I was talking to a woman the other day who was asking me all sorts of things about her upcoming custody case and the decisions she should be making. The (first time) mother of a very young son, she had never navigated this kind of territory before. Though she hoped to be able to reach an agreement for custody and visitation out of court, she also wanted to be sure she was as prepared as possible in the event that her case did wind up in a courtroom.
We were talking about coparenting, and how best to help dad develop a relationship with the child (while not impacting mom’s ability to parent the way she always imagined she would). She told me she had been texting and emailing him information, as well as making sure the child was available for Skype calls and other ways of contact. “Should I stop doing that?” she asked me. “I don’t want him to be able to go into court and tell the judge exactly what the pediatrician said, when he didn’t go, but because I told him!”
It’s a good question, and one I’ve heard lots of different versions of over the years. You don’t want to just hand information over to the enemy! (Even if calling your child’s father the enemy is admittedly a bit dramatic and over the top.)
I reminded her of the best interests of the child factors and encouraged her to read them in more detail. It’s easy to think, “Oh, another statute, blah blah blah,” but in the case of the best interests of the child factors, nothing could be further from the truth. These factors are so incredibly important, we (that is to say, experienced custody attorneys) base our entire case around them! There’s literally nothing more important than these factors and showing that our client is doing everything in her power to serve the child’s best interests.
While it’s easy to argue that you are, of course, attempting to serve the child’s best interests, the factors help you go a step further because they specifically enumerate the kinds of things that the court believes is in a child’s best interests. Though the way the factors are applied may be subjective, the factors themselves are written there in black and white. The factors help ground a custody case by giving us specific things to mention and focus on, which is helpful – not to mention good for you now, today, as you begin to build your own custody case.
So, what are the best interests of the child factors?
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
So, what’s the answer to the question? Should I withhold information?
Yeah, keep to the point. What’s the answer to the question I posed at the beginning of this article? Is it better to keep information from, say, a pediatrician to yourself, or hand it over to your child’s father when you know full well that will mean he can knowledgeably speak about issues that he has taken no personal interest in? Surely we want to show that he ISN’T coming to those appointments, that he isn’t involved, and that him caring for the child more than is necessary is not in the child’s best interests, right?
Well, yes, sort of – but it doesn’t follow that you should behave badly in order to prove this point. It’s never a good idea to withhold information, especially given that one of the major tenets of legal custody is that you and he should collaborate on non emergency medical care. By attending appointments and either not advising him of them or not telling him about what happened at each appointment, you’re not really showing good coparenting skills. We can show that he didn’t attend the appointment, but we don’t want to do that if we’d also show that you’re not providing him with information regarding the child’s development or any other medical needs.
Remember factor number 6 – and go back and review it, if necessary. We sometimes call this the mom’s downfall, because it’s things like this that end up biting mom in the backside later on. Sure, if he doesn’t care enough to go, that shows something. But I don’t want to let your behavior also show the court something unpleasant about you.
Coparenting is hard, and it means being the bigger person in a lot of different ways. Just because he’s doing things wrong doesn’t mean that you should; in fact, I think it’s a really good argument that you should keep going above and beyond to do everything in your power to make sure the children are taken care of as well as possible. Don’t think about your child’s father and his case, think about your children and what is best for them – and that’ll generally point you in the right direction.
The Transition Between Mom’s House and Dad’s House
The transition between mom’s house and dad’s house can create a lot of tension, especially when transitions are difficult.
A common question I get is, “What happens when he doesn’t respect the routine?” Is dad showing the court that he’s not really fit to handle custody? Obviously, the schedule is in the child’s best interests. …Right?
Man oh man, do I get it. As a mom myself, I am a major proponent of schedules. I don’t like any disruption at all. I’m not one who is just like, “Oh, well, it’s only one day.” That’s not how I feel about it at all. And, actually, I feel like one day of a disrupted nap is one day closer to no nap or something terrible like that!
But… I don’t think it’s fair to say that the court shares my opinion on the importance of schedules, and likely won’t think the same as you do, either. My experience is that, when it comes to custody and visitation, the court accepts that mom and dad will parent differently. And the court believes that it’s important to let each parent actually parent. That doesn’t mean that dad has to parent the way you think he should parent, or do the things that work for you. Sure, if you want to share suggestions back and forth, that’s great. But you don’t have to.
Does that mean I’ll get a miserable, grumpy kid back after dad’s weekends?
Maybe. That’s a complaint I get a lot, even aside from any discussion of what schedule is or is not in a child’s best interests.
Transitioning between mom’s house and dad’s house is kind of complicated, and many kids struggle with the switch. The rules may be different from one house to a next, or they may just be reacting to the tension that they’re feeling between the two of you. It’s not easy, but it’s normal – and the difficulty in the back and forth isn’t, in and of itself, an argument that a different custodial arrangement is in the children’s best interests.
I’m not saying it’s easy or fair, but I think it’s unlikely that you’ll get a ton of sympathy from the judge unless there’s something bigger going on.
It’s really detrimental for my child’s schedule to be ignored.
Though I’d argue that a schedule is important for any child, there are certainly some for whom it’s even more important than others.
In any litigated case, what happens is ultimately down to what you can convince the judge of. You’ll need evidence, and you’ll likely need expert witnesses or others to testify about the unique challenges your child faces.
It’s not just a question of whether it’s better for the child to have a schedule or not, but rather a question of what, developmentally, is appropriate for this particular child, and whether each parent will be able to meet that child’s unique needs. Each child is unique, and each family has specific challenges. I’m not even going to speculate about what it’d take to “win” this argument, but suffice it to say that you’ll definitely want evidence (in the form of school or doctor’s records, for example) as well as some convincing experts to help convince the court that your position is correct.
Keep in mind, too, that even if you don’t convince the judge on your first go round, you can always try again.
What if I don’t win this time, but it’s detrimental to my child to have his schedule ignored and it shows?
It’s possible that you won’t have all the evidence you’ll need to show what could happen to the child without his routine. But, once you’ve experimented for awhile with the custody and visitation arrangement the court orders (perhaps with dad ignoring the schedule), you’ll gain more evidence.
If the child starts to struggle, or other things become problematic, you will at least have that information to show the judge on the next time in court.
Custody, visitation, and child support are always modifiable based on a material change in circumstances, so you child’s struggle could make up part of the material change. You’ll need a change to modify, but a formerly well adjusted child suffering under a change to his routine would likely get the court’s attention.
Likewise, if you lose at the juvenile court level, you can always appeal the decision to the circuit court and get a trial “de novo”. De novo means that your trial will be brand new, and that none of the evidence from the lower court will come up to the circuit court. So, even if you’re not successful at the juvenile court level, or you’re not willing to wait to see whether the new custodial arrangement will have a negative impact on your child, you can file an appeal.
I get it. Routine is important. And it may be worth it to you to try to prove that your child’s routine is so important that it needs to be respected. It’s definitely worth discussing with an attorney to get an idea of whether you might prevail based on the facts in your particular case.
The court also has a number of coparenting classes you can take – and I definitely recommend that you do, if you think your case might go to court – which could help you as you begin to navigate this territory. It’s not easy; in fact, I think it’s incredibly difficult! But when you’re armed with as much information as possible, you can make the best decisions for yourself and your children.
For more information, to request a copy of our custody book , or to get more information about upcoming custody seminars give our office a call at 757-425-5200.