A Dad’s Worst Custody Argument Strikes Again
Fathers have come along way in the world of child custody. When this writer started practicing family law in 1982, dads were second class citizens. Inferior parents at best who typically left custody court with Saturday noon to Sunday dinner or alternate weekends and a week in the summer.
Lots has changed in forty years. Candidly, fathers have stepped up and many times leave the same courthouses with 50/50 custody or something close to it. Another factor is labor force participation by women. In 1980 only about 25% of women with pre-school kids had jobs outside the house. Twenty years later that number was closer to 65%. Thus, a lot of custody agreements today are borne of necessity.
But some prejudices die hard and among the most irksome is the father who has left one family to hook up with a new “better” family. And that is the tale buried in the non-precedential case of today Bleam v. Wynne.
Bleam and Wynne’s relationship dates to Summer 2016 and L.W. was born in July 2017. The relationship was over in 2018 and the parties agreed that mom would have weekdays and father weekends. There was a round of modification hearings in 2020 that yielded a 50/50 schedule. Father is supposed to have filed for primary custody on January 1, 2022 although one wonders how he got into the courthouse to file on New Years’ Day when the rest of us can’t. Perhaps that’s a Lehigh County tradition. There was a counterclaim and in a surprise move, the parties agreed that equal custody was not working and someone needed to be primary.
The trial took three days. Mom resumed living with her parents. Dad moved on to a new fiancé with whom there was, yep, another child. The Court heard the case, performed the statutory analysis, and awarded mother primary physical custody. So, this is dad’s appeal.
The first two faults father had with the trial court ruling were the somewhat standard. On the issue of who had been primary caretaker, the court credited mother with the two years she was primary caretaker even though that was superseded by two years of shared custody. The second complaint was that father should have gotten more traction out of an incident where mother “withheld” the child. The trial court did not see this as quite as serious an infraction as father would liked it to have been.
But then we get to the Achilles heel of paternal arguments for primary custody. “Judge, the mother of my child is living alone (or with family). I got a brand new intact family with a woman who is smarter and more attractive and makes more money than my former girlfriend ever will. In fact, new girlfriend and I have produced a brand new sibling for my child to grow up with. We even bought a dog; something my ex is allergic too.”
It’s factor No. 4 and it’s the custodial equivalent of Love Potion No. 9. You never see women come to court and tell you that they should have primary custody because their boyfriend is smarter, wears nicer clothes or makes more money than their ex partner. This argument is a guy thing.
To be fair, our quote is apocryphal and not representative of what father offered in this case. But fathers don’t seem to understand how odious it is for a parent to essentially argue that the other parent doesn’t measure up to the new model just found on the showroom floor. In 2018 Ms. Bleam was the most favored model. So much so the couple produced L.W. together. Yet, it appears that by 2020, there was not only a new woman in father’s life but a new baby to boot. From a judge’s perspective that’s two children by two women in three years and that is not going to be the harbinger of “stability and continuity” the statute references in a world where the father has not deigned to marry any woman.
As attorneys we sometimes fail to impart to clients that custody decisions are not algorithmic. Section 5328 enumerates 15 specific factors a court must address when deciding custody of children. But this is not a ballgame where 8 always prevails over 7. A custody decision boils down to a judicial hunch over which parent is more likely to produce a child who will function and be an asset to society. That means attending to school and dental appointments and other things meant to enhance childhood. Also wedge in there is “equity.” The willingness to share the child with the other parent and collaborate in making child decisions. This decision shows that the judge didn’t necessarily like some of mother’s approaches to parenting decisions and its seems that her conduct may not have been featured in Parent’s Magazine.
But when a father who has never married but produced two children with two women in three years suggests “his” is the path to stability, a judge has to wince. Sadly, this kind of hubris also comes into play outside the courtroom. It is not uncommon for a parent to tell a child just how great his/her new love interest is, in contrast to the child’s natural parent. It is as if the parent hands the kid two resumes and asks: “What about a new mommy? We got a candidate who has a master’s in early childhood education, runs marathons and makes twice what your mom does. Ready to switch?” It’s never quite that shrill but kids are already wary of the new love in your life and they are often harboring grief over the collapse of the family life they did have. Your joy at your new find is not easily shared. Step-parents can be a force for good but only when introduced in small doses.
This is also true of a custody trial. The opinion notes that father’s fiancé was a witness in the proceedings. That is actually a “must” witness. Any judge wants to meet the people the child will be living with so that he or she can assess whether that significant other is a force for good or evil. But, the fiancé is a limited witness. Once he or she gets beyond the necessary facts and starts opining about what’s wrong with the other parent or what’s in the child’s best interest, the judicial wincing begins anew. We don’t need a third parent in the courtroom. We need someone who would be a good role model for a child and someone who understands that they will never be a substitute parent. At best, a step-parent is what Hollywood calls a “cameo appearance.”
The conclusion: even if your new relationship is with someone who is or may be a better parent than the “presiding” one, keep your mouth closed and let the merit of your new love shine through during his or her brief testimony.
Bleam v. Wynne 2618 EDA 2022 (10/27/2023)
