CHILD CUSTODY SECRET: KNOWING WHEN THE COURT CAN HELP YOU, AND WHEN IT CAN’T.

Thomas Ferreira here, divorce and child custody mediator in North San Diego County.  I want to let you in on a strategic secret that can save you thousands in lawyer costs and untold grief.

I have a question for those of you who are divorcing, have a paternity case pending or a support case pending:

Have you ever had some disagreement with your soon-to-be-ex, and vowed that you were going to take him/her to court?  Maybe you then had second thoughts later, because court is expensive and complicated.  What is an appropriate issue to stand pat and file that Request for Order?  And When should you suck it up and go on with life?

If your children are in actual danger because of the other parent’s abuse or neglect, you’ve got to act.  But what if he’s usually more than 15 minutes late to the transition point, and never calls ahead to say he’s running late?

THE COURT IS A BLUNT INSTRUMENT:

Our court system comes from merry old England, and is designed primarily to transfer money from one pocket into another and to determine the guilt or innocence of those accused of crimes.  These tasks are “all or nothing” situations.  “The court finds that you operated your automobile in a negligent manner, causing the plaintiff to suffer damages.”  Or, “We, the jury, find the defendant guilty of murder in the first degree.”

In family law, the court is asked to manage an ongoing relationship.  Courts generally struggle with the management of relationships.  When children are involved in divorce or paternity proceedings, the court is asked to act as “super-parent,” to resolve disagreements when parents can’t agree on what’s best for the children.  But your judge wasn’t there to see what happened, and the evidence is often conflicting.  When the issue is trivial, the courts expect the parents to behave “like adults” and not involve the court in petty disputes.

The court is good at making sweeping decrees, such as “I am awarding joint legal custody to the parents, with primary physical custody to the mother.”  The court will usually adopt one of the form, recurring visitation schedules, such as a 2-2-3 or alternate weekends.  The court can find that visits with a parent must be professionally supervised if there are issues of gross neglect or abuse.

The court is less able to regulate more minor issues such as whether to enroll Junior in football or baseball, or whether he should be allowed to grow his hair long.  In family law, we lawyers sometimes call this type of issue a “garbage issue.”

THE CHILD WELFARE TEST:

My clients often ask me to file for emergency orders over hygiene issues or possible drinking and partying.  When doing so, I ask this question:  is there a Child Welfare investigation pending?  If not, why not?

In my experience, the trend in family law is to give generous parenting time to “non-custodial parents” (usually dads).  Before you ask for full custody of the children and no overnight visitation to the other parent, ask yourself if that other parent is “adequate.”  Not, “is she a good parent,” but is she an “adequate parent?”  Today’s family courts usually grant liberal, overnight parenting time to “adequate parents.”  An inadequate parent is one who has committed an act of child neglect, such as placing the child in danger, or perhaps one with serious substance abuse problems.

MAJOR IN MAJORS AND MINOR IN MINORS:

If you just don’t like the books dad reads to the kids, or think his new girlfriend is a bad influence, I have three words for you:  “let it go.”  This is not just good co-parenting advice; it is good litigation strategy.  If you are the tolerant one and support the other parent’s relationship to the children, you’re more likely be found to be the parent who supports “frequent and continuing contact” with the other parent.  I have handled many cases where a parent lost significant time with the children because they nitpicked about the other parent’s world.  You’ll do better if you support frequent and continuing contact with the other parent.

It’s a paradox.  If you want more time with Johnny, you have to be supportive of his parenting time with dad or mom, and not raise a bunch of ticky-tacky issues with the court.  The court wants you to cooperate in raising Johnny.  Save the big guns to deal with major problems, such as that move-away situation or problems of neglect and abuse.

This isn’t easy.  It requires large amounts of grace and patience.  But it pays off over the long haul.

And if you want to commiserate, you can join the Divorce Life Solutions Meetup group.

Stay tuned for next week’s blog, and until then,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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