Common Sense Rules for Parents During Custody Disputes

Posted: August 23rd, 2016 by

Lisa Shapson, The Legal Intelligencer (online)

Here’s something all family law practitioners can relate to:  a judge, post-in camera interview, relating the children’s version of a specific event or view as to why the current custody schedule is not working, which often differs from one or both parents’ testimony. The children’s version can be quite telling as to what is really going on in the case after stripping away the lawyers, third parties and paperwork.

In both Pennsylvania and New Jersey, whether to interview children in custody cases is at the judge’s discretion; it is not considered reversible error if a judge declines to do so (see Pa.R.C.P. 1915.11-1(b) and N.J.R.C.P. 5:8-6). A Philadelphia County judge once told me that she always conducts child interviews because it is the only way she can find out the truth. Let’s face it, all children are watching their parents every day—and even their friends’ parents—observing just about everything they do, regardless of whether parents are happily married or on the brink of divorce. What kind of parent should children see?

In my opinion, there are five common sense rules that all parents, and not just custody litigants, should follow in order to avoid some mistakes many parents make. Family law practitioners should advise clients to keep these tips in mind not only in general, but also when navigating through custody litigation.

• Be the children’s parent, not their friend.

While liberating feelings post-separation or divorce can have a rejuvenating effect on mom or dad, some parents go so far as to act like a child themselves. Parents need to remember to always be the grown-up in relationships with children; they are neither your therapist nor your bestie.

Children are heavily influenced by their parents’ lens of the family’s situation and while it is OK for parents to be open so that the children feel comfortable talking to them, children must be respectful of both parents at all times. For example, a child bashing one parent to another should never be supported. Parents need to remember that they are in charge and responsible for raising respectable adults. In custody disputes, some parties make the mistake of acting like their children’s colleague by sharing court filings and resulting orders—things that children should rarely, if ever, be privy to.

• Never present a negative image of the other parent.

Everyone knows that parents should not speak negatively about each other to the children or to third parties, especially when the children are within earshot. Although this sounds like common sense, you would be surprised how many people confide their version of the custody dispute—or worse yet—their opinion of the other party’s parenting skills. But there are other, more subtle and indirect ways that parents send a negative opinion of the other parent. Has your client called you with the children chatting in the background? Call them out on this each and every time, insisting that they ensure the children cannot hear their conversation or have access to a second phone extension.

One example I witnessed involved a father who thought it was funny to create a fake dating page so he could follow his ex-wife on certain dating websites. He would access the dating cite from his phone, laughing with his 8 and 10-year-old sons about the guys with whom his ex was connected. Clearly, he was sending a negative message to the boys about their mother and her dating prospects without directly saying anything negative about her. Parents need to save any juvenile thoughts and behavior toward the other parent for times when the children are not around.

A not-so-subtle example is being able to cut the air with a knife during custody exchanges. The children are watching. Behavior without words also sends a message, so parents should tread lightly and, at a minimum, treat each other with civility.

• Communicate with the other parent verbally whenever possible and respectfully at all times.

Today, most of our communication with other people, even those with whom we get along, is done electronically. We rarely pick up the phone to actually call people other than our own parents. But not all electronic communications, while efficient, are that effective when it comes to separated or divorced parents.

With text messages and emails, tone can often be misinterpreted. Waiting for a typed response as opposed to a verbal answer that allows give and take leaves a larger margin of error. Unless the communication is simple and routine, such as, “I can get the girls after school today,” I recommend picking up the phone.

All important issues, e.g., introducing the children to a new significant other, should be verbalized to the other parent either in person or over the telephone when neither parent has the children. And, if clients must speak with the other parent when they have the children, never fight in front of them; table any discussion that starts to escalate. With practice, chatting verbally can be the most efficient and effective way to communicate on major decisions such as a school or medical issue.

• Avoid the urge to use social media as therapy.

Children do not need to know the ins and outs of their parents’ dating life. The odyssey of a new love interest should not be easily accessible when kids grab a parent’s cellphone, just as it should not be accessible on social media channels where the other parent, children’s friends and their parents, extended family members, that kid from high school, etc. are following. Children should learn about new relationships from that parent, not through the grapevine of people who follow them on social media.

• Try walking a day in the other parent’s shoes.

Empathy is probably the hardest of all because many parents often see themselves as doing all of the sacrificing for the children without appreciating the other parent’s contributions. For this reason, many custody litigants have a hard time being flexible with schedule changes requested by the other parent. For example, the parent with the longest work hours probably thinks that he or she is working really hard to financially provide for the children and therefore cannot leave work early to assist the other parent with evening pick up or drop off logistics. Similarly, the parent who sacrifices his or her workday and leaves work early all of the time, but needs coverage for an extended workday or evening function, may feel as though he or she does everything all week long and that the other parent should be able to help him or her “just this one time.”

Clients should try to view things from the other parent’s perspective and be flexible with the custody schedule so that temporary changes in either the other parent’s or children’s schedules can be accommodated. They should keep in mind how they would like to be treated when they need a schedule modification.

While everyone knows they should put children first and avoid conveying any negative thoughts concerning the other parent, children often observe more than adults give them credit for. The bottom line here is for all adults to be conscientious of their behavior, especially in front of children. Children seeing parents treating each other with dignity and respect is the only channel they should be watching.

Reprinted with permission from the AUGUST 23, 2016 issue of THE LEGAL INTELLIGENCER (online). © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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