Children of Divorce : S.D. Court Is Caught in Holiday Tug of War

Times Staff Writer

This mother's ex-husband was not about to see their child on Christmas morning.

She had read a psychological study urging that children be given time to play with their presents after opening them--to "bond" with the toys, according to San Diego divorce lawyer Beatrice Snider, who met with the woman earlier this month--and she was not going to risk her child's psychic well-being.

No matter if dad did not understand how it could hurt the child to be whisked off to be with him.

Then there are fathers like the one who told Mary Swenson, a family counselor with the San Diego County Superior Court, that he would not return his children to their mother for Christmas.

Through mediation, he relented--but declared that, for his kids, Christmas this year would be Dec. 26, when he'd have them back.

Happy holidays?

Not for many families shattered by divorce. For them, Christmas is a time for anger and frustration. And the days before Christmas are a time for ex-wives to declare war on ex-husbands, making judges' and counselors' offices the battleground and children the booty of combat.

"The poor kids are going back and forth and getting torn apart," a weary Swenson said last week, in the thick of an annual rush that jams the court's Family Counseling Services each December as divorced and separated parents quarrel over the right to spend Christmas with their children.

"I'm supposed to create some magic where everyone will be happy," said Swenson, who got her first "Christmas call" of the year in late November and hasn't stopped receiving them since. "The reality is you can't cut kids in two. They can't be in two places at the same time."

Attorneys say San Diego's domestic court has cut down on last-minute custody battles by urging ex-spouses to agree to Christmas sharing arrangements at the time of their divorces and by requiring couples to submit to mediation by the counseling service.

But while many couples resolve their differences without intervention, the disputes demanding public agencies' attention persist:

- Murray Bloom, director of the counseling service, expects his staff of 18 counselors to handle about 600 cases this month instead of the normal 520--an increase of about 15%. Two part-time counselors are on full-time schedules to help with the Christmas rush.

- Lawyers are lining up outside the chambers of Superior Court Judge Thomas Murphy, supervising judge of the domestic court, hoping for a few minutes to plead their cases for a change in custody or visitation plans. There are no statistics to measure the increase in court activity, but Andrew Wagner, former chairman of the family law section of the San Diego County Bar Assn., calls the action "frantic."

- Based on past years' experience, investigators in the child stealing unit of the county district attorney's office anticipate a swelling of complaints during the holidays. The end of summer vacation is the busiest season for allegations of child stealing, but Christmas runs a strong second, according to investigator Sharon Almond.

"Cases that are a minor disturbance in the middle of the summer become a major brouhaha at Christmas time," said Shain Haug, a San Diego lawyer with a substantial divorce practice. "Everybody wants to feel good, and you can only feel good if you have the kids, and the kids can only be spread around so much."

The hostilities are worst in the first years after a family breaks apart, lawyers and counselors say. "People are staking out their territory," said Edward Huntington, a San Diego divorce lawyer.

"Each parent is trying to define . . . the new family, and each of them thinks they're the essence of the family holiday," said Huntington, who last year was called in by the Superior Court to sit as an acting judge during the Christmas crunch. "And actually, there is no salvageable family holiday."

Fights between former spouses, instigated at times by grandparents or other relatives and fanned by children trying to please one parent or the other, can shatter whatever holiday is salvaged.

Breffni Barrett, a private family therapist who works with the courts, recalled getting a call at home last Christmas Eve from a father in the East who had just hung up on his ex-wife in San Diego.

The children were visiting dad, Barrett explained, and mom's hysterical call had left everyone in tears.

"The need of the parent to win or to be seen as a good parent or be seen as the better parent prevails sometimes," said Barrett, president of the San Diego Family Institute.

Barrett was angered, too, at having his Christmas Eve disturbed. In fact, many divorce lawyers and family counselors say the bruising conflicts and time pressures of the season make December as unhappy a month for them as it is for their clients.

"Absolutely without question, it is one of the most stressful times in any dissolution lawyer's career," said divorce lawyer Marshall Hockett. "It's very frustrating and it's very time consuming. It bothers me to have to charge the amount of money we charge on an hourly basis to deal with something that in reality ought to be worked out by the parties."

Long-distance divorces often engender the most difficult custody disputes, because logistics can add to the emotional trauma of being separated from one's children on the year's most special day.

"One party will be trying to set up a visit via American Airlines and it's not acceptable to the other party," Hockett said. "And suddenly you're in a terrible morass and you have to ask the court to help find some solution."

The Superior Court amended its rules earlier this year to discourage lawyers from bringing holiday-season custody fights to court at the last minute. Superior Court Judge Anthony Joseph, Murphy's predecessor as supervising judge in the domestic courts, wanted time to investigate the parents' conflicting claims before deciding how the children's time should be split during the holidays.

But lawyers say Murphy has accommodated the tardy requests. "The very nature of people is such that they're going to have these last-minute problems, and they're going to need somebody to make a decision," Murphy said.

Differences can arise whether the parents have a detailed agreement on child-sharing or not, but most lawyers agree that reaching an understanding in advance will reduce the likelihood of a Christmas crisis.

"Some lawyers are learning that you put something in (the divorce decree) about Christmas no matter what else you say," Haug said.

Other attorneys seek out clients during the fall to see if a Christmas custody struggle is developing. "If you can deal with it then, with tempers not so hot and plans not being set so solidly, you can make an accommodation," Snider said. "People aren't wedded to their positions in September."

Yet parents who have battled through marriage and then through a heated divorce sometimes cannot be assuaged. Instead, their philosophical differences about child rearing are only magnified by the coming of the holidays.

Snider says she fought--and lost--the case of a mother, a Jehovah's Witness, who did not want her child to spend Christmas with her ex-husband. Because Jehovah's Witnesses don't engage in holiday celebration, the mother did not want her child exposed to the father's family, which greeted the holiday with the customary festivities.

Huntington had more success when he found himself in the middle of a Christmas struggle for a 6-year-old girl's heart and mind. The mother wanted the child to believe in Santa, while the father had no truck with St. Nick.

"We got an order that neither party shall speak disparagingly of the other person, nor shall anybody speak about Santa Claus with the child," Huntington said.

Around the office, he said, the provision will always be known as "the Santa clause."

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