can be one of the emotionally hardest things that a person can go through. Fighting over child custody or access to a child sometimes has the ability to change what would normally be genuinely caring parents into to strangers who will do anything to win the battle. In essence, I like to call it ‘seeing good people at their worst’. The problem is that children are not pieces of furniture to be won. Moreover approaching a child custody matter without your focus being solely on the best interests of the child can have disastrous consequences for the outcome of your matter.
Below is a list of the things that people do wrong in child custody matters.
1. Bad Mouthing the Other Parent to the Child
This is one trait that I see regularly, especially when people are deeply entrenched in legal custody proceedings for a long period of time. It can be as simple as a slip of the tongue to a friend in the presence of the child about how the other parent is a bad parent right through to comments made directly to the children telling how the other parent doesn’t love the child and ‘abandoned’ the child or similar statements.
The problem with bad mouthing is that the only positive it brings, is to at best help you to let off some steam. But the negatives associated with bad mouthing or denigrating the other parent it has many negative consequences.
The first consequence and what should be the most serious consequences of bad mouthing a parent is the impact it has on the child. Your child does not want to hear bad things about the other parent. Children like to have the parents resolve their issues peacefully (or at least without the child knowing of the dispute). Insulting the other parent to the child can dramatically undermine the child’s relationship with the other parent….however what many people tend to not realise is that, as children get older, they tend to look at your behaviour growing up and they may well judge you for undermining their relationship with the other parent.
I tend to inform parents who want the children to know that the other parent abandoned them for another family etc that children are smart and perceptive. In time the children will judge the behaviour of the parents for themselves, and it is this assessment will determine the relationship that the child has with both parents on a long term basis into adulthood.
The second consequence is the court will look poorly at any person who bad mouths the child to the other parent (because Judges are aware of the damage it does to children). I guarantee that even the slightest slip up to a child will end up getting back to the other parent, even if you tell them not to say anything. Children will inevitably tell the other parent, a sibling, family member or even a teacher. Once the other parent is aware of the behaviour they will be more likely to include it in an Affidavit in support of their argument as to why they should have the custody of the children. Therefore before the Court has even laid eyes on you, they will have in the back of their mind that you are fixated on hating the other person more than you care for the well-being of your child. This can be a difficult opinion to change and given that it already puts you in a bad light with the Judge then you have to seriously question how bad mouthing the other parent to a child will in any way benefit you.
2. Doing or Saying things to make the Child feel sorry for you
This issue has similar consequences to those discussed in number 1 above. This issue is referred to by the family court as attempting to align a child’s views to those of a parent or parental alienation. When I have seen this behaviour arise it comes about for one of 2 reasons: 1. A parent doesn’t even realise that they are doing it or the consequences for the child, or 2. The parent wants the child to specifically know how bad the other parent as a justification for the parent’s behaviour.
The first of these instances can arise in many circumstances. Some examples are: letting a child see you crying excessively after an interaction with the other parent, telling the child that the other parent ‘abandoned’ you, telling the child that the other parent is taking you to court, telling the child you have no money because the other parent won’t give you any. The list is endless and I have seen it occur by even the most well-meaning of people.
The second instance is far more malicious and is designed to deliberately hurt the other parent. The problem with this type of behaviour is that it will damage the child far more than any hurt that it will inflict upon the other party. Examples of this behaviour is telling the child things like "Your father pays me barely anything in child support so go ask him for money", or "I may as well kill myself because your daddy doesn’t love me", or "Your mummy doesn’t want you to love me".
The damage this does to the child is great and in a lot of case cannot be undone. As outlined in number 1 above the same results occur and again the court will consider that you are trying to alienate the child from the other parent.
While going through separation is painful for both parents and co-parenting can be awkward, unfortunately parents don’t have the luxury of climbing into bed and not getting out. Children still require you to be there for them and to retain a sense of normality no matter how small that is. While it is easy to consider leaning on your teenage child’s shoulder for emotional comfort, this should never occur. Remember your children are looking to you for guidance, not the other way around.
3. Not trying to speak to the other parent
So you have separated from the other parent, and frankly he or she is the last person you ever want to speak to again. Maybe they cheated on you, maybe they spent the last of your life savings without your knowledge, maybe they work too much. The reasons people separate are as wide and varied as the stars in universe. Any it is possible that you have a million reasons to justify why you won’t talk to him or her. Fair enough. But you chose to have children together and that means that regardless of the million reasons to not speak, you have but one reason that means you have to speak to the other parent: Your children. This reason trumps all other reasons to not speak and so it should.
A. Your children need you to communicate
When separated parents are able to communicate freely and easily, what you see is children who thrive, with both parents participate in the child’s daily life. The children still remain children with the parents remaining empowered to discipline and raise the children. The fact is that stuff comes up with children on a daily basis, for example the child is sick, parent-teacher meetings occur, the child wants to go to a friends place on the weekend, the child has been disciplined etc. The list is endless.
When parents are not able to communicate, the first thing that happens is that the 2 separated households (mum’s v dad’s) function separately and very differently from each other. When children move into their rebellious stage the children learn very quickly to play one parent off against the other. The child then becomes in control and starts to emotionally blackmail each parent. For example ‘If you don’t get me an iPad I am going to live with dad’ . While it may sound odd, children want to be disciplined, because it means that they know you care.
B. The Court will react negatively if you don’t speak
So if your children are not motive enough to learn to speak to the other parent, then how about this… When the Court determines whether joint custody should be ordered and if not then who should have custody of the child, one of the most raised factors is whether the parents are able to communicate and speak to each other and if they are not then who is the parent who is not communicating.
Now I’m not saying you need to be best friends. The courts are realistic and appreciate that separation can impact on the ability of 2 people to have a general conversation about the daily news events, but what is required is that 2 parents are able to relay important information about the children in a civil and non-abusive manner. And before you say…’but I just can’t talk to them’…well the good news is that you don’t have to if you really don’t wish to. Given today’s technology, you have at your disposal email, Skype, SnapChat, Instagram, Twitter and text messages. (I am sure my children will inform me of many more I have missed but you get the point). Many people use emails as a source of communication so that it can be drafted and put aside and sent at a later date (to make sure nothing abusive is said in anger). In emergencies people use text messages. I am not referring to abusive messages but genuine communications about the child.
If you still Refuse to speak even after the above then the Court will consider that you are not willing to promote the relationship between the child and other parent. What could result from this is simply….you could lose custody of your child, especially if the other parent can demonstrate that they have made genuine efforts to speak with you but you have refused.
In summary, the risk to a parent by not speaking to the other parent will far outweigh the discomfort experienced by having to communicate with the other parent.
4. Prevent the Other Parent from having Access to the Child
To not allow the other parent access to a child (whether Court Orders exist or not) is one of the most common and yet worst things any person could do in a Custody dispute. Now in saying this, there will be times when Preventing access to a child is not only in the child’s best interest but is in fact essential to protect children from being physically or emotionally harmed.
But if there is no risk of harm to the child then the Family Court will expect to see a parent who can demonstrate that they are willing to co-parent. If you bring an Application for full custody of your children and cannot demonstrate either a willingness to co-parent or alternatively a very very very good reason for not allowing the other parent access to the children then you may find yourself losing custody of the children. I do not say this flippantly. This is one area that I have seen Judges hand children over to the other parent solely because one parent will not allow the other access to the children, and this is becoming an ever increasing ruling.
So when Should a Parent Withhold the Children from Access?
Only in the most serious of circumstances should a parent prevent another parent from having access to a child. Some examples of situations when the denial of access should be considered are:
- The other parent is violent towards the child (and by this I do not mean smacking)
- The other parent is taking drugs in the presence of the child
- The other parent is the victim of domestic violence and the child may be exposed to this behaviour
- There is a risk of the child being exposed or subjected to sexual abuse
- The other parent may potentially expose the child to harm
- The other parent has done or said something to make you believe that they will not return the child at the end of their access visit.
The basic position that needs to maintained is that unless there is a reasonable chance that a child is at risk of harm or may not be returned then access needs to continue. Remember the concerns must be reasonable and not overly sceptical or cautious parenting.
So you have concerns for your child but want to maintain access?
If you have concerns regarding the other parent having access to the children but still wish to allow access to continue, you may wish to consider the following options:
- You could be present during the access visit
- Someone you trust could be present for the duration of the access visit to ensure the safety of the children
- You could limit the access visit to shorter periods of time or remove overnight visits (if the issues arise due to overnight times)
- Propose contact to occur through a contact centre which is limited to 2 hours and is supervised by staff (and terminated if need be) with notes taken for each contact visit.
- Require an undertaking to be signed by the other parent to either return the child, or not undertake those activities that raise concerns with you (eg. Physical discipline, not to verbally abuse the children Etc)
- Enter into Consent Orders to ensure you have the ability to enforce the orders.
If the issue of concern is so serious for you to prevent access then you need to strongly consider whether the other parent and children should have at the very least some form of telephone contact. By allowing telephone contact you will be attempting to maintain the relationship between the child and other parent.
Again remember that preventing all access without serious justification will only backfire on you and as such all possible alternate measures should be considered before denying access.
5. Lying to the Court about Drug Use or Alcohol consumption
Drugs are prevalent in society and seems to be increasing daily, as such it should be no surprise that drug use or alcoholism by a parent is usually one of the first allegations made against a parent in custody disputes.
Obviously as a Family lawyer my advice would first and foremost be….."Don’t do drugs" and "Don’t drink to excess". However I am a realist so if abstinence from drugs or alcohol is not a likely option then don’t lie about it. Most people who take drugs take on a "deny deny deny" mentality. It is this constant denial that will ruin your custody or access case.
Remember the Family Court is not concerned about your drug use so much as how your drug use affects the children or your ability to parent.
If you have taken drugs in the past, own up to it at your first opportunity which ideally should be in your very first Affidavit. It is important to explain when you last took drugs, what type of drugs you took, quantities, and most importantly why and how you stopped taking drugs. It is also prudent to provide a drug test showing that no drugs are in your system. By doing this you can pre-emptively defeat any allegation thrown at you from the other parent.
If the last time you took drugs was fairly recently, then advise the court of this but don’t just stop there. If you take drugs on a social basis then you will need to explain to the court of when, where, how much, you also need to explain who is caring for the children while you are under the influence of drugs (eg. They were in the other parents care). In saying this, there are some drugs that will be considered to alter a person’s personality to such a degree that any prolonged use of the drug will affect a person’s ability to parent.
If you are taking drugs regularly (if not daily) then you need to seriously consider whether you have an issue with drugs and deal with it accordingly. You may need to book yourself into drug and alcohol counselling or even rehabilitation. The fear of the Family Court finding out that you take drugs should not prevent you from going into rehabilitation. More than likely the finalisation of your custody matter will be adjourned or delayed until after you have completed rehabilitation as the court wants to see that you are in a position to have custody or access to your children.
The Family Court is not interested in your past, they are interested in your present and future ability to parent your children effectively. So if you had or have a drug issue then deal with it upfront. Show the court that your drugs do not impact on your ability to parent and if you can cease the habit if for nothing other than for your children.
6. Splitting up the children
Blended families is increasingly becoming the norm in today’s world. With blended families comes half-siblings and more complicated arrangements. When people separate they have a tendency to divide children up into different categories. For example you have the direct biological children of both parents, then the half-biological children (children of only 1 parent) and then there is the step-children (who are the new partner’s children).
People tend to focus on arrangements that concern only the direct biological children and fail to ignore the other children. The problem with this is that the Courts take into account the relationship between siblings, and not just direct biological children. The court’s will consider all relationships between all types of siblings (a biological connect will be considered more important than a step-sibling relationship). Moreover the Family Court do not like to separate children unless it is the last option available.
Any proposal to the court to separate children may suggest to the court that you are not child focussed and your proposed arrangements are not in the best interests of the children.
Given the above it is never wise for any proposal to include a suggestion that children should be split up, especially twins. This is not to suggest that children are never separated because it does happen on occasion however alternative measures need to be suggested before separation.
7. Not preparing properly for Court Specialists or Experts/ Coaching Children
One of the worst and most fatal mistakes that I see regularly in child custody matters is people not mentally preparing themselves for Family Report interviews. People underestimate the importance of family reports in the Courtroom. For some Judges Family Reports will be stringently followed, for other judges Family Reports will be seriously considered but decisions can still depart from the report. If I was a betting person I would place my money on the fact that the judge you may appear before will hold significant weight on the family report. As such the family report could make or break your claim for sole custody so it pays to make sure you are prepared.
When I say be "prepared" I do not mean tell your children what to say to the psychologist/Social worker. I have seen many people do this over the years, and the reason I know they have done this is because the children tell the psychologist things like "daddy told me to say…" or it will be the very first thing they say when speaking to the psychologist alone and will repeat it in parrot fashion.
Parents in custody disputes tend to forget 2 basic traits of children:
- Children can be honest to a fault (or at least very bad liars); and
- Children do not like to be made to choose one parent over the other.
So how do you prepare for a Family Report Interview?
In order to prepare for a Family Report, you will need to give yourself a minimum of 1 week to do the following.
- For the week leading up to the Family Report refrain from saying anything negative to anyone about the other parent. Alternatively, make a clear effort to say and think of 3 positive things about the other parent each day. This will teach you to respond in a more balanced way to questions asked during the interview. Remember you cannot just shut off your imminent hatred and disdain for the other parent in a matter of minutes, it takes practice.
- If you don’t do it already, (for younger children) get down on the floor and interact with your children. Play the children’s games with the children. Teach yourself to actively engage with your children.
- Try being as civil and respectful as possible in communication with the other parent (whether by phone, in person or by email).
- Explain to your children that everyone will be speaking to a special person and it is ok for the children to be honest and tell them how they feel regardless of what mum and dad want.
- Get the anger out of your system now. The family report is not the time to air your dirty laundry and bad mouth the other parent.
At the Family Report you need to know and do the following things:
A. From the moment you speak to the Family Reporter on the phone to arrange times for interviews you are being evaluated right up until the moment you get back in your car to leave the interviews.
This means that everything you say in the elevator and waiting room is being watched. The secretary will report everything you say and do. This includes whether you are interacting with your children, how you speak to the other party when handing over the children to the other party, any discipline, any spontaneous affection from the children, how you respond to directions given by the family reporter.
B. Do not engage in an argument with the Other Parent
Please expect to come face to face with the other parent, their new partners and possibly their parents. When the children first see the other parent at the interviews, please do not prevent them from going to say hello. In fact it is important that you are seen to encourage the children to go back and forth between parents. As does happen, the new partners will be in attendance and this tends to send blood boiling. Remember, the Family Report is NOT THE PLACE to discuss your grievances. If the other parent becomes aggressive towards you, it is important for you to try and defuse the situation (remember everything rides on your ability to show your best self).
C. Do not Rubbish the Other Parent when Questioned
People tend to forget who they are talking to when having a 1 on 1 with the Family Reporter. Remember, they are not your friends. They are judging you, assessing you and determining who should have custody! Now is not the time to outline all your issues with his nose picking, or loud music, or the horrible TV shows he watches constantly. Now is the time to be selective and balanced in your concerns.
The family reporter will ask you to outline your concerns regarding the other party. Now here is where your week of training will assist. The key is to give a compliment sandwich…that means tell the family reporter something good about the other parent, but then paraphrase with something or things that the other parent needs to do to improve his/ her parenting skills, followed with a comment to the effect that "For the sake of our children I want to believe that with guidance he/she can find their way".
Eg. Bob really loves his children, however he takes drugs and has an anger issue which for the sake of the children I want to believe that eventually he may find his way…at least I hope so".
Finally remember you want to demonstrate to the Family Reporter that you are the best parent to have custody of the children and that you will put the children’s interests first.
8. Allowing the Children to play one parent off against the other
This issue tends to arise when the parents don’t communicate with each other or are competing for the affection of their children. As a result of parents constantly fighting for their children’s favour is that the children end up playing one parent off against the other and the parents then lose their ability to parent the children.
What parents don’t realise is that children thrive on rules and structure. While they may test boundaries from time to time (most) children when asked, want mum and dad to make the decisions for them. The children don’t want to grow up fast and make adult decisions but like all children if they can sense that they could gain something (usually money, iPads or clothes) by making one parent feel guilty or frightened then children will exploit the obvious weakness.
The problem with caving into your children’s whims is that it leads parents to make decisions based on fear which inevitably leads to very bad parenting decisions which are not in the children’s best interests.
The Courts pick up on family dynamics and in my experience it is the parent who refuses to cave in to the whims of the children who may not win the matter at a interim basis but will ultimately win custody on a final basis. More important than your court proceedings is the long-term emotional health of your children, and by not giving in to your children out of fear in the short term will hopefully result in a more level-headed person in the long term. After all why fight so hard for your children in court if you are not going to be the best parent you can be And create the most stable people you possibly can.
9. Involving the children in the parental dispute/ Legal Proceedings
If you want to upset a judge quickly, just involve your children in the court proceedings. The involvement of children in the family law court proceedings is so despised by judges that I have eve seen a person be held in contempt of court and jailed for attempted to bring children into the courtroom to listen to the proceedings.
For those of you who don’t know, any person under the age of 18 years of age is not permitted in any Family Law Court without the permission of the judge. As far as judges are concerned this forum is for the ears of parents only. It is inappropriate for any child to know what goes on in a court and why decisions are made. If a child’s wishes are to be taken into account, the court’s consider that the Family Report process is the appropriate way to bring those wishes to the attention of the court.
Further showing a child the court documents is considered extremely inappropriate and here is why…
- Your child may not know one parent takes drugs
- Your child may not know one parent has had an affair
- Your child may not believe the other parent is a bad parent even if you do
- Your child may worship the ground on which both parents walk and some information is frankly not relevant to whether a person is a good parent.
- The information in the proceedings could undermine the relationship between the child and parent
- Your child doesn’t want to know!!!!
Remember that in custody matters we see good people at their worst. Custody proceedings can throw a lot of mud at each parent…it is not pleasant for adults to witness let alone children. Let your children be children.
10. Not putting the Best Interests of the Children first in their decision making
It is not uncommon for parents to get caught up in the separation and in doing so start to focus on only the bad things that the other parent does and their own self interests. For example "I want to live here because it is closer to my work", "I want the children to live with me so I don’t have to pay as much child support", "The other parent can’t dictate to me when I will and won’t see my children". The list goes on and on….and I am sure I have seen most of it over the years.
What is not done often enough and yet is without a doubt the most important thing ever considered in Family Court custody matters is parents making decisions which are in the best interests of the children.
People tend to interweave their own agendas and fashion them in a way to try and justify how their decision is in fact in the best interests of the children when in fact the decision that is made is solely about "winning" or about "the parent hurting the other" or "not letting the other parent get what they want"…this list is endless but the main theme is selfishness.
Now before I get lashing of hate mail, I am not suggesting all decisions made are done so out of selfish means but I will say it is not an uncommon trait that I have seen over my many years in Family Law.
So how do you make sure that you are putting your children first?
This Is simple to determine. Whenever you are about to make a decision regarding your child ask yourself this question "Is what I am about to do truly in the best interests of my child or am I getting something out of it?" If the answer is yes, then your decision is putting the children first. If the answer is no or maybe, then your decision is not for the benefit of your children and as such is not the correct course of action.
Remember ultimately the Family Court MUST make a decision which is in the best interests of the children. While the judges look at many factors to assist in determining what is in the best interests of the child, they are still just humans who are making decisions having regard to their own experiences of what they consider is good parenting or not. As such make sure you don’t shoot yourself in the foot prematurely by doing something foolish in your custody matter and of course, as always, if you aren’t sure if you are doing the right thing….Then Get legal advice.