Child Custody Case

I think one of the hardest things to litigate is child custody. Assuming, that is, that you are willing to see both your client and the other parent as real people. It's easy to argue if you want to approach it as a winner take all type of litigation. But, child custody generally shouldn't be argued that way. Unless there is some clear reason that the other party is an unfit parent, then there is no basis for trying to cut them out of the child's life.

The problem is that each parent thinks they ought to be the one in charge of their child's life. Or, they feel that the other parent should not be. Sometimes this is because they harbor a long term resentment against them for the pain they suffered during the break up of their relationship. Sometimes, it is a selfish, me first, attitude - you know, like a toddler who can't share.

In either case, it is extremely difficult to sit down and negotiate a custody agreement that is friendly to both parents. Aside from any issues between them, there is the practical side. I was in a settlement conference today. We were talking about setting up 50/50 parenting time. But, then we looked at the logistics.

The mother works second shift, from 3 to 11. The child is 2. We don't want her boyfriend watching the baby, but, she doesn't want the baby at my client's house overnight. That feels too much like losing control for her. We can't meet at 11:30 at night to exchange the baby, so either the mother gets the baby and she is raised by the boyfriend, or the father gets the baby more than 50% of the time and becomes the  primary parent.

The mother is against this. She has one child that is already not in her custody. My sense of it is that she feels like giving up primary custody would be a sign of complete failure on her part. She would have to admit she can't be a good mother. No one wants to do that. So, she has to hold her ground. She can't compromise.

In the end, a situation like this will likely end up in Court, where a judge will decide who gets the child when, how and where. The problem is, the Judge doesn't have to live with his prescribed plan, the parents do. No one will be happy with the outcome of the hearing. And, it is probable that the mother will not get as much visitation from the Court as we are offering her.

But, the Court's focus will not be on the interests of either parent, but on the best interest of the child. The child will probably stay where she  is now. The mother may get a little more time, but she has a less reliable history of providing stability for the child. So, when push comes to shove, she will not end up with what she wants.

Yet, my heart goes out to her, because all she really wants is to have her child with her. The problem is, she wants the child even when she can't care for the child and she won't compromise with the father. And, to be fair, the father doesn't want to give up the control he has of the situation now.

One thing that we can't do is get people to think of others first. Yet, in a case like this, walking in the other guy's shoes and not putting your own needs first would go a long way to settling a dispute the way it ought to be settled, between the parents, without the outside influence, stress and pain of a court hearing.

You see, at court hearings, it is generally the worst thing about people that comes out, not the best. People testify about what is bad about the other person, not what is good. So, you can see that this type of  procedure is going to heat up the passions of the people involved, it is going to make them more angry with each other and create more of a gap between them. That is the wrong answer in most cases where children are involved.

Don't get me wrong. I'm all in favor of trials. I love trials. The hard fought battles are exhilarating and challenging. But, you also need to learn to pick your battles, as they say. So, unless there is some danger to the child, it is my opinion that you should go all out to reach an agreement about child custody rather than go through the pain and stress of a trial. You can do it, you just have to put yourself in the other guy's place for a little while.

That's just my thoughts and observations on it. I've had my share of custody fights and, while I can usually get the results my client and I determine are right and just, it is hard to do it without hurt feelings and residual anger. Ultimately, that is not a good result because, after the hearing, the father and mother still have to parent together for however many years it is until the child turns 18.

Something to think about.

Bob Vogel
Trial Attorney
rlvogel@robertvogellaw.com
865-357-1949