More and more, the mental health dimension of divorce–one of the biggest life stressors– is being accounted for in the legal system. Is this the right tool in your case? All marriages should be seriously evaluated to determine if they can be saved.
Ciyou & Dixon, P.C. advocates are firm believers that the hum-drum of marriage masks reality: the grass is not greener on the other side of the fence. That perfect family and life does not exist. For the most part, any situation is what you make of it.
Is this your marriage and can counseling help? A key to evaluating the need for counseling, which may really de-construct the actual or perceived problems of the marriage and its continuation, is to understand what a divorce court may order and under what circumstances.
Under Indiana law, a court may order counseling before or after divorce. However, in order for a court to do so, it is incumbent upon the parties and their attorney or others involved in the case to make this need apparent to the trial court judge.
A. Counseling while a case pends.
How is this accomplished? In cases where a divorce or legal separation has been filed, a court may require the parties to seek counseling for themselves or for a child of the parties under terms and conditions the court considers appropriate in three factual circumstances:
- A party makes a motion for counseling in an effort to improve the conditions of their marriage. This is because an inherent component of a legal separation and a waiting period for divorce is a “cooling off” so the parties can evaluate if a marriage can be repaired. Marriage is a building block of our society socially, psychologically, financially and legally.
- A party, the child of the parties, the child’s guardian ad litem or court appointed special advocate, or the court (on its own) makes a motion for counseling for the child. Unlike the parties who are generally free to make their own choices, even those not well advised, children are given special protection by courts who are charged to look out for their best interests, parents’ acts and omissions notwithstanding.
- The court makes a motion for counseling for the parties who are the parents of a child less than eighteen (18) years of age. Ultimately, if a child does not have a GAL or CASA, but the court thinks the parents’ relationship viz-a-vie the child is not what it should be, it may order the parents to counseling to help them mitigate their improper behaviors.
As with most legal provisions, there are two (2) important, and perhaps obvious, limitations on this counseling:
- The court may not require this joint counseling without the consent of the parties.
- The court may not require this if there is evidence that the other party has a pattern of domestic or family violence against a family or household member.
B. Counseling post divorce.
Once a divorce is final, the trial court loses jurisdiction of the parties and property to require to attend counseling except as it relates to the child. There is wide judicial discretion here and counseling of some type is fairly common. The legal authority is much more diverse and opaque in the post-decree context.
To utilize this, an understanding of how it may arise and be utilized is critical. The most common type of counseling is for the child; and the means to accomplish this are set forth in a statute allowing counseling to be ordered for a child on:
- The Court’s own motion.
- The motion of a party.
- The motion of the child.
- The motion of the child’s guardian ad litem.
- The motion of the court’s appointed special advocate.
In addition, the court has the inherent jurisdiction to order the parents and/or the child to have counseling, therapy and the like under its custody order in order to meet a child’s best interests. Finally, a provision for counseling is often a standard provision of a parenting coordination order.
Ciyou & Dixon, P.C. advocates may partner with you to evaluate counsel as a tool to address whether the marriage should continue or whether it should be dissolved. Where this has occurred, counseling may be a consideration to avoid litigation and make co-parenting workable. Ciyou & Dixon, P.C. advocates practice throughout the state. Perhaps our approach is right for you?