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WHO PAYS THE PRICE WHEN EX-SPOUSES CAN’T — OR WON’T — CO-PARENT THEIR CHILDREN?

We see it all the time — divorced or divorcing parents who see every compromise on issues of visitation or custody as a loss and who return to the courts time and again to settle everyday disputes.

In a case to be released next week, Lori Hibbard vs. Tony Hibbard,  the Connecticut Appellate Court upheld the decision of a trial court to pick a side in such a case, and to do so in a big way.

The couple divorced in 2007 returning in less than a year with disputes about money and visitation.  In the next 4 years, the parties filed a total of 30 post-judgment motions between them.  According to the appeals court, the disputes increasingly involved access to their daughter –only two years old at the time of the divorce.

Initially, it appears from the decision that the plaintiff mother had a fair amount of success managing to limit the defendant father’s access more and more.  At various points, this even involved requiring that visits be supervised and that overnight visits be suspended.

By the time they returned to court to litigate their last set of four motions — two filed by each party– visitation by the father had been whittled to one weekday afternoon and two 7-hour weekend visits every other week together with some specified holidays and birthdays.

The mother’s two motions sought further restrictions on the father’s access, the father, for his part, asked that the mother be held in contempt of court for failing to allow him several scheduled visits and –more importantly –asked that custody of their child be granted to him.

The mother defended against the contempt motion claiming that although she had not allowed the visits it was because her daughter had reported being touched inappropriately by a friend of the father during an earlier visit.

The trial court did not find the mother’s  claim to be credible noting in a detailed 20-page decision that, in the past, the mother had made various other unrelated claims that had not been substantiated by investigators or by the child’s therapist.  She had argued that the child was afraid of her father, but again was not backed up the child’s therapist.  The judge further noted that the mother had terminated therapy for the child when the therapist asked to meet with the father and had terminated longstanding daycare arrangements after a worker shared information about the child with the father’s current wife.

Concluding that the mother’s strategy was to eliminate the father from their child’s life, the judge awarded sole custody to the father, granting the mother visitation rights.  Considering that she had originally been awarded custody and had historically succeeded, at least  to some extent, in controlling the father’s access, it is a fair guess that this was an unexpectd result.

The mother appealed  and lost.

In this blog, we have commented before about  the toll  that contentious and protracted custody and visitation litigation takes on families, and especially on children.  The adverse effects of serious and prolonged  parental wrangling on children — not just while it is happening but well into adulthood — has been amply documented.

For most families, the financial toll taken by the cost of serial court appearances makes a difference in the quality of life of the entire family and colors the attitudes of the adults towards each other.  This, in turn, makes it even less likely that the children who are at least the official subject of the fighting, can enjoy a carefree, guilt-free and happy childhood.

We do not claim to be in position to judge  or evaluate the merits of Ms. Hibbard’s attacks on Mr. Hibbard’s parenting.  What we can say, however, from many years of experience, is that once custody and visitation issues have been  addressed and decided  — whether  by  agreement  or  by trial — future efforts to change the deal become subject to increasing skepticism. As lawyers, we must always respect the obligation of parent’s to do what they believe to be in the best interest of their children. At the same time, however, we must always counsel our clients — as the experienced lawyers in this case no doubt did — to consider at every step, whether they are motivated by genuine concern for their children or by relationship issues between the adults.  At a minimum, they should be made aware that this will be a question that the court will consider in every instance.

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GETTING YOUR PRIORITIES STRAIGHT IN CHILD CUSTODY OR ACCESS DISPUTES

Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship.  However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.

Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing.  Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.

Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.

Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused.  In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.

Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.

Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming  study identifying a long list of  lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.

The lesson here is  to make the strongest possible effort to achieve a healthy parenting plan for your children,  but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.