Custody litigation presents a million different ways for mothers to be caught in a potentially devastating catch-22, especially in cases where the non-custodial parent seems to be at something of a disadvantage.
Lately, I’ve seen several different cases where, for example, a mother was granted sole legal and primary physical custody, with very narrow visitation to the father, with mitigating language like “at such times as the parties may agree”.
What does it mean? Well, it’s hard to say. In discussing with my coworkers, I heard a variety of different interpretations – one, that it means that mom has to agree to give dad the time, and, another, that mom must give dad certain time, but the parties should agree on whether extra time should be given.
In another case, a mother, who felt that her child’s father was using custody and visitation litigation (or the threat of continued litigation) to continue to control her, and was unwilling to provide an address where the child would be during a scheduled vacation on her parenting time.
In listening to my coworkers, fellow attorneys, discussing the merits and demerits of these cases – they felt, in general, that the first mother had given her child’s father too much, while the other was dangerously toeing a line of giving him too little.
The thing is, though, that ‘how much is too much?’ and ‘how much is enough?’ is entirely subjective. What we think, as attorneys, might be different from what a Guardian ad litem thinks, which might be different from what one judge things, which may be entirely different from what another judge thinks. In other words, well, who even knows?
But, when we look at moms, and examine their motivations, we try to take a lot of meaning from it. She’s giving dad more time – not because she’s exhausted and at her wit’s end and needs a break and afraid that her failure to give him time would ultimately hurt her case, too – because she thinks he can handle it. When he makes a bad decision, even a REALLY bad decision, well, we can’t dwell on that forever now, can we?
If she’s not giving dad enough time, if there’s no protective order or concrete evidence of abuse, well, then, surely, she’s controlling and manipulative, guilty of parental alienation. Should she give him time, dad would almost certainly show that he’s capable of handling it, and we would really have an opportunity to see how misguided her motivations. Without proof of his abuse – real, documentable, provable, abuse – well, it just doesn’t make sense that she’d behave in this way, except that she wants to keep the children all to herself.
It’s hard to find a middle ground. How do you both protect your children but also not be so protective that it raises a red flag about you, your willingness to coparent, and your ability to follow the best interests of the child factors? You’re supposed to (factor 6) support the child’s continuing relationship with their other parent – but, what does that mean? And what if there’s some real, extenuating circumstances in this particular case (as there so often are)? How do you toe the line without giving away the farm?
It’s such an unfair standard, because I don’t think it’s one that dads share to the same degree. Moms are accused of this type of behavior far more often than dads, and with more concrete consequences. It’s looked at as willful, deliberate when a mother does it; rarely is the lens trained on the dad with the same suspicion and severity.
I don’t say this because I have a solution to offer, either – but mostly to add to the discourse so that you know how heavily your choices will be scrutinized. That may not make the choices that you must make over the coming days, weeks, months, and years more clear to you, but it will at least let you know to carefully consider those choices. In general, we recommend extreme documentation – of the time offered, the time given, the issues that come up – and communication with your child’s other parent in a medium that will allow us to take evidence from it, if necessary, for any upcoming hearings. Our Family Wizard, for example, is a great coparenting program, but you could also communicate through emails and text messages, and we’d be able to get written documentation of the specific communication that took place.
It’s also not a bad idea to have a working familiarity with the best interests of the child factors, understand how child custody and visitation decisions are reached in Virginia, and even have a consultation, retain an attorney, or routinely meet with an attorney to discuss your case while it’s ongoing. Maybe you don’t have a pending case right this minute, but custody, visitation, and child support are always modifiable based on a material change, so the choices that you’re making – even without a pending case – will be relevant if/when your current order is modified. So, it matters, even if there’s no ‘drop dead date’ coming up where you know you’ll be in court.
Talking to an attorney will at least give you a sounding board. There’s no question we have a subjective viewpoint, too, which may or may not be identical to that of the Guardian ad litem or judge involved in your case – but it’s based on seeing lots and lots of these cases play out over the years, so we can at least make sure you’re aware of the potential problems and issues you might come up against, as well as give you some food for thought.
When it comes to custody and visitation, you can’t be too careful. You’ve got to hit all the right notes, and there’s no that much room for error. Even though – like in parenthood – there’s no guidebook, we can help guide you through much more effectively than you can on your own!