THE BLOG
11/10/2015 11:39 am ET | Updated Nov 10, 2016

Parents Should Think Twice Before Engaging in a Custody Battle Over Their Children

When parents engage in custody battles over their children, they do so under the guise that it is in their children's best interest, but is that generally true? Please don't misunderstand, I am not suggesting that parents don't sincerely believe that what they want is in the best interest of their children. I am, however, suggesting that not all beliefs are fact based, regardless of how sincerely held such beliefs may be. According to Bill Eddy, LCSW, JD, "Much of today's legal disputes are about what I call Emotional Facts - emotionally-generated false information accepted as true and appearing to require emergency legal action."

Allow me to share a comment made by Frank P. Cervone, Esq. on October 15, 2015, while presenting at the American Bar Association (ABA) Section of Family Law 2015 Fall CLE Conference during the program titled "The Preferences and Voices of Children - How Do You Protect the Child?" He said, "In the adversarial construct, an attorney's job is to advance their client's position - not advance what is in the best interest of the child, which is the role of the judge." Mind you, the exact same thing can be said for those parents who opt to represent themselves.

Not a day goes by in which at least one potential client contacts me because they are looking to "get full custody" of their child(ren).

While both parents battle each other to try and prove that what they want is in the best interest of the child, they spend their child's college tuition, exacerbate the conflict, increase the distrust between them, destroy their ability to effectively co-parent, and harm the child.

As Mr. Cervone so astutely pointed out, when parents act in such a manner, the only person involved in the case responsible for assessing what's in the child's best interest is the judge. Furthermore, the judge has such limited knowledge of the family that their subjective determination may or may not actually be in the best interest of the child.

Not only do judges handle a great many cases and therefore not have the ability to develop a clear understanding of any given family, but their decisions are only based upon the "legally relevant and admissible evidence" submitted to the court. Among other things, judges and juries are "triers of fact." In other words, it is the job of a judge or jury to determine the facts based upon conflicting evidence and then to apply to law to the facts, as found by them. Of course, such factual findings are based upon the "legally relevant and admissible evidence" before them, not all the facts.

The job of an attorney is not to ferret out the truth. Rather, it is an attorney's job to do everything legally possible to have facts that are harmful to their client excluded from evidence through legal technicalities, if at all possible, or to otherwise spin the evidence. Attorneys are gladiators who are brought on to effectuate a "win" for their client. Winning is not about the truth, even though people tend to believe otherwise. The law is not about right and wrong - It is about winning and losing.

As I have said before, it is a grave mistake to confuse "legal justice" with "justice," which is synonymous with "fairness" and "litigation should come with a warning."

In any event, Connecticut attorney and filmmaker Larry Sarezky has produced an award winning film about custody battles titled "Talk to Strangers." This amazing film, which I first saw on March 13, 2014, shows the impact on children of the custody evaluation process, from the children's perspective.

I would like to point out some of the highlights of the film:

First, children involved in family law litigation tend to believe that their parents care more about fighting with each other than caring for them.

Second, the film gives insight into "why" any given child wants a particular parenting plan or to live with a particular parent. Is it because one parent bribed them, as occurred to me and my siblings? Is it because of "facts" the children learned from one or both parents? I think everyone should know why I placed "facts" in quotes. Is it because they feel that one parent needs them more than another? If so, is it because they somehow believe that they must now parent their own parents? It is always fascinating to learn the "why."

Third, is what is "fair" to the mother, father and children the same? If not, who wins when it comes to "fairness" and whose sense of it is ignored? How does that play out?

Fourth, parents believe that their children are "amazingly resilient." Think again! Doesn't that depend upon what it is that is thrust upon them?

Fifth, parents believe that they insulate their children from the "process." Really? Are parents completely clueless in all aspects of their lives, or only when it comes to this issue?

Sixth, parents don't believe that their children are embarrassed by their behavior. Really? Think again!

This film hit so close to home for me that it actually caused me to tear up several times while watching it. When will parents learn? As Mr. Sarezky said to me, "The impact of high conflict divorce upon children is a pervasive problem."

The trailer for the film and my comment that "This film hit so close to home for me, that it actually caused me to tear up several times" can be found online on a site that provides "Resources for Divorce & Child Custody."

For those interested, the film is accompanied by a guide for parents on avoiding child litigation. The film and guide were produced by family lawyers. Furthermore, on November 3, 2015, the American Academy of Matrimonial Lawyers (AAML) announced that it would be distributing the film. Believe it or not, we are not all bad!

I am absolutely thrilled to see Larry Sarezky's award-winning film about child custody being distributed by the American Academy of Matrimonial Attorneys. Sadly, however, parents will continue ignoring such information because they each believe that what they want is in the "best interest of their children."

Generally speaking, shared parenting has been found to be in the best interest of children. Since people seem to have trouble with terminology, I would like to be extremely clear that shared parenting is not the same as Equal Parenting. There is absolutely no evidence to suggest that Equal Parenting is is the best interest of the children. Shared parenting is not less than a 33% timeshare. This is not to say that shared parenting cannot be an equal timeshare for both parents. Let's just not confuse the fact that 33% or more by no means necessarily equals 50%.

As Philip Stahl, Ph.D. said on May 8, 2015 at the American Bar Association (ABA) Section of Family Law 2015 Spring CLE Conference during the program titled, "Revisiting Shared Parental Access-Is a Presumption of Equal Parenting Time the Appropriate Template for Custody Determination?", shared ‪parenting‬ is great, except when it's not. The following are examples of such instances: (1) domestic violence problems, especially coercive control; (2) very high conflict driven by significant personality disturbances, especially when primarily by one parent; (3) logistical nightmares, i.e. long distance; (4) poor parenting by one parent; (5) significant mental health problems; (6) significant substance abuse problems; and (7) significant restrictive gatekeeping practices by one parent (as opposed to protective gatekeeping for one or more of the above reasons).

Circling back around to a parent's request for sole custody, people tend to know what the word "sole" means. People seeking "sole custody" are attempting to gain 100% custody of the child and sole decision making authority. In essence, they want to eliminate the other parent from the child's life.

"A parent with 'sole custody' of a child has exclusive physical and legal custody rights concerning the child. These custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child -- for example, due to drug addiction or evidence of child abuse. In sole custody situations, the child's other parent (also known as the 'non-custodial' parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse)."

As set forth above, such a result is almost certainly not going to occur in court because it does not tend to be in the best interest of the child. Most of the time when a parent requests sole custody of their child(ren), it is merely because they are too selfish to be bigger than their problems for the sake of their child(ren).

For what it's worth and even though I believe it will continue to fall upon deaf ears, parents, I would think twice before engaging in a custody battle over your children!