Is the Current Custody System Promoting Conflict?

The first page of the non-precedential custody and contempt decision in T.J.N. v. K.M. more or less reflects a lot of the custody cases we have reported on in recent years.

            “Mother and Father were never married, ended their relationship shortly after [R.V.’s] birth in July 2009 and have been involved in custody litigation since September 2009.”

The parents shared custody since 2014 with Mother having primary and Father having alternate weekends and one alternate weeknight during the school year. The custody order required communication to be through a proprietary on-line program called “Our Family Wizard” that keeps a continuing record of communications between the parties.

The rest of the opinion recites the daily drudgery of the family lawyer’s existence. The Court order required coordination and mutual consent to extracurricular activities. But parents don’t seem to like that rule. So, late in 2022 the gloves came off. Mother struck first with modification and contempt petitions built around:

1. Failure to see the child took prescribed ADHD medications
2. Failure to take the child to her hockey
3. Disparaging comments by Father about Mother.

Father struck back with his own modification and contempt, featuring allegations of:

1. Failure to cooperate in exploring therapy for the child
2. Unilateral cancellation of an appointment Father had scheduled to discuss medications
3. Failure to cooperate in Father’s request that Mother be tested for drug use.

In April 2023 Father added:

1. Failure to consult before enrolling the child in hockey
2. Failure to provide the hockey schedule
3. Unconsented cancellation of visits
4. Alienation

This begat a two day trial in May 2023 with two independent witnesses and the 14 year old. It produced an order awarding Father alternate weeks in the Summer plus the prior alternate weekend schedule. Both parties were found in contempt and a parent coordinator was appointed.  Mom appealed.

The trial judge was affirmed. Like a lot of the cases which have come down in recent years appellate judges are devoting lots of ink (11 pages here) to the needs of a 14 year old child. If we focus on the needs of the child, they seem pretty clear;

1. An expert medical opinion about ADHD prescriptive/therapeutic needs
2. Two parents who would follow an order about keeping each other apprised of sports.
3. Compliance with the court ordered custody schedule by the parents.
4. Parents imbued with the wisdom to keep their opinions about each other to themselves.

It doesn’t take genius to figure out that these parents are still out for each other. And

chances are that the child’s needs continue to take a back seat to parental needs to prevail over each other.

            The problem with the present custody system is that it offers no emergent care. So, the wounds of being ignored are allowed to fester until massive surgery (i.e., a two day custody trial) is required. And if the surgical result is unsatisfactory, the appellate courts are asked to provide a second opinion.

            The Trial Court found that mother enrolled the kid in hockey without telling dad. Thus, little surprise that whether by accident or design, the child missed some hockey. The parties disagree about whether a child has ADHD and/or how to best remedy it. Rather than secure an independent second opinion by someone who treats the condition, better to cancel appoints or withhold the medication. And we can’t tell whether the missed visits were the product of deliberate refusal or the passive aggressive defense of “The kid said she didn’t want to go.” Because there is no system of triage and emergent treatment, frustration boils over and produces two modification petitions. Those require full record hearings and a review of the 16 factors that are prescribed by statute.

            Unfortunately, these are not custody issues. These are control issues. They have two common sources. First there is “You dumped me; I’ll teach you.” The second has two roots: “I parent better” and its analogue: “You can’t parent. Thus, you don’t need to know the hockey schedule or participate in treatment for an educational disorder.” If one parent gets the kid a cellphone, the other parent doesn’t need access to the phone, right? And if your teenage kid tells you she is not allowed to tell you her cellphone number or for you to monitor what ugly things that phone might have on it, the correct response is always: “Well of course darling child, you are well into 5th, 6th or 7th grade now and at that age my parenting responsibilities are confined to providing money.”

            A lot of kids could go to college on the fortunes their parents squander over “control” based custody litigation. Instead, many of these kids end up not in college but on a therapist’s couch or worse because their parents pretend to think that they know best. Long ago, custody cases were confined to really serious problems which embarrassed a parent’s ability to do real parenting. For that reason appellate decisions began to create some broad rules such as:

1. Only judges could decide custody matters.
2. Judges had to make a full record and evaluate all the custody factors in writing
3. Anyone could ask to modify custody if he or she thought it would benefit the kid. No change in circumstances was required to seek modification.

Meanwhile the early 2000s brought the rise of the pro se (self represented) parent. File and try your own case. If you lose, walk back down to court administration and file again. You can see it has now affected the appellate courts. In case after case, we see the ruling complain that the issue was not preserved for appeal, the brief did not conform to rules or cited no legal authority for what the trial court got wrong. So, we have lots of litigation, 41,000 new cases a year, but no one is really managing the hockey schedule, the cellphone or the ADHD medication.

This case already had a September 2021 custody order. Thirteen months later the gloves came off again. The cross claims for modification were heard in May, 2023. It didn’t take long for the trial court to figure it out. The court ruled three business days after the hearings concluded. This fast track custody appeal was decided in seven months. But one gets the sense from history that the parents of R.V. may be back for more.

Our custody system needs a triage component; one that decides whether the fight is over “power” or “best interests.” If the former, parents need to be put in line and a helpful way to do that would be for them to pay for the cost of their “party” including judicial time and court staff time. If the case telegraphs more serious issues, such as addiction, neglect, relocation or consistently poor judgment, there should be a full record and a careful review of the factors. Unfortunately, serious custody cases are slow to be heard while parents fight wars over cellphones, holiday dinners, and hockey schedules overwhelm not just the trial dockets but now the appellate ones as well.

Story originally seen here