Divorce Resource Blog | Brad Micklin
The amicable settlement of a child custody dispute can reduce the stress, conflict and animosity between parents involved in a marital dissolution or paternity action.
While both parents and minor children tend to benefit from a custody settlement that promotes effective communication and cooperative co-parenting, there are some custody cases that cannot be resolved amicably.
There are parents who refuse to be reasonable or who cannot navigate around the hurt, jealousy, anger and other powerful emotions that often accompany the breakdown of a marriage or relationship between unwed parents.
Certain types of issues also are more likely to result in a high conflict custody dispute, such as:
- Substance abuse by a parent
- Domestic violence
- Child abuse or neglect
- Parental relocation (move away cases)
- Other parental fitness issues
While high conflict custody cases might not be a desirable alternative, they must be handled with care to avoid unnecessary harm to the children, to prevent stress and animosity and to craft workable arrangements that result in repeated post-judgment proceedings to enforce or modify custody orders.
Avoid Disparaging Comments: Many high conflict custody cases are the product of acrimonious relationships or nasty breakups. These intense negative emotions can make it difficult for parents to be positive about the other parent in the presence of their children.
However, disparaging comments about the other parent are detrimental to the children and will be viewed negatively by a judge in a contested custody case. An important factor that judges must consider in a contested custody dispute is the willingness of each parent to promote frequent and continuing contact with the other parent.
If evidence is presented to establish that a parent is talking negatively about the other parent or otherwise engaging in alienating behavior, this can provide support for designating the other parent the custodial parent.
Exercise Caution in Moving Out of the Home: There are good reasons for a parent to exercise caution about moving out of the family home during a contested custody dispute.
Legitimate justifications for vacating the family home exist, such as the threat of domestic violence, unreasonable levels of hostility or the fear of false allegations of child abuse or domestic violence.
However, the decision to move can undermine a parent’s position in a contested custody dispute.
If a parent moves out without a stipulation for shared custody or a defined visitation schedule, the parent who remains in the family home with the children is in a position to deny access to the children. The parent who moves out without such an agreement can be subject to the unfettered discretion of the parent who remains in the family home in terms of parental access.
The lack of contact during this period also might be used to create an impression that the parent who moved out showed a lack of interest in spending time with the children.
Pay Attention to the Status Quo: While judges consider a wide range of factors when considering timeshare arrangements in contested custody cases, the status quo is very important.
When one parent spends a disproportionate amount of time with the children, the judge might assume that this parent is the “caretaker” for the children. This informal status quo can be persuasive especially when the children are performing well in school and otherwise appear well-adjusted.
Judges recognize that the deterioration of a marriage or relationship between unmarried parents can mean enormous changes for children. In this atmosphere of drastic changes, judges see the value in maintaining as much stability as possible.
If a status quo arrangement exists that is functional and effective, the judge might be reticent to disrupt this arrangement.