Sunday, July 29, 2007

End of Summer Custody Disputes: Should I Try to Get Custody?

Every year, at the end of July or the first of August, there is an upsurge of court filings where the non-custodial parent is seeking custody of a child, hopefully to be resolved before school starts. Immediately preceding that upsurge, the child has often spent from a week or two to a month with the non-custodial parent. Parting is not always sweet sorrow and when it is time for the child to go back to the other parent, often the battle begins.

There are four common ways that these conflicts develop.

First, there is a spontaneous start. The parent and child miss each other when they’re not together and they may have had an especially wonderful visit this time. Either the parent or child may start a discussion after thinking how wonderful it would be to live together "all the time".

A second possibility is that conditions (job, home, school, remarriage, etc.) may have changed and the change of custody might really be in the child’s best interest.

A third possibility is that one party has been planning it for a long time and has been planting seeds of discontent, envy or desire through hints or little comments made to the child or around the child. In effect, a parent can make a direct or indirect offer of some type to win over a child. Telling a child of 12 that he or she can get a computer game system or telephone if they live with the non-custodial parent can be pretty powerful. Promises of a car or freedom to do things the other parent won’t permit can work with older children.

A fourth possibility is that a party may act maliciously. That could include inventing or distorting allegations of abuse or neglect, or simply agitating behind the scenes to undermine the other parent. Often, a parent acting maliciously is actually angry over some unrelated and unresolved issue and uses the custody fight to get back at the other parent or to intimidate the other parent from pursuing some other matter.

Whatever the motivation, the difficult situation is often made worse by one side having a child, 12 years of age or older, sign a statement expressing his or her preference of the person he or she wants to designate the child’s primary residence. Even though signing that statement puts the child squarely in the middle, Texas law permits it and it is often used. (Quite frequently, the child later signs a statement choosing the original custodial parent to be the one to designate the child’s primary residence.)

Here are 5 things to consider when deciding whether to file a motion to change custody or when deciding how to respond to such a motion.

1. What would be in your child’s best interest? It’s not a
question about a parent – it’s about the child. Where is the best school? Where are the child’s friends? Which home is better, or are they both OK? Does the child have some special needs? If so, how can each parent contribute? Is one parent better able to provide support and nurturing than the other? Where is the better environment for the child? The focus should be on your child.

2. What’s really changed since custody was last determined?
While there are always changes in life, are there some significant changes that have affected your child?

3. Be careful to avoid manipulation by your child. Children learn
early that they can win by playing both parents against each other. They understand that they can create a bidding war and come out ahead. They can also punish one parent by wanting to live with the other one. If your child has initiated this process, look for signs of manipulation.

4. Figure out the underlying motivations of each party. Is this
really just a way to get to spend more time with a child? Is it intended to either get or avoid paying child support? (If so, it’s pretty short-sighted.) Have there been problems in sharing time between the parents? Does one parent really have a much better environment for the child now? Are there other conflicts between the parents? If so, is a custody fight a way to put pressure on the other parent?

5. What is this going to cost, financially and relationship-wise? Can you afford a custody fight that could cost tens of thousands of dollars? Is there a better use for that money? If you have gotten along well with the other parent, a custody fight will probably end the cooperation and peaceful coexistence. If the relationship is already not good, there may not be as much at stake, but that may mean that the other parent will fight harder out of anger. Either way, there will be a substantial cost.

A decision to file for a change of custody during the summer should not be made lightly. Before filing, one should carefully consider any hidden agendas, the costs involved, the reasons for changing and possible alternatives to filing.

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