Laying the Foundation for a Custody Battle
This piece was contributed by GlennSacks.com reader Josh. As an attorney, I can tell all our readers that he gives some very sound advice.
It didn’t take long after my wife and I separated in Jan 2005, for her to begin to interfere with my relationship with my son, who was just turning 7 at the time. She did not give him phone messages. She did not always get him to the phone when I called. When he did get on the phone with me, she interrupted him and called him to do something within a minute, etc, etc. She refused to let him bring a toy with him when he came to see me. Not long after that all started, she stunned me by having me served with a Temporary Order of Protection that not only limited my ability to go to the house, but precluded me from even attending his little league games (for which I was coach) or his soccer games (for which I was also his coach). The TOP also prevented me from volunteering in his classroom, which I had been doing regularly for 2 years. As the months passed, her behavior became more and more difficult as she sought new ways to interfere with my having a relationship with Jordan.
As to custody, I was willing to settle for Joint Custody and agree to pay Child Support without litigation. When I broached the idea, she told me to contact her attorney, whom she had just retained. I tried that, but they were determined to fight and filed a petition seeking sole custody. The trial proceeded at something slower than a snail’s pace and it was not until June of 2006, a year after the separation, that they were finished putting on their case. We had not begun to put on our case when there was talk of settling the matter out of court. The negotiated settlement was to include Joint Legal Custody with Primary Physical Custody to her, meaning I’d pay Child Support. (All that time and expense got her nothing more than I would have agreed to nearly 18 months before. The good news was that I got more time with Jordan than I would have agreed to without going to court.) In NY, when two parties agree to settle a custody case, one of the attorneys drafts the Order, it is reviewed by both parties with their attorneys and once there is a final, agreed-upon document, it is presented to the court. If the judge sees no problem with it, she signs it and it is done. My lawyer said he would do the draft.
Here is where things got interesting. I told my lawyer that I wanted specific language in the custody order – language that would protect Jordan and me from her relentless attempts to undermine my relationship with him and that would make this work as easily and smoothly as possible for him. I wanted language that would prohibit her from continuing to do all she had been doing for nearly 18 months. At my attorney’s suggestion, I wrote what I wanted in the order and he turned that into the proper legal language and format. I understood, of course, that the order would apply equally to both of us and that was fine with me. The order was written to protect Jordan from bad behavior on either of our parts and I was happy to abide by it. Frankly, I knew when it was drafted that she, ultimately, would not be able to comply with it. Still, I’d have been a fool not to have learned anything about her behavior and not to try to mitigate it.
The final Order, agreed to and signed by the judge, is even-handed, of course. Sure enough, my wife violated the Order the very day it was signed by the judge and she continued to do so, violating parts of the Order that might be deemed less egregious several times per week. When, six months later, she refused to let me pick Jordan up when I was supposed to, depriving him of two days of school vacation time with me, I filed a petition citing that violation and some 80 others and I filed a Modification Petition seeking whatever relief I could get at the time. The case was delayed over and over. During the delays, she continued to violate the order and the judge allowed us to amend the petitions. In its final form, the violations petition listed 388 distinct incidents. As a result of all that had transpired, the final Modification petition sought sole legal custody for me. A major element in my being able to do this was that I kept notes of her violations. After the first month of life under the original Order, I started a spreadsheet on which I listed each violation, its date and the nature of the violation so I could match it to the specific provision of the Order that had been violated. Those notes, and the level of detail, formed the basis of my petitions.
The notes I took served me well during hours and hours of testimony. In addition to the notes I took, another important element in what I did was that I communicated with my wife almost exclusively via email. While I used email as a means of avoiding potentially angry conversations, I was also creating a paper trail of all that we both said and that, too, served me well in court.
As of this moment, I am still awaiting the ruling of the court. My attorney feels we put on a compelling case but the judge is free to rule however he wants and there is no way to know how he will interpret what is in Jordan’s “best interest.”
As non-custodial parents, we are in a difficult position. Much of what a custodial parent can do to make things difficult can fly “under the radar,” being not quite egregious enough to be addressed by legal action if there is a typical Custody Order in place – one that does not address the type of relentless behavior that can ruin a relationship between the non-custodial parent and the child.
I write this to suggest that parents pay close attention, right from earliest moment of separation (or even before) and note the ways in which the other parent interferes with the all-important parent/child bond. I understand that it is a time when we might be focused on other things, possibly trying to save the marriage or simply on trying to heal our own hurt feelings. However, it is critical to pay attention to what is going on. As crazy as it sounds, take notes. If you get the opportunity, ask your attorney to incorporate your concerns into a court order and then keep track of what happens. In the end, it just might be all you can do to fight off an angry, bitter effort to separate you from your child. If you make the effort to do all this, while making an even bigger effort to keep it all from your child and to keep him/her out of it, you will know you have done all you can and, somehow, your child will know that you stood up for him.
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