Forward Thinking Family Law Since 1994

Accept the Child Custody Arrangement or Parenting Time or Risk Rocking the Boat

Many parents, often the dad, want advice on whether to keep the peace and accept the parenting schedule or the child custody arrangement that the other parent, often the mom, wants or risk that parent’s anger.  There may have been some “bad behavior” on the part of the one parent that led to the divorce or separation that is fueling the other parent’s wish to be principally in change of the child.  What to do?

Both parents need to understand that the custody or parenting time agreement that is in the judgment (divorce or paternity) will establish a standard for the court.  Changing the arrangement for either or both will require a significant change in circumstances and a high level of proof.  In Michigan, the court must determine whether the significant change in circumstances was foreseeable or a natural outcome of foreseeable circumstances (such as the child becoming older).  If the change was foreseeable, the court may not consider the change significant.

Remember, most courts subscribe to the notion that “if it ain’t broke; don’t fix it.”  The standard for change is high.  The next analysis, in Michigan, is whether there is an established custodial environment.  That focuses on the relationship between the child and each parent.  An Established Custodial Environment exists when over time that child looks to one parent for comfort, guidance, support and discipline.  Frequently, the ECE is with both parents.  Sometimes it is with one parent; the one principally in charge. That means if the proposed change put forward by one parent will result in that parent having joint legal custody, when previously there was sole custody, that parent must show by clear and convincing evidence that the change is in the child’s best interests.

Each state has some variation on the best interests factors.  Check the ones in your state.  In Michigan, the moving party has to present proof on each factor and hope the judge will agree that he/she has presented sufficient evidence to support them granting their motion.

Sound difficult and expensive?  It is.  It also usually serves to drive a wedge between mom and dad and make a tenuous relationship more difficult.  The stress on the child, whom the judge may want to interview, is enormous.

What to do?  First, when you are initially negotiating the divorce or paternity settlement, consider trying to reach agreement on joint legal custody.  This means that both parents set aside their personal animosity and make decisions for their child.  It literally means dividing your feelings about the other parent as a spouse or former lover into one box and your feelings about that person as a parent into another.  You work out of the “parent box,” not the former spouse/lover box.

If one of the parents suffers from an illness; physical or mental; determine whether that really impacts that person’s ability to parent.  Many people suffer from some disability, but they can still parent effectively.  For example, a parent may be depressed.  However, if with an adjustment in medications (that need periodic review) that parent can be attentive to the children and be a good parent.  The diagnosis does not disqualify him or her from being an active parent.  Granted the illness may not have been diagnosed until that parent engaged in embarrassing behavior.  However, once it was treated, that parent can again become a participant in the hard work of parenting the child.

The ill parent may feel so guilty over the embarrassing behavior that he/she will not assert their wish to parent for fear the other parent will use the incident against them.  The court is likely to consider whether this was an isolated event or whether it was situational – brought on in part by the stress of the marriage/relationship breaking down – or whether the behavior was pervasive.  If it is unusual behavior for this parent, the incident is likely to be excused, particularly if the parent is receiving counseling and/or accepting medication to address the problem.  If the “ill” parent has been an active parent in the past and wishes to remain one in the future, that parent should admit the problem, address the cause and commit to working on the issue.  This means asking for the custody and parenting time arrangement that they prefer and believe is in the best interests of their child.

Yes, the other parent may be worried and angry.  If the parties mediate or engage in collaborative practice, many of the anxieties of the other parent can be addressed by mental health professionals.  It may be difficult for a time.  However, both parents can learn more about the difficulty and work with it.

Both parents need to take the settlement period of carefully consider what role each would like to take in parenting their child in the future.  They should attempt to work out a plan that permits them both to be active parents now and in the future.