Some Thoughts on Custody Disputes

The Misconception of No-Fault Divorce


Some Thoughts on Child Custody Disputes and Battles

Custody Battles Break My Heart

Nothing breaks this family lawyer’s heart more than a bitter custody battle.  I remember one episode of Law and Order which starts off with a father’s supervised visitation.  Father is portrayed as being very close to his daughter, who clearly loves him.  The monitor stands by, uninterested and purposeless.  Later, the mother accuses the father of rape (which is later proven untrue), and father loses all custody.  This leads to rage, and father pours burning oil on mother, killing her.  Thereafter, father gets shots by police.

There is also another episode portraying a custody battle, which culminates with the father killing the mother, then himself.

Custody Battles are Tragedies Waiting to Happen

Tragedies resulting from custody battles permeate the news.  On one end of the spectrum, alienation occurs and one parent is never allowed to maximize his/her relationship with the children.  On the other end, there is murder-suicide.  How many stories have we heard where father guns down the children, pushes the children off a building, then kills himself? The courts cannot protect.

Children are Always the Victims

I said in one blog post that in family law, there are no victims.  This is wrong.  There are victims; the victims are the children.

You Can Avoid A Child Custody Battle

So many of these “battles” can be avoided.  At the onset of a separation/divorce, it is common for one or both parents to retreat into war mode, and divide all things, including the children.  Stay-at-home mom of very young children will naturally and immediately seek “full custody” of the children.  This is natural and expected.  However,  as custody lawyers and specialists, we have a duty to inform, educate and protect the rights of not only your clients, but the children involved.  It may be tempting to file a Temporary Restraining Order, knowing Family Code 3044.  However, it might be better to consider other options and advise your clients of such.

Fear Breeds War

Custody battles are born of fear.  Both sides have legitimate fears.  It happens even in intact households!  We raise our children the way we were raised.  It is cultural.  It is also derived by our gender.  Men and women have differences.  Men obviously do not have wombs or breasts.  In general, women do not have as much physical strength.  I hear similar complaints from both sides – as I reveal in this blog post.

We are living in a different era.  In the 1950’s, before the majority of women worked, the children were with mom more.  Thus, in divorces, many times custody was routinely awarded to moms.  These days, with the advent of technology, moms work as much as dads, and dads are home as much as moms.  Child-raising has become truly a joint venture, in many homes.  To deprive a child of a parent during a divorce is, as such, punishment to them.

Joint Custody is Encouraged and Preferred

Family Code 3010 states, “Both parents are equally entitled to custody of the child”.

Family Code 3020 expresses California’s policy that it is in the “best interests” of the child to have “frequent and continuing contact” with both parents after the parents have separated or dissolved.

When I handle a custody case, my goal is to help to create a parenting plan that does not punish the children in a divorce.  I don’t think about parenting plans as “battles” or “wars”.   Decisions regarding children shouldn’t be made out of anger, spite, or revenge.  Very few people can afford to pay hundreds of thousands of dollars to litigate child custody battles.  Also, what people don’t understand is that battles don’t end.  The children are minors until 18.  And even after, there are graduations, weddings, grandchildren.  There is a LIFE that you created when you had a child with your ex.  Litigating a custody battle is nothing like litigating any other lawsuit.  You can sue the guy that hit your car and never see him again.  But the father or the mother of your child – will always be in your child’s life.  It’s worth educating yourself, and mediating a parenting plan that will work.

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