If you are involved in a divorce and have minor children, what you do and say while the divorce is pending can have far reaching effects on the ultimate outcome of the case. If you choose me as your attorney, I will do all I can to represent you aggressively and with the attention to detail your case deserves. However, there are many things you can do that will also help you achieve a favorable outcome in your custody case. For this reason, I have developed the following Essential Principles for All Custody Cases:
The Friend of the Court and the judge in your case will likely expend great effort to come up with a custody and parenting time arrangement that is in your child’s best interest. If you do not abide by the court’s orders, it will increase conflict in your case, cause emotional upset to the child and the other parent, and will ultimately land you back in court. If you simply cannot live with an order of the court, talk to your attorney about the procedure for filing a motion to change the order. Do not take it upon yourself to decide which orders are worthy of your obedience. Disobeying a court’s order is a surefire way of getting on the judge’s bad side and setting yourself up for failure in a custody case.
Michigan law requires that the following statement be included in all judgments of divorce with minor children:
The minor children shall have the inherent right to the natural affection and love of both parents, and neither parent shall do anything to estrange, discredit, diminish or cause disrespect for the natural affections of the children for the other parent.
The “inherent rights clause” is an important factor in custody determinations. This protects the child’s right to a close relationship with both parents. This is an area where parents commonly slip up during the pendency of a divorce. Even in the most amicable divorces, the parents inevitably harbor some degree of resentment or anger toward one another, which, if they are not extremely careful, may spill over in the presence of the children. A simple roll of the eyes when the other parent’s name is mentioned, probing questions to the child after parenting time regarding the other parent’s behaviors or careless conversations about the other parent with third parties overheard by the children can cause irreparable damage and negatively impact your custody case.
You would be amazed how difficult this one is for some people. I have actually had a client call me to ask “If she is five minutes late for parenting time, can I call the police?” I hope you get the clue from the caption that the answer is a resounding no. In fact, do not involve the police in parenting time concerns unless someone’s health or safety is in immediate jeopardy. The mere presence of a police cruiser at a parenting time exchange causes great emotional trauma for children, especially the very young. I am continually amazed at how many people find it necessary to summon law enforcement, creating a dramatic crime scene whenever parenting time does not quite go as planned. A good rule of thumb is that if you expect any leniency from your ex, you must show leniency. While it seems elementary, in my experience many people do not understand this basic principle. If you take it to heart, your children will benefit, and you will quickly win the judge’s favor.
While social media can be a useful tool in communicating and maintaining relationships, I encourage my clients to greatly decrease or even eliminate their activities on sites such as Facebook, Twitter, Instagram and other social media. If you are under the microscope of your soon-to-be ex-spouse and her attorney, as well as a custody investigator, you do not need acquaintances posting pictures of you at your friend’s bachelor party, at the beach, or with your new flame. In most cases, you have no control over what others will post about you. And don’t use Facebook or other social media to send important messages about parenting time to your children or your soon-to-be ex-spouse. This is simply asking for trouble. I encourage my clients to communicate using telephone calls or email, rather than text messages. In my opinion, texting is simply too quick and informal, is done on the fly, and is often misconstrued or sent off in haste or emotion. If your communication is by email your messages are likely more well thought out and logical than those dictated on the go from behind the wheel (don’t even think of trying this) or in the line at the supermarket.
In a custody case, expect detailed inquiries regarding, for example, how often you and the other parent attend parent-teacher conferences, church, sporting events, or medical appointments. You will be asked how often you work through the dinner hour or out of town. You may remember several occasions over the past year when your spouse stayed out into the wee hours of the night drinking and was unable to pull himself out of bed the next day to get the children off to school. These tidbits are all part of a custody case and because of their importance should be noted in a journal. Otherwise, if you cannot remember the dates, times, and places, you can be greatly discredited on cross-examination. You can testify with greater credibility if you have some type of record to back it up.
I tell my clients that during a custody case a person who drinks one beer per month may suddenly be called an alcoholic by the other party. The parent who owns a gun collection may be called a weapon fanatic; the occasional buyer of lottery tickets may be portrayed as a gambling addict. It is difficult to refute these allegations if they come unexpectedly. I remind people involved in a custody dispute that their behavior must be above reproach, and that perceptions can be misleading.
While the courts recognize that a person has a right to move on after a divorce, the fact of the matter is you are still married until the divorce is final. The rule of law in custody cases is stability. One of the custody factors is the permanence and stability of the family unit. If you are perceived as ready to bring dramatic change to your family unit before your divorce is final, this can harm your custody case. Some judges may go so far as to enter a temporary order prohibiting the parties from having third-party romantic interests present during parenting time. The six-month cooling off period in divorces with children allows time for the children to adjust to the new family structure. Most judges do not approve of a parent introducing a new significant other into the mix when the children have not been given a chance to adjust. Judges tend to see this as unnecessarily ramping up conflict and emotion, as well as creating undue confusion for the children.
It can greatly damage a custody case when an attorney stands up and vigorously argues that his client needs more time with the children, only to be faced with evidence that his client did not exercise what parenting time he already had, or that the client frequently left the children in the care of another to engage in other pursuits. I recall one client who vigorously argued for increased parenting time, only to have opposing counsel produce a record showing that he failed to show up 40% of the time, and when he did show up, he regularly allowed his new girlfriend to watch the children for hours on end while he went off fishing or hunting with his buddies. This guy came off as truly insincere, and his wife’s argument that he was trying to get more parenting time only as a means of decreasing his child support quickly caught the judge’s attention.
The court understands that no two people parent exactly alike. Do your best to display an understanding of this as you move through a custody case. Judges perceive parents who are overly critical or picky of the other parent’s interactions with the child as tending to alienate the child from the other parent, and as unwilling to facilitate a close relationship. You may be a gourmet cook, and your spouse may feed the kids corndogs and chicken nuggets every night. He may be a marathon runner and believe that the children need to exercise daily, while you may be a couch potato satisfied to do nothing more than watch television and read when you have the children. You may be deeply religious, spending time studying the Scriptures daily, and he may have no interest in spiritual things. There is a wide range of what is considered acceptable parenting by the judges, and they have seen most everything on the spectrum. You will make more headway in your custody case if you focus on the big picture. Custody cases are generally not won or lost on the kinds of foods parents serve, what they watch on TV, or how they spend their time in general. Unless a parent’s conduct can be deemed abusive or neglectful, the courts recognize great variance and discretion in parenting styles, and so should you.
Your relationship with your soon–to-be ex-spouse is changing dramatically. You are no longer lovers and most likely not even friends. However, like it or not, you are business partners in the most important sense. You are jointly responsible for the well-being of the children you brought into the world together. You must continue to work together with your child’s best interest at heart, regardless of how you feel about one another. If you hurt one another, you are hurting your children. It may help to look at this as a business partnership. This will get easier as time goes by. If you are struggling with this, I strongly recommend that you seek professional advice, preferably co-parenting counseling. In high conflict cases, judges will sometimes order this. Ideally, you and your spouse would agree to attend voluntarily, setting an excellent example for the children.
The above guidelines are general principles that for the most part should be adhered to in your Michigan child custody case. As a West Michigan child custody attorney with over 25 years of courtroom experience, I can offer a lot of wisdom and would be happy to discuss your specific situation with you and help you prepare for what could be one of the greatest challenges you may ever face. Call my Holland, Michigan office today if you would like to discuss your child custody case.
© 2017 Thomas C. Kates, Attorney and Mediator