’ll appear like you’re not taking care of them, and that you’re going to be the “weekend dad.” But if you just create a clear path that you are being there on a daily basis, and you’re very involved, and try to document that in some way, an email or whatever, that will help a lot.

NOLO: When you say Day One and you refer to the history … What point are you referring to exactly … the date of the divorce filing.

MANDELSTEIN: The history of when you split up, because when you’re an intact family, it’s hard to know who did what, and who’s taking care of who, but when you split up, you need to stay in the kid’s life. And if you want custody, if that’s your plan, then you should, from Day One, cut that amount of time for them, and ask for that amount of time. If you can only see them two days a week, then see them two days a week. But you need to set that precedent, because otherwise courts will look at this thing six months down the line and make a determination, and they’ll say “Well, you know, you haven’t been around, and you know, we’ll just keep it the way it is.” So it’s important to be pro-active in this way and step up.

NOLO: Paul, one point you make in discussing the initial breakup between a husband and wife with kids is that spouses should not jump right into the legal proceedings. Take it slow. Analyze the situation a little bit before you rush off to the lawyer’s office.

MANDELSTEIN: Exactly. One thing that’s going to happen is, as soon as someone goes to the lawyer’s office, that raises the ante quite a bit. And it makes things more emotional, more volatile, because even if you’re the one filing for divorce, things are going to change, right then. If the hot buttons are still hot, and no one’s in a big rush, your kids are okay, the money’s in place, and you can agree on things like that, it’s fine to wait until things settle down. Filing the papers is almost the point of no return.

NOLO: Your book is a very helpful manual for divorcing Dads. It even includes some advice on cooking. One tip you give is about using “right speech” Can you elaborate a little on what that is?

MANDELSTEIN: Right speech comes from a Buddhist term. And the Buddhists teach that right speech is essential for a satisfying life. And it means telling the truth, refraining from unjust criticism of others, using language constructively rather than harshly, and refraining from gossip. If you follow these principles, it can go a long way towards creating and maintaining a collaborative divorce. But because avoiding the truth, criticizing others and using harsh language and gossiping are all ways we vent our pain when our relationship breaks up, it’s far easier said than done.

NOLO: I liked your ten rules for communicating with an ex-spouse. One of the rules – listen to your ex-spouse without defending yourself – seemed a little unrealistic. Wouldn’t you have to be almost Zen-like to not want to defend yourself against accusations – especially unfair ones?

MANDELSTEIN: And right speech is also about staying focused on the future. You know, part of establishing a daily routine is figuring out how to communicate with your ex, and what this means. The first thing that you really need to consider is that this is about the kids. And it’s not about you right now. You’re not feeling good, you’re angry, you’re confused, you’re upset, so’s your ex, it’s a constant war. But what you’ve got to do is, you’ve got to end this war. Because the kids are unwilling hostages in an uncivil war.

NOLO: Let’s talk about custody issues. When it comes to resolving legal custody issues, you start with a quote from Virginia Burden Tower, basically ---nobody can get there unless everybody gets there. How can a divorcing Mom or Dad maintain that spirit of cooperation when dealing with divorce attorneys?

MANDELSTEIN: As I mentioned, in Virginia Towers’ book, she points out that a relationship of cooperation rather than combat begins with the thorough conviction that no one gets out of here unless everybody gets out of here. And it’s not that much different from the Buddhist philosophy where there’s no final and perfect enlightenment until everyone’s enlightened. So unless you create a collaborative path that works for everybody---so it’s not like your wife is out of the family---this is the extended family now. It’s not the broken family. Broken family is an old paradigm that doesn’t really work. This is the extended family. Which means there’s not just you and the kids, it’s you, the kids, your ex-wife, perhaps your mom and dad, the kids’ grandparents on either side, and different cousins and uncles, and everybody’s concerned. And also, if you’re going to be involved in another relationship, maybe you want to get married again, or maybe your ex gets married again, then you have perhaps her husband or your new wife and the kids. This is a large group of people and you have to take care of everyone. No one is expendable here.

NOLO: For some of our listeners who don’t know the basics, could you explain the difference between legal, physical and split custody?

MANDELSTEIN: Legal custody means that a parent has the legal authority to care for and make decisions concerning the child’s health, education and welfare. Legal custody is either joint or sole custody. Unless there’s a compelling reason to keep one parent from the involvement of decision making, the courts usually grant joint custody.

Physical custody refers to living with the children and seeing to their day-to-day physical needs, like feeding them and making sure they’re clothed. So you might have joint custody, you might have joint legal custody, which is you’re both responsible for their health, education and welfare, but one parent might be more responsible for the physical. Which means that, if you have the kids just on the weekends, well, on those days, you have physical custody. On the other days of the week, if your ex has them five days a week, then she has physical custody. Split custody---you know, in most families, siblings stay together. And that’s what split custody is about, it’s often giving others crucial stability and support---for example, if one parent tends to move to another city and there’s a great school system that would benefit their younger child, but the oldest sibling is in their last year of high school, and is involved in lots of activities and wants to stay, the parents might decide to have her live with the one parent who is remaining in that original city. But this doesn’t happen very often. In most cases, kids want to stay together. And it makes the most sense to do that.

NOLO: Tell me a little about your story? What prompted you to write this book?

MANDELSTEIN: When I split up---we split up in October--- and then a couple of weeks later it was Thanksgiving, and I have three kids, and they went over to mom’s. Where I would have been also, because mom’s a good cook, and throws a good party. But I was home, and I was feeling sad. I was sitting on my bed, and took out my yellow pad. My background is in publishing; I’ve foundered two publishing companies, I’ve been in the business for thirty years, so I kind of thought in terms of books. So I scribbled on a yellow pad, and then I went to bookstores to see what was around ,and I noticed that there were walls of information for women. And if you went to look for fathers, for men, there were about three books. And the books that there were about fathers, involving divorce, were all about men’s rights, and all about adversarial and trying to, for lack of a better word, conquer the ex-wife. I thought this was all wrong. And after talking to hundreds of people about all this, I felt that a new process should be created, and by doing that, I did my own healing by going through this and trying to help out.
NOLO: You’ve created the resource, www.father.com. First of all, I’m seriously impressed that you landed that domain name


MANDELSTEIN: You know, I bought it! I bought it! But I only paid $600 for it. It was in 1997, or 1996. Back then, I was going to do this great for profit portal. I found it very difficult and it was very hard to raise money because you couldn’t’ quantify your bottom line. And one day I woke up, and I said “You know, this is all wrong. I’m not doing this for money. I’m doing this to try to help.” And I turned it into a non-profit. And as soon as I did that, immediately I felt successful. Because in a non-profit, how you quantify your success is: Are you helping people. And I was helping people.

NOLO: And I’m also impressed that you launched this resource. It’s not just about divorcing dads, though is it?

MANDELSTEIN: No, it’s not. It’s about fathers and families in transition. We did a poll on the site and we asked “Do you have one, two, three, or four kids?” And almost half of them said “No kids” but that they were expecting. So it’s for new dads, and it’s certainly for divorced dads, and it’s for people dealing with end of life issues for their own parents, and maybe their own family. It’s basically for fathers and men for the tough transitions in life. And I believe that the father is a very vital and initiating force for the younger child. It’s very well-documented, the difficulties kids have in fatherless households. For example, 90% of the men in San Quentin are from fatherless households.

NOLO: Father.com has some great links. Can you tell us about any other online resources you recommend?

MANDELSTEIN: Of course, Nolo is a wonderful resource. Their specialty is self-help legal books. There’s also a site I really like called Dads and Daughters.com. As the title suggests, this is about relationships for fathers and daughters. And we have a ton of links on Father.com.