I recently recorded a podcast (which will likely air sometime in September – so stay tuned!), and wrote a blog article about giving advice that clients don’t want to hear.
When I was talking with Sheera Herrell about custody on that podcast, she quickly identified custody concerns as the #1 category of types of advice that we, as attorneys, might give that our clients would hate to hear.
Just this morning, I was searching a local moms group I’m a member of on social media, and saw a post that shared that the woman’s husband was an alcoholic and, therefore, she’d be going for sole custody.
The way she said it – like, simply, that there’s this issue with dad and that, therefore, she deserves to get whatever she asked for – surprised me. On some level, of course, I do understand. I’m a mom, too, and I’d certainly want as much parenting time as I could possibly get. If my child’s father was an alcoholic, I’m sure I’d feel that even more keenly.
The truth is, though, that even parents with significant issues – sometimes, even including drug and alcohol abuse – often get more parenting time than the child’s other parent thinks that they should. Obviously, it’s not possible to say exactly what, if anything, would happen in this case; I simply don’t have enough information. Certainly, though, her allegation is not enough to warrant him not getting any parenting time, or even getting more than whatever mom has decided is what she’ll allow.
Custody is incredibly fact specific. I’d need to know a LOT more about this particular dad to even begin to advise his soon-to-be ex. Does he have any criminal convictions, like DUIs? Has he been hospitalized or otherwise treated for alcoholism? Does he have a history of drinking around the children? Driving with them in the car while drunk? Have there been any accidents? Unfortunately, I’m going to need as much documentation – as much evidence, or proof – of his alcoholism as possible. And, also, it’s not JUST a function of whether he’s an alcoholic (which may be debatable, or even unprovable), but whether his alcoholism would mean that he can’t deliver a standard of care that would be in the children’s best interests.
There are lots of things we can do to help limit the impact of drinking. We can put in place provisions that require one (or, as is often the case, both) parent(s) to do a breathalyzer before their parenting time. We can ask that they abstain from alcohol 24 hours before parenting time, and all throughout their time with the kids.
We can ask for drug testing, too. There are some tests that are better for showing alcohol, as opposed to other drugs, that we can utilize – though you should also be aware that these tests are often ordered mutually, so if you’re not darn near completely sober, that might be a risk.
It may be that, if the case goes to court, the judge would feel that putting some of these provisions in place would be enough to protect the kids. It may be that the Guardian ad litem feels like the relationship with dad is a sound one, and that depriving the kids of it – with so little evidence – would cause more harm than good.
At any rate, I’m not here today to just talk about this narrow, limited scenario, but rather to make a larger point about custody and visitation. It’s a wildcard, in a lot of cases.
Sheera pointed out during the podcast – and has said to me on several different occasions – that when she started practicing, back in 1999, things were really different. The non custodial parent (the parent who has the child less) having every other weekend was common.
Today, that’s not true. Our social consciousness about raising children has changed, and more people believe that shared custody should be the norm. In Virginia, there is no law that says specifically that 50/50 custody has to be awarded; in fact, our law says only that all forms of custody (shared, split, and primary physical) have to be considered equally. But the practical impact is that more and more cases see shared custody awarded, especially as a starting point.
For many moms, that’s a terrifying thought. I admit: it would be terrifying for me, too. But, even though its tempting to make it about you – like, that good moms don’t ‘lose’ custody – its not. It’s not a question of ‘winning’ or ‘losing’ custody. It’s only the best interests of the child, and how the court and the Guardian ad litem feel those interests are best met.
These days, barring exceptional circumstances, most judges and Guardians ad litem believe its best for a child to have access to both parents to the greatest degree possible. So, its definitely fair to say we see a lot more shared physical custody awarded than we used to.
It may not be reasonable to expect that you’re going to get primary physical custody. I don’t say this to be defeatist, but in an attempt to help you work through it. I definitely encourage you to discuss your unique case, and the specific facts involved, one on one with an attorney. It may be that whatever you might allege would rise to the level that dad would have less than 50/50 (because, of course, shared custody doesn’t automatically assume 50/50; it’s just a split where the noncustodial parent has 90 or more days in a calendar year), where you’d be awarded primary physical custody, where he’d get supervised visitation, or where he’s not allowed any in person parenting time. There are a lot of options along the continuum of custody and visitation, so it’s worth your time to look into the options.
Shared custody doesn’t necessarily mean 50/50. I know I just said that, but it was important, so I said it again. Sometimes it does mean 50/50, but it doesn’t have to.
Just because you don’t want it doesn’t mean it won’t be awarded, and just saying that you don’t want it isn’t a very convincing argument. To make a sports analogy, it’s as important to have a good offense as a good defense. You can argue against 50/50 all you want (that’s your offense), and maybe you have a good argument. But a good defense means that you propose something else – something that either your child’s father will agree to, or that the judge will find meets the child’s best interests as well as (or better than) the 50/50 arrangement he’s after.
It’s worth your time to put in the time, to consider alternatives, and then to propose them. Maybe your alternative is a bit of a compromise – a little more time than you’d like to give up, but less than 50/50. For his part, he might just feel mollified that he can see the kid(s) on such a regular schedule, and agree to it rather than continue to fight.
Talk to an attorney and get a sense of the value of your allegations. Do you have enough to push for primary physical? It may be a difficult conversation for you to have, especially if your attorney ultimately isn’t convinced that you have enough.
Talk about your goals. Talk about options. Talk about where you’d like to be in a year, in 5 years. Work backwards from there. Talk about whether you need a GAL or, if you already have one, how to work with him or her. Talk about your shortcomings (yes, I’m sorry, you have them) and how to overcome them to put on the best case possible.
You and your attorney are members of the same team, and you should work together to achieve your goals. You should be realistic, but you should also take that feedback and use it to improve your case overall.
Open and meaningful conversations on both sides can go a long way towards ensuring that your case is as successful as possible. To download our custody guide for Virginia moms, or to schedule a consultation, give our office a call at 757-425-5200.