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|Posted on November 28, 2014 at 2:45 PM||comments (71)|
The Best Interests of the Child Standard
The underlying goal for any children’s court judge or family court judge is to determine what’s in the best interest of the child or children. They do this in every child custody decision, every child support determination, and in CYFD abuse and neglect cases. Parents believe their ideas, goals, and plans are in their child’s best interests. Lawyers draft motions and advocate for what they believe is in the best interests of child-client or in the best interests of their clients’ children. And of course, psychologists, teachers, therapists, guardians ad litem, and a host of other professionals submit reports, observations, recommendations and proffer testimony all trying to figure out what’s in the child’s best interests.
What does the “Best Interests of the Child” standard mean?
Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. “Best interests” determinations are generally made by considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern.
In New Mexico, our state statutes in the form of two passages from the Children’s Code provide this as guidance:
N.M. Stat. Ann. § 32A-4-28(A) In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.
N.M. Stat. Ann. § 32A-1-3 The Children’s Code shall be interpreted and construed to effectuate the following legislative purposes:
• First, to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code, and then to preserve the unity of the family, whenever possible
• To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced
• To provide a continuum of services for children and their families from prevention to treatment, considering, whenever possible, prevention, diversion, and early intervention, particularly in the schools
• To provide children with services that are sensitive to their cultural needs
• To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention, and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim
• To provide continuity for children and families appearing before the family court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family The child’s health and safety shall be the paramount concerns. Permanent separation of the child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit.
This is quite the laundry list of factors for the Courts to consider when deciding these types of complicated cases. We can see that Courts are to consider not only the basic needs of the child or children such as housing, food, medical care, and education, but also cultural and community concerns as well. Clearly this is a very broad list of factors for the Court to examine when it considers such things as parenting plans, physical custody, child support, and even more mundane questions such as which school will the child attend? Which church shall they attend? Which extracurricular activities are best for the child?
Decisions to these questions are seldom made very quickly. That means that Courts seldom make these types of decisions in one or two hearings. This is why this type of litigation is both costly and time consuming. Because these types of cases are very emotionally loaded and legally complex, oftentimes it’s best to seek legal representation. Please contact me and I can explain how to keep costs low and judicial involvement in your family’s lives to a minimum.
|Posted on October 29, 2013 at 12:20 PM||comments (127)|
Recently a new client approached me about the differences between a divorce and legal separation. Often times legal separation can be an effective mechanism for people who are experiencing some very unique circumstances.
Despite what one might glean from the internet or television, in New Mexico legal separation and divorce are very similar. The basic underlying difference is that in cases of legal separation, the parties are unable to remarry. In other words, legal separation divides property, assets, debts, etc. and it also carries with it custody and child support ramifications. However it does not end the romantic relationship legally as a divorce does.
Courts see legal separation as basically a quasi-divorce without the name change. Legal separation is a divorce without the termination of the actual marital relationship.
Sometimes people choose to separate legally for religious purposes, insurance, tax, and other purposes. If you are considering a legal separation in lieu of a divorce, please consult an attorney before filing anything.
|Posted on July 18, 2013 at 7:59 PM||comments (162)|
Ten Divorce, Custody, and Child Support Myths
1.It is OK to deny visitation if the other parent does not pay child support.
False. This situation comes up when the noncustodial parent falls behind in paying child support, and the custodial parent decides that the delinquency justifies shutting the other parent out of the children's lives. In the eyes oft he Court, child support and child visitation are separate issues. Child support is not payment for the privilege of visitation.
2.Adultery is a ground for divorce.
False. New Mexico is a no-fault state. Any married person can ask for a divorce “just because”.
3.A spouse can deny the other spouse a divorce.
False. In the days before no-fault divorce, one spouse could make it all but impossible for the other to end the marriage. This is not the case anymore. Anyone can get a divorce!
This does not mean that divorce is easy. In the vast majority of cases, one spouse wants to end the marriage and the other does not—at least in the beginning. And sometimes the reluctant spouse stalls the process of a divorce out of spite.
4.The mother automatically gets the kids.
False. Mother does not automatically get the kids. However, in many cases, the divorcing spouses agree the children's best interest is with the mother. In contested cases, where both parents seek custody, the court decides the question by also deciding what’s in the best interests of thechild.
5.A parent with a mental illness or a drug using parent will never get custody oftheir kids.
False. In NewMexico, parents even in state custody have rights. Just because one parent may suffer from a mental illness or drug or alcohol addiction, the Courts in many cases will not keep a parent from their children. There might be certain restrictions however. Also due to the changing nature of Medical Cannabis, the lawful use of marijuana may not face the Court at all!
6.You can take a smaller property settlement to avoid paying child support.
False. Property settlements and child support are separate issues. In New Mexico child support is decided based upon certain guidelines and judges are prohibited from deviating much from those guidelines except in the most exigent of circumstances.
7.Most contested divorces are settled at trial.
False. In many contested cases, lawyers prepare for trial even as they continue to search for a settlement. This is part of their strategy. Reputable divorce lawyers always try to work for a settlement rather than a trial because going to trial escalates the cost of a divorce astronomically. Few people havethe money or the stomach for it.
8.A divorcing woman can always count on alimony.
False. In most cases, most women do not get alimony at all. New Mexico provides for different types of spousal support however there are no hard and fast rules. Secondly and most importantly alimony is not even considered unless the couple have been married for several years.
9.If a parent terminates their parental rights they can avoid paying child support.
False. Even in cases where on parent terminates their legal rights to parent their children, they cannot avoid paying child support.
10. My kids can talk to the judge or testify in court.
False.The Court is not really interested in the wishes of the children. And the Court will not in most cases have the children address the Court. However, the Courts will often times appoint attorneys to represent the children. These attorneys are called guardian ad litems. They get to know the children and act as a voice for them.
|Posted on June 5, 2013 at 6:01 PM||comments (177)|
I just got off the phone with someone who asked the classic question "What can they do to me if I don't pay my child support obligation?". Well, here's the answer:
Courts get mad when you don't pay your child support. They can order payment of all back child support that you owe plus interest. That's called arrearages.
The New Mexico Child Support Enforcement Division is empowered to go after folks who don't pay their child support obligations. They can petition the Court for a hearing to get you. They aren't the only one's who can ask the Court for a hearing, so can the custodial parent or even your child (if over 18).
If you don't pay your child support obligation, the Court can garnish your wages, take your tax refunds, also licenses such as driving licenses, professional and occupational licenses can also be suspended.
You can even go to jail.
Plus a whole lot more. So please pay your child support, it's for your kids. If you believe you are paying too much, contact me.
|Posted on June 5, 2013 at 4:24 PM||comments (662)|
Termination is involuntary—the Courts take awaysomeone’s parental rights despite that person’s objection. However the reasoning the Courts use is very similar. You can see how the distinction disintegrates in reality. This is because whether termination o r relinquishment, the Courts look for only two circumstances whereupon parental rights can be divested: abuse and neglect cases and private adoption.
The first instance is typically handled by the Department of Child Youth and Families. For instance, CYFD receives a complaint about a parent and investigates and further determines there’s adequate evidence of abuse and/or neglect to justify petitioning the Courts for termination of parental rights. In the second instance, termination procedures can be initiated when a child is in the process of being adopted. Below is a portion of the law outlining the procedure. You will note that it is geared for either the CYFD track or private adoption. In essence, the following provides what is required in a petition to terminate parental rights.
Section 32A-5-16 Termination procedures
A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following:
(1) the department;
(2) an agency; or
(3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem or attorney in another action,a foster parent, a relative of the child or the child.
B. A petition for termination of parental rights shall be signed and verified by the petitioner, be filed withthe court and set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the grounds for termination and the facts and circumstances supporting the grounds for termination;
(3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred;
(4) the basis for the court'sjurisdiction;
(5) that the petition is incontemplation of adoption;
(6) the relationship or legitimate interest of the applicant to the child; and
(7) whether the child is an Indian child and, if so:
(a) the tribal affiliations of the child's parents;
(b) the specific actions taken by the moving party to notify the parents' tribe and the results of the contacts,including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attachedas exhibits to the petition; and
(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian ChildWelfare Act of 1978 or the placement preferences of the appropriate Indiantribes.
C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, the individuals with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure[1-001 NMRA] for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served shall file a written response to the petition within twenty days if the person intends to contest the termination. In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978.
D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for anorder granting service by publication or an order stating that service by publication is not required. A motion for an order granting service by publication shall be supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent.Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004[NMRA], the court shall order service by publication or order that publicationis not required because the parent's consent is not required pursuant to theprovisions of Section 32A-5-19 NMSA 1978.
E. The court shall, upon request,appoint counsel for an indigent parent who is unable to obtain counsel or if,in the court's discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys.
F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [32A-4-1 NMSA 1978] shall represent the child in any proceedings for termination of parental rights under this section.
G. Within thirty days after thefiling of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.
H. The grounds for any attempted termination shall be proved by clear and convincing evidence. In any proceeding involving an Indian child, the grounds for any attempted termination shall beproved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978.
I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption. In any termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings that the requirements of the federal Indian ChildWelfare Act of 1978 were met.
J. A judgment of the court terminating parental rights divests the parent of all legal rights. Terminationof parental rights shall not affect the child's right of inheritance through the former parent.
What is important to note is that there must bea step-parent adoption.
Thus, the legal termination of parental rights must follow the procedures outlines in the law above. There are, however, ways of attempting to model an order that achieves a similar end without an adoption or abuse and neglect etc.
|Posted on November 23, 2012 at 11:07 AM||comments (272)|
Even in tough times, we all are called to take a few moments and inventory our lives. Despite whatever challenges we are facing, all of us have at least something to be thankful for.
Have a Happy and drama-free Thanksgiving Weekend!
|Posted on November 20, 2012 at 7:21 PM||comments (198)|
Here's a great article from the Atlanta Bar Association. People might find it interesting. While this information is firstly based on Georgia law and secondly it's offered herein for general educational purposes, New Mexico follows similar guidelines as suggested in this article. You're invited to ask your attorney for specific details.
Relocation: Risk Assessment Howard Drutman, Ph.D. & Marsha Schechtman, LCSW(The Family Lawyer, Atlanta Bar Association, July 2011)
One of the most difficult areas of child custody litigation is the dreadedrelocation case. These cases are increasing due in large part to the current economic conditions combined with an increasingly mobile society. Courts throughout the world are struggling with philosophical assumptions to drive decision making in relocation cases. Georgia went through its last paradigm shift with the Bodne v. Bodne Supreme Court decision. No longer is there a presumption that if the primary custodian would like to relocate it is automatically in the child’s best interest.
Currently the focus is on what is the child’s best interest at the time of the relocation.When there are two competent and loving parents and one of them must relocate, the children suffer even under the best of circumstances. William Austin, Ph.D. conceptualized relocation evaluations in terms of risk management (Austin, 2008). The goal of Dr. Austin’s risk assessment model was to assess and recommend the least damaging alternatives to resolve the relocation as well as the behaviors to engage in to minimize the negative effects of relocation on the child. He referred to his model as the Relocation Risk Assessment. Dr. Austin saw the role of the child custody evaluator in these relocation cases as the scientist who predicts potential outcomes for the court. The examiner presents in their findings the risks and benefits to the child if they relocate or if they stay with the other parent who is not relocating.
The effects of relocation on children will be covered in a future article. The focus of this article is on factors that the psychological literature has shown to be significant risk factors to children in relocation cases. Writing in the journal, Family Court Review in 2008, Dr. Austin outlined his Relocation Risk Assessment which contains a number of risk factors that should be addressed to determine what is in the best interest of the child during an assessment for a pending relocation. The following is a description of the major risk factors to be assessed:
1. AGE OF THE CHILD: Very young children are at risk of disrupting their attachment relationship with their non-residential parent. There is also a risk of the non-residential parent dropping out of the child’s life or at best playing a diminished role. Adolescents are also at high risk since in a relocation situation the teenager may end up without a father figure to stabilize the adolescent behavior. Furthermore, traveling to the non-custodial parent also means taking the teenager away from their peer support network which may lead to the adolescent feeling that they’re missing out on peer activities while with the non-custodial parent.
2. GEOGRAPHICAL DISTANCE AND TRAVEL TIME: Whenever either parent lives greater than a one-hour travel time from each other there is an increased likelihood that the noncustodial parent will drop out of the child’s life or have a diminished role in the child’s life (Hetherington & Kelly, 2002).
3. PSYCHOLOGICAL STABILITY OF THE RELOCATING PARENTS AND PARENTING EFFECTIVENESS OF BOTH PARENTS: It is important to know the psychological stability and level of functioning of the relocating parent. If the parent has a significant psychiatric disorder or an addiction this could affect the parent’s ability to manage the child’s adjustment to a new location. For example, if the parent is struggling with maintaining sobriety the child may not get the necessary attention and assistance to help them adapt to a new environment, school, friends, and activities. An impaired parent will be challenged to effectively assist the child with the adjustment to their new location. To further complicate the situation is the child’s missing the relationship with the non-custodial parent which is likely to be a significant loss for the child.
4. INDIVIDUAL RESOURCES/INDIVIDUAL DIFFERENCES IN THE CHILD TEMPERAMENT/SPECIAL DEVELOPMENTAL NEEDS: The child’s temperament and resourcefulness should be assessed to evaluate any special needs and strengths of the child. In 1986, Block, et al. studied young children and found that pre-separation measures of psychological functioning were the best predictors of post-divorce adjustment. In other studies temperamental differences of children predicted post-divorce adjustment. It should also be noted that males are at significantly higher risk during relocation. Children with an easier temperament are better able to handle the challenges inherent in relocation to a new area. Some of the areas to assess in the child are their social and emotional intelligence and their ability for successful social interaction. This social competence would help the child adapt social to the new environment and assist the child in developing new peer relationships and support networks.
5. INVOLVEMENT BY THE NONRESIDENTIAL PARENT: A number of researchers have studied the relationship between children and their non-custodial parent. The research is clear that children have their best overall adjustment, post-divorce, when they have meaningful relationships with both of their parents combined with low conflict between their parents. Research also indicates that children do better when they have a relationship with their non-custodial parent. The evaluator needs to assess the extent to which the particular relocation will alter the non-residential parent’s parenting time with the child following the relocation.
6. GATEKEEPING AND SUPPORT FOR THE OTHER PARENT-CHILD RELATIONSHIP: In a prior edition of The Family Lawyer (Drutman & Schechtman, February 2011) we wrote on the concept of gatekeeping. Gatekeeping is essentially the custodial parent restricting or excluding the non-custodial parent from child care and involvement with the child. Research has shown that children do better when they have relationships with both of their parents. A relocating parent who uses gatekeeping behaviors to exclude the non-custodial parent leaves the child at risk for alienation, visitation refusal, and other troubling behaviors.
7. INTERPARENTAL CONFLICT AND DOMESTIC VIOLENCE: Numerous studies have shown the negative effects on the children of exposure to verbal conflict between parents. This is particularly true of children whose parents are divorced. As the level of interparental fighting increases, so does the risk to the child. Domestic violence places the child in significant risk regardless if the violence is directly targeted at the child or not.
8. RECENTNESS OF THE MARITAL SEPARATION: Hetherington (1993, 1998 & 1999) researched the effects of conflict on children post-divorce. Hetherington noted that conflict is significantly higher during the time of the divorce and for a period of time after the divorce is final. During that period of time there is less authoritative parenting, greater parental stress, and poorer adjustment by the children. It should be noted that parental conflict tends to decrease at approximately 2 years post divorce. It is much more risky to make a move during the first two years post-divorce since the family unit is still in transition and adjusting to the new family constellation. Holding off on relocation for at least two years post-divorce may allow the individual family members to psychological settle down and thus have the psychological resources to assist the child.To determine the appropriateness of relocation it is important to assess all of the above issues to thoroughly seek out the risks that are facing the child if they move to the new location or they stay in their current location.
William Austin, Ph.D., writing in the journal Family Court Review (2008, p. 359) writes:“The evaluator can help the court by making predictions about the degree of risk for what level of long-term harm, or developmental outcomes for the child, that are likely to be associated with the decisional alternatives. Only the decision maker can determine if the level of predicted risk and stakes surpasses a “threshold of harm” (Austin, 2000b), to deny the child’s relocation, and if needed, to change the primary residential parent. The nexus between best interests and least detriment is central to the process where mental health expert analysis becomes transformed into judicial prediction and decision. In the end, the trier of fact makes a discretionary decision if relocation would be expected to produce a sufficient level of harm to the child to deny the move or if the data suggest there is likely to be a successful relocation.
The evaluator’s risk analysis and behavioral descriptions of the family can help the decision maker reduce the level of uncertainty in resolving the relocation dilemma.”It is essential to fully assess the risks, benefits, and the protective factors to make the best prediction of what is likely to happen to the child with and without the proposed relocation. Developing a plan to mitigate the negative effects of the relocation will entail behavioral accommodations to decrease the risks from the lists above. For example, teaching parents how to decrease conflict; increase appropriate parenting behaviors; allow significant involvement in parenting of the non-custodial parent; assisting the child learn coping skills, etc. will lead to a better outcome regardless if the child relocates or not.Since we do not have a crystal ball that foretells the future a risk assessment evaluation offers the best systematic approach to aid in the determination of what is in the child’s best interest in a potential relocation.
Austin, W.G. (2008b). Relocation, Research, and Forensic Evaluation: Part II: Research in Support of the Relocation Risk Assessment Model. Family Court Review, 46.Braver, Sanford, et. al. (2003) Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations. Journal of Family Psychology, 17, 2.Drutman, H. & Schechtman, M. (2011) Maternal Gatekeeping: What is it, and is it Always Bad? The Family Lawyer, Atlanta Bar Association-Family Law Section. February 2011.Hetherington, E.M. & Kelly, J. (2002) For better or for worse: Divorce reconsidered. New York: Norton.
|Posted on October 1, 2012 at 8:09 PM||comments (63)|
I found this article featured on an attorney’s website from California. I found the article interesting and thought perhaps others would find it helpful or interesting as well. http://cuttingedgelaw.com/category/keywords/divorce-foregiveness
The Power of Forgiveness in Divorce
The power of forgiveness is of immense importance to working with the feelings and difficulties we share in relationship transitions, but it is frequently ignored. In many cases true wrongs were committed and real injuries were inflicted. Forgiveness doesn't deny that, it just offers a perspective and freedom from the cycle of rage and reactivity.
This article discusses one angle of approach that may be useful for guiding lawyers - and their clients who are in the midst of great relationship hurt - to, as a team, overcome reactivity. It is really written to the client, but the implied sensitivities are for the lawyer.
Here is a useful working definition of forgiveness:
"People, upon rationally determining that they have been unfairly treated, forgive when they willfully abandon resentment and related responses (to which they have a right), and endeavor to respond to the wrongdoer based on the moral principle of beneficience, which may include compassion, unconditional worth, generosity, and moral love (to which the wrongdoer, by nature of the hurtful act or acts, has no right)." (Enright and Fitzgibbons)
We tend to think in terms of what seems to be happening to us; this is natural. That sense of separation supports the idea that each of us are unique and special, that we were a victim, and that wrongs must be righted. That conditioned view supports fantasies of punishment and relative justice.
Wounded thinking is like a muscle spasm. It is self-perpetuating. It is mindless. It is a conditioned view that assures continued personal suffering and the experience of havoc in relationship breakup. This view poisons children and many others and helps to make divorce or family law disputes needlessly expensive. Many people choose their lawyers based upon this reactivity, and so they pick a 'guide' who is invested in conflict - or asleep. This is one reason why this matters for lawyers even though the clients are having the primary experience.
But is it true that what people in divorce or relationship break up experience happens only to them? Is what they (we) feel and how they (we) see it any different or more or less true for them (or us) than what the other person - the husband, or wife, or domestic partner - experiences? Is it true that the one we bore a child to, or who bore a child to us, or whom we trusted intensely for a time, is as selfish and insane as we view them to be today? If this may not be true did they change, or did our view of them change? Is it possible that both person's perspectives, attachments, and identifications changed, and that none of it is exactly true?
Might forgiveness alleviate the pain of breakup, and be valuable in setting a course for future relationships that are not mere replays of past patterns of behaving and reacting? If we don't help ourselves and our clients to answer these questions truthfully, then how can a reasonable person expect a different outcome next time? And, of what real value are we? We can be healers, or we will be destroyers.
These are important questions. Our client's answers tend to be different from day to day - from feeling to feeling. This realization says a lot. Yet Truth doesn't shift - does it? The conviction with which we hold certain opinions about others and what they did to us, and our roles, moves all the time.
Such questions invite us to test the stories our minds and our client's minds tell us as thoughts flit and dance and spin, particularly in the midst of breakup. And here is where I begin to refer to lawyers and clients together in one breath.
Humility and perspective are, we can usually agree, good things. In many cases the abuse that people suffered is far from imagined, and terrible victimization may have occurred and the consequences must be worked through. But is being right itself a prescription for wellness?
Victimization can also be self-inflicted. Within the range of behaviors we too have sometimes played a role along with the wrongdoer. Either way, the road towards forgiveness leads to the possibility, only at an appropriate time, that there is nothing more healing that we can do for ourselves than to consider overcoming our grievances by forgiving transgressors.
A Working Definition of "Forgiveness"
What is and what is not forgiveness? Because we need boundaries, and injustices do happen - injustices seem to be happening more than ever - a spirituality of forgiveness that ignores personal safety or equates with allowing continued victimization is neither constructive nor rational. Associating "forgiveness" with 'giving in' or inviting or accepting further pain or suffering is misguided.
Why care about forgiving? Who would dispute that each of us will live longer, happier, more fulfilling and more positive lives if we are not caught in a knot of pain and resentment?
Dr. Robert D. Enright and Dr. Richard P. Fitzgibbons authored "Helping Clients Forgive: An Empirical Guide for Resolving Anger and Restoring Hope", an examination of forgiveness as a tool for the therapeutic community in helping their clients. They offer to professionals, including lawyers, who are assisting people experiencing resentment, anger, hostility, hurt, etc., a model that suggests a way out of the learned legacy of hurt. They suggest this definition of forgiving:
"People, upon rationally determining that they have been unfairly treated, forgive when they wilfully abandon resentment and related responses (to which they have a right), and endeavor to respond to the wrongdoer based on the moral principle of beneficence, which may include compassion, unconditioned worth, generosity, and moral love (to which the wrongdoer, by nature of the hurtful act or acts, has no right)."
This description, being a long one, needs to be broken down to assess what response might be invited. "Rationally determining" assumes that a wrong was committed and that the forgiver was indeed a victim of that wrong. For instance, the forgiver must be free of illusion or undue influence or coercion, such that they do not distort reality (and the risk to them) by forgiving. It is critical not to overlook the fact that a moral wrong may have occurred. Forgiving a real wrong may become all the more hugely liberating.
"Wilfully abandon resentment" describes an active participation in the role of forgiving, and in changing the potency of the ordinary response that is resentment. To willfully or purposefully forgive isn't like flicking a light switch.
The process takes whatever time it takes, whether days or months, and any person may reasonably become ambivalent and uncertain along the journey. Still, this process begins with a conscious election to consider an alternative.
The words "responses" and "respond" refer to feelings, thoughts, and behaviors that accompany, are linked to, and are conditioned with the experience of resentment. Forgiveness is about abandoning resentment and all the natural manifestations of resentment within the process. Our conditioned reactivities serve to perpetuate a sense of personal pain and misery by obsessing the wrongs we have suffered: This thought process is repetitive; the feelings may make us ill; and our responses tend not to be reactionary and to add a layer of wrong upon a wrong, and even to impose collateral damage on others which we usually do not intend.
"Beneficence" is described as a moral principle. Moral principles are described as the quest for the good in human interaction. Morality implies justice and mercy. Justice precedes mercy when someone forgives, because forgiveness is a merciful response to an injustice - "in other words, the one who forgives has a clear sense of right and wrong, concludes that the other acted wrongly, and offers mercy. Forgiveness is centered in the forgiver's genuine desire for good toward the one who unfairly hurt him or her." [Enright and Fitzgibbons, supra, at page 23]. Beneficence is an authentic sense of goodness in which people aid others without thought of what they have done or can do for them. It is mercy offered without any motivation for a return, especially the return of feeling morally superior, or gracious.
"Compassion" denotes the idea that the forgiver suffers along with the injurer, despite whether the injurer themselves actually feel remorse or regret. Instead, the forgiver has a sympathetic sense of the other's frailties and identifies with that common state of existence. Is not dependent upon the other's admission of guilt.
"Unconditioned worth" is a recognition that all persons are entitled to be uniquely valued for what they are as human beings, irrespective of what they have done or done to others. It is a placing of value upon the condition of humanness. It can seem a tall order, but only if we view the person as nothing more than what they say or do and as having no divinity beyond those narrow constructs.
"Generosity" recognizes that the offender is given more than he or she deserves based upon their words or deeds, for no reason other than their unconditioned worth as persons.
"Moral love" expresses generosity and beneficence by investing in the other's well-being, despite everything else. This may consist of a softening of the heart of the aggrieved towards the offender, and according to Enright and Fitzgibbons, this aspect of forgiving may take a really long time and require that one first work through appropriate stages of anger and grief lasting for extended periods.
None of these elements are to be rushed, and it should be obvious that forgiveness can only be genuine where it is spontaneously and freely given with a full recognition of the nature of the wrong and the pain of its hurt. Forgiveness is worth exploring in divorce and family strife. It is certainly an attitude that will help bring sanity to the processing of the traumas that we commonly suffer from. After all - all beings desire to regain peace and happiness.
|Posted on September 21, 2012 at 12:28 PM||comments (477)|
What Financial Information Am I Required to Disclose in Child Support Cases and Divorce Cases?
New Mexico law provides that in Family Law cases such as Divorce and Child Support matters, certain highly detailed financial information must be disclosed. Before beginning the legal process, there are a number of documents that you should try to obtain. These documents are used for the purposes of determining interim division of income and expenses, spousal support, and child support.
1. All state and federal tax returns for the last two years;
2. Mortgage and property tax statements for any real property;
3. Paystubs for the previous six months;
4. 401(K) and/or IRA and/or Pension statements for the previous one year;
5. Credit card monthly statements for the last twelve months;
6. Monthly statements for all bank accounts and investments;
7. Loans documents;
8. Monthly bills to include rent, PNM, water, cable etc.
9. Transportation expenses;
10. Insurance documents
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