I have come to the realization that the longer two people are together in a relationship, not only do they know what makes the other one tick, but they also know what it takes to get under the other’s skin. They know how to push each other’s buttons.
In my role as a family law attorney I see this in the form of the stay-at-home-mom/wife, who calls me crying because her husband with the 70-80 hour per week, high stress job, has told her that he is going to get primary physical custody of the parties’ three children under age 7 because she had whatever issue in the past. That issue could be supposed mental health issues, a poor relationship with her parents, lack of a college degree, one too many glasses of wine one night with her friends – you name it. What he says isn’t as important as the fact that he said something to stir the pot.
My response is some form of, “Don’t take the bait.” I try to slow down the client’s thought process, get him or her to think through the problem logically and realize that this is more of an attempt to rattle my client than it is a legitimate threat. In my example, the husband knows the exact issue my client holds most dear and goes right after it. Does anyone think that a person who works 70-80 hours per week can care for three small children? Of course not.
The comment is purely bait to see what the reaction will be. If the inflammatory comment gets no reaction, then the effort failed. If the comment gets a strong reaction and starts a sort of ad hominem based argument between the two parties, the instigator has achieved his or her diabolical goal, destabilizing the other side. The question goes back to the recipient of the first comment taking the bait or not taking the bait. Complicating all of this is that we now live in the text message era.
These days, almost exclusively, spouses who are divorcing communicate by text because it is a sufficient form of communication but also sufficiently lacking in intimacy that two parties can communicate without really personally interacting via telephone call or in-person. While that can be a good thing, the downside is that every nugget of interaction is captured and preserved for, seemingly, eternity. Rarely is there a custody trial where each side does not have a one-inch-thick pack of printed out text messages showing the incendiary comments one side made about the other.
In my experience, the side offering the pack of texts either edits out his or her initial comments or is oblivious to the fact that his or her comments could be read as incendiary. Also, query whether judges or their law clerks actually read all of these texts and give them any weight?
The court system’s reaction to the packs of texts trying to show one side behaving badly has been to direct both sides to sign up and pay for one of the monitored communication apps like “Our Family Wizard” (OFW). For those not familiar, OFW is a texting app that allows both sides, attorneys and a fact finder like a judge, access to the communications between the parties. The idea being that if the parties feel that someone is looking over their shoulders, they will treat each other with respect.
I have found that what you get is some combination of condescending passive/aggressive behavior on one side and the same old nastiness on the other. I think custody litigants have come to the conclusion that even though a judge can read the posts on OFW at any point in time, no judge has the time to take an afternoon to read 20 or 30 different sets of parents’ text messages for the last two weeks.
As another example, say you’re the father of two children with a mentally ill mother with overly involved and enabling parents. They insist on videotaping every custody exchange and narrating the video. The narration is far from the truth. What do you do? Most people can only take so much before they snap. Guess what is going to be the end result of the self-serving video edit? It is not going to be the months of tormenting the father has endured, it is going to be the moment when the father’s frustration overwhelms him.
So, what is the moral of the story? Just like I said at the beginning of this post, “Don’t take the bait.” Falling into the trap of reacting unnecessarily to a comment from a former partner that is intended only to get a rise out of you is more stressful and damaging to you and your position than just ignoring the comment from the beginning. I know this is hard to do, but the risk you run is that you fall into a trap where your comments are taken out of context and you are made into the aggressor.
Your family law attorney is there to listen to your frustrations and offer whatever comments he or she has. It may be that court intervention is necessary; or it may be that no matter what a judge says to the party making the initial inflammatory comments, this has no effect and in that instance, unfortunately, you are going to have to live with the comments the other side makes. Just remember, don’t take the bait.
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