5 Mistakes that parents make in custody cases
Parents often make tactical mistakes when it comes to exercising parental rights and court proceedings related to children. In our practice, we have seen many situations when a parent makes an obvious mistake that can cost him custody of the child or the ability to maintain personal contact with the child.
In this text, we will talk about the most common mistakes that directly and indirectly affect the outcome of the family dispute, but also the quality of the relationship with the child, as well as the reasons why they occur.
Mistake #1: Forbidding the other parent to maintain contacts with the child
Prohibition of contacts can be justified in situations where there is a real danger to the child’s psycho-physical health when the child is with the other parent or for other justified reasons, while everything else is not in the best interest of the child and will not be considered a justified reason. Justifiable reasons are, most often, situations when the other parent:
- Is violent towards the child
- Consumes drugs or alcohol in the presence of a child
- Otherwise endangers the safety or health of the child (eg leaves the child unattended, does not give the child food)
Also, there may be ad hoc reasons of a health or educational nature (eg the child is in a math competition or there is a written recommendation from a doctor that the child should not leave the house for health reasons).
Therefore, the reasons must be real and justified.
In our practice, parents (whether they are clients of our law firm or the opposite party to our clients) in most cases when they made this decision themselves, made a wrong assessment about whether they should forbid contact.
The parent with whom the child lives must not use the child as a means of blackmailing or manipulating the other parent. That parent must respect the court decision on visitation (if it exists), that is, if the court decision does not yet exist, to enable contact between the child and the other parent as agreed. Therefore, the parent must always act in the best interest of the child, and facilitating contacts between the child and the other parent and encouraging such seeing is precisely taking care of the best interest of the child.
We often witness situations when parents forbid a visit without valid reasons. If, without adequate reasons, it prohibits contact between the child and the other parent, it means that the parent is not acting in the best interest of the child, because it is indisputably the best interest of the child to have regular and uninterrupted contact with the parent with whom he does not live. Family law judges see this behavior as a show of power and a way to hurt the other parent, but also an attempt to alienate the child from the other parent, which is precisely the most often goal of the parent who forbids contact. Therefore, this kind of behavior can easily “backfire” on that parent because it can have major legal consequences for his and the child’s relationship.
In practice, unfortunately, it happens that parents “introduce” visitation bans for unjustified reasons, e.g. because the other parent did not pay alimony, because the other parent has a new partner, because the other parent was unpleasant in communication, or because, according to the parents, the child does not want to see the other parent. In such situations, parents often try to convince their lawyer, judge, workers at the social work center that the visitation ban is for the good of the child and that in this way they show that they care for the child. The truth is of course far from that.
As one of the many (above) examples – failure to provide child maintenance is not a reason for a visitation ban, because that parent has an obligation to pay alimony. If a parent does not pay alimony, the other parent has various legal mechanisms available to enforce alimony. It is not a solution to non-payment of alimony, i.e. violation of the legal obligation of that parent, that the other parent also violates his obligation to facilitate contacts between the child and the other parent.
Also, one of the frequent excuses for not allowing visits is that the child is sick. The illness of the child is not a reason for the visit not to take place. The only situation where this would be justified is when there is a written instruction from the doctor that the child must rest strictly and must not leave the house.
There is a fine line between justified and unjustified. It is of crucial importance that the parent in such situations consult with a family lawyer and get an answer as to whether the eventual termination of visitation is in the best interest of the child and how the court will view that move. The justified reasons for terminating contacts are drastically different for the parent and for the judge, and the lawyer knows how the judge looks at them, which should be a priority for the parent.
A continuous and justified prohibition of contact should be followed by the initiation of appropriate proceedings (for domestic violence , deprivation of parental rights, narrowing of the visitation model), and in order to “legalize” the justified reasons and to make an appropriate court decision regarding the future relationship between parents and of a child. Otherwise, the judge will interpret the visitation ban in court proceedings as a show of power and an attempt to hurt the other parent, but also an attempt to alienate the child from the other parent.
We can conclude that, in fact, regularly allowing the child to see the other parent has a positive effect on the parent’s position in the procedure, which enables and encourages these visits, that is, prepares the child adequately for the visit. In this way, he shows the court that he/she has the child’s interest in the first place and that in the future (when he/she exercises parental rights independently) he/she will continue to have a positive influence on the relationship between the child and the other parent.
Mistake #2: Bad talk about the other parent in front of the child
This is the most common mistake parents make in these procedures. There is no positive reason to speak to a child about the other parent in a negative context. In such situations, there is no rule as to which parent does it more often, the father or the mother. Parents do this by: calling the other parent names, talking about his/her mistakes, talking negatively about his/her relationship with the child, etc.
Manipulating a child in this way is probably not your intention, but sometimes it happens unintentionally. The sense of frustration you may have because of a conflict with the other parent may lead to you subconsciously wanting your child to know how you feel and to see things from your perspective. Sometimes you may want to tell the child how bad the other parent is, or even want the child to feel sorry for what is happening to you, which is the other’s fault, but this should not be done.
Of course, a parent’s frustration can be completely justified, but influencing a child to look to the other parent from your perspective can be considered manipulation and can lead to serious consequences. Influence on the child’s attitudes and feelings towards the other parent can be considered an attempt to alienate the child from the other parent, which could have an impact on the court’s decision.
Therefore, there is no need for a child to hear bad things about his parent, whether it is the father or the mother.
This is bad for the mental state of the child, especially when it is indicated that the other parent has abandoned the child, that he/she does not take care of the child, that the child is not important to him/she, etc. So, if the father is really “lazy”, “womanizing”, “alcoholic” or the mother “sleeps until 12″ or has ” promiscuous ” there is no need for the child to listen to that! If such things are true, sooner or later the child will realize it for himself and form his own opinion about it, but there is no reason to impose it on the child.
In a formal sense, such behavior can be proven before the court, which will have an impact when the court decides regarding the exercise of parental rights, determining the model of visitation, etc.
It should be mentioned that the child’s grandparents often directly or indirectly speak badly about the current or former daughter-in-law or son-in-law to the grandson/granddaughter. Parents should stand in the way of this and forbid their parents from mentioning the child’s other parent in any negative context.So, in this way, the parent creates two negative consequences:
- The child will feel bad
- The judge will interpret such behavior as an attempt to alienate the child from the other parent.
Mistake #3: Making allegation that cannot be substantiated
These are mainly:
1. Allegations of domestic violence towards a spouse/ex-spouse or a child
2. Emphasizing that the other parent has psychological problems
3. Pointing out that the other parent consumes drugs/alcohol
4. Pointing out that the other parent has a criminal past
5. Pointing out that the other parent is promiscuousAll the above are serious accusations that not only call into question the decision to entrust the child, but in more extreme cases can result in one parent being deprived of parental rights, having protective measures, or being prosecuted. Such a consequence is necessary in situations where such facts are established and when it is determined that they have a negative effect or may have a negative effect on the child.
However, what happens if these accusations are false or simply cannot be proven? In both cases, it will indirectly reflect badly on the parent who made the accusation because it can be interpreted as an attempt to create a problem for the other parent or portray him in a bad light, with the aim of presenting himself as a superior and more adequate parent.
Such a dialog goes like this:
Lawyer: Does your wife have psychophysical problems that could compromise her parental role?
Client: Yes, my ex has mental problems.
Lawyer: What diagnosis, since when and was she prescribed therapy?
Client: I mean, there is nothing official, but I know that she has a diagnosis because sometimes she is too nervous, she shouts, she fights all the time, and it is unbearable. So there must be something, such behavior is not normal.Therefore, the claim that the other parent has mental problems must be proven (by medical reports) and must be significant, that it prevents that parent from adequately taking care of the child, that it prevents him/her from recognizing and responding to the child’s needs. The fact that someone may have some form of depression, affective disorder, anxiety, etc. does not mean that parent cannot take full care of the child.
Also, if the parent has not been criminally convicted or at least there are no criminal proceedings against him/her, pointing out that the parent is “problematic” or engaged in crime, will not influence the court’s decision, because the judge who judges family disputes cannot determine the facts for which another court has jurisdiction.
Mistake #4: The parent is not actively involved in the child's life
A parent must always be involved in his child’s life, especially if he/she wants to exercise parental rights independently! A parent cannot hope that the court will decide to entrust the child to the independent exercise of parental rights or that a broad model of visitation will be determined if that parent does not have an established relationship with the child and is not an active part of the child’s life.
Parents often do not know basic information about the child, e.g. what is the name of the child’s school, what is the name of the child’s chosen doctor, what is the child’s favorite toy, when was the last parent-teacher meeting, etc.). Also, quite often, parents who have not seen their child for several years come to our office to start the procedure for exercising parental rights. Such a dialogue is like this:
Client:I want the sole custody of the child.
Lawyer: Good. When was the last time you saw the child?
Client: Two years ago.
Lawyer: Why?
Client: The child’s mother wouldn’t let me.
Lawyer: Why didn’t you start two years ago?
Client: I was busy/I didn’t want to drag myself around the courts and deal with lawyers.There is no excuse!
Therefore, the parent must be actively involved in the child’s life from the birth of the child to have a real chance of success in the process of exercising parental rights. This is something that must be constantly worked on to maintain participation in the child’s life and not be questioned during court proceedings. If participation in the child’s life is not objectively possible, because e.g. the other parent forbids or makes it difficult, the solution is to hire a lawyer in time, so that he can direct you to initiate adequate procedures and become involved in the child’s life.
Mistake #5: The parent does not work on himself
The parent must do everything in his/her power to increase his/her chances of success in the proceedings. As we said – the fact that a parent has a mental problem or consumes alcohol or drugs will not automatically lead to him losing in this procedure or being deprived of parental rights, but if he does not deal with that problem he will almost certainly fail. Therefore, if he/she has a mental problem and does not go to medical check-ups, does not take regular therapy, or refuses to accept that he/she has a problem, it will surely mean in the eyes of the judge that the child is not important to him/her as soon as he/she will not deal with his/her problem for the sake of the child. If the parents have a communication problem, and one of them refuses to go to a counseling to improve mutual communication, it means that he does not want to work on himself/herself for the sake of the child. Communication is needed solely for the sake of the child, so that the parents can agree on taking over the child, prescribed therapy, school duties and the like. Therefore, that parent would show the court by his/her actions that he thinks he is not doing anything wrong, that there is no need for any work on himself and on his relationship with the other parent, and that the problem is on the other side.
Therefore, it is necessary to constantly work on yourself and on your characteristics and habits, which can be reflected on the child. In this way, the parent shows that the child’s interest comes first, not his/her petty interests and personal pleasures.
Why do parents make these mistakes?
Once we have clarified what are the most common mistakes that parents make, we must also explain why these mistakes occur in these procedures in the first place.
It is undeniable that these are very important things in the lives of parents and children, so the question is how is it possible for parents to allow themselves the luxury of making tactical mistakes that worsen their position and reduce their chances of success?
- The first reason – ignorance
They make mistakes out of ignorance. For most parents, a family dispute is a new and completely unknown thing. Parents do not know what to do in the procedure, nor how it works. They don’t know how they should behave; they don’t know what the court or the center for social work expects of them, nor what their role is. They do not know which behaviors are approved by these authorities and which are not. They have no strategy in the process, or the strategy is wrong. This ignorance is natural when a parent is represents himself /herself in the proceedings, because he/she is not educated for representation, but also the parent can be wrongly advised by his family, friends, workers of the center for social work, and even by his own lawyer, which can lead to that the parent is making the wrong moves.
- Another reason – pride
Contrary to the first reason, parents often know what they should do in the process and what behavior is expected of them, but it is simply too difficult for them, because they are hurt and proud, and have not overcome the relationship conflict. This combination results in them not always being able to stick to a plan and make rational moves. The goal of such parents is to hurt the other parent emotionally, due to which the child falls into the background, and this further leads to a small chance of success in the procedure.
Proud parents instead of “following the plan” to not talk bad about the other parent, but to focus on the child, e.g. they tell the judge, the expert, or the worker of the center for social work the worst things they can about the other parent at the first chance. They are convinced that, nevertheless, the judge must hear from them how this other person is actually a terrible person and why they should not be trusted with a child. Attacking the other parent is always the wrong move when the goal is for oneself, that is, when it has nothing to do with the child. If a bad trait or habit of the other parent needs to be pointed out, it must be considered how that trait or habit affects the child. For example, it does not sound the same: “the child’s father is unemployed, plays video games until 3 in the morning” and “the child is regularly late for school because the father plays video games at night, so he does not get up in time to make the child breakfast and get him ready for school”. Parents who remain in the past and whose pride does not allow them to keep some things quiet, do not differentiate between their relationship with their ex-partner and their relationship with their child, which is why they usually “lose” in these proceedings.
Conclusion:
Parental custody proceedings or any other proceedings in which a child’s rights and interests are decided are, at the end of the day, not a win-or-lose proceeding, nor is it a proceeding in which one parent should aim to defeat the other parent. The sole and exclusive goal of these procedures should be that the child, even after the divorce and the realization of his parents that they can no longer function in the community, still has both parents, who will deal with him, each in their own way and to the best of their ability.
Therefore, it could be said that the fight for custody is a marathon in which each participant must work seriously to overcome his own and the other parent’s flaws, for the sake of the well-being of his own child, to thoroughly work on himself and the relationship with his child, and to improve the relationship with former marital/common-law partner left in the past. In all of this, strategy and acting according to a plan made in advance is important. It is very important and recommended that you have a lawyer of your choice and “to your liking” on that road, so that from the beginning (or even better months before the start of the court proceedings) you will be directed in the right direction and so that someone will lead the proceedings for you, but also controlled your behavior during the procedure.
To increase the chances for a positive outcome of the procedure, the parent must focus on the child and the child’s interest, must work on himself and the relationship with the child. If there is no such relationship, he must work on establishing or re-establishing that relationship to have a chance in the proceedings. The focus should not and must not be on the other parent. The other parent, the shortcomings of that parent, the evidence that will be presented during the proceedings, should be taken care of exclusively by your lawyer and again, only in the context of the best interests of the child.
