Pursuing a Change of Custody
Parents thinking about returning to court to seek change of custody need guidance from their attorney. Many times they have very unrealistic expectations about their chances of winning the case and haven’t thought about the possible consequences of pursuing this course. Parents may feel mixed emotion when children say, “I want to live with you.” They may be excited by the compliment and yet overwhelmed by the thought of the responsibility and lifestyle changes. Logistically, they may foresee many problems. They may not have a babysitter or adequate space. Living in an undesirable neighborhood for raising children could cause them concerns. While a parent gingerly inquires about their children’s reasons, the parent can imagine how their exspouse will feel when he or she hears the news.
I do not recommend a parent seek a change of custody unless the child initiates the request or unless the parent has very good reason to believe the change would be better for the children. The attorney must tell the parent about the risks in seeking custody. If he or she loses, the relationship with the other parent can be seriously jeopardized, and alienation will intensify. The other parent may no longer be flexible and cooperate with changes in parenting time. Plus, this could be an expensive price to pay for a long shot.
Below are several specific points attorneys should discuss with their clients before deciding to seek custody. After considering these points and getting some education from the attorney, the parent should be able to make a more informed decision about whether or not to proceed.
First, when children are asked where they what to live, they may lie and say what they think a parent wants to hear. They do not mean to be malicious. Instead, they want to avoid hurting anyone’s feelings. Often their stated desire to live with a parent is their way of saying, “I want mommy and daddy back together.” This is particularly true with young children. The children’s fantasy that somehow their parents will reconcile is very persistent, even with teenagers. Even when one parent has already remarried, the children often express the hope that their parents will get back together again.
Second, when thinking about a contested change of custody, parents should be told that the process could move very slowly. This may cause reconsideration of a decision made quickly or in anger.
Third, parents need to learn about the laws for changing custody and the workings of their local court. Remind parents that it is the court, not their children, that decides custody. Parents should try to learn from their attorney the likelihood of success in getting custody. In many jurisdictions, getting an involuntary change of custody is nearly impossible unless there is a legal provision for the children to choose where they want to live. Otherwise, the parent must prove to the court that their children’s best interest is served by their living with them. This often involves one parent publicly degrading or attacking the ex-spouse to support the argument that a change is necessary. Successfully attacking the ex-spouse’s capacity to parent adequately is very difficult. Typically, courts are justifiably biased in the belief that the children are better off remaining with the custodial parent to preserve stability.
Fourth, parents need to be reminded not to make promises to the children about the outcome of the court proceedings. If an ex-spouse fights the other parent’s attempt to gain custody, the time it takes in some jurisdictions to change custody can exceed a year. The attorney can give parents a better idea as to how long the process may take if the change of custody is contested or argued. Even if a parent feels confident telling their children, “After today’s hearing you will come to live with me,” they should not make promises they cannot keep. This can be very unsettling to the children. Often cases are continued when the court realizes that a full hearing is needed to settle the case. Even after the judge hears the testimony, it may take days or weeks for a decision.
Fifth, if possible, the parent should raise the question about seeking a change of custody to the other parent. The ex-spouse may feel hurt and angry, but it is better for the parent to raise the issue rather than having children do the dirty work. The issue is between the ex-spouses, not between the children and their other parent. Parents should not have their children be the harbinger of bad news. If a parent is afraid to talk to their ex-spouse about a change of custody, they should think about how their children will feel.
Finally, when a parent hears for the first time that their ex-spouse is seeking custody, they should not drill their children for answers about where they want to live and why. Parents need to keep their composure. They should reassure their children of their love while making no harsh declarations about what they are planning to do. Parents need to take time to calm down and consult with their attorney to learn the best course of action. The attorney will advise parents what to do next.
Taken from: PARENTAL ALIENATION: NOT IN THE BEST INTEREST OF THE CHILDREN by DOUGLAS DARNALL from NORTH DAKOTA LAW REVIEW, Volume 75, 1999, p 323-364
Parents thinking about returning to court to seek change of custody need guidance from their attorney. Many times they have very unrealistic expectations about their chances of winning the case and haven’t thought about the possible consequences of pursuing this course. Parents may feel mixed emotion when children say, “I want to live with you.” They may be excited by the compliment and yet overwhelmed by the thought of the responsibility and lifestyle changes. Logistically, they may foresee many problems. They may not have a babysitter or adequate space. Living in an undesirable neighborhood for raising children could cause them concerns. While a parent gingerly inquires about their children’s reasons, the parent can imagine how their exspouse will feel when he or she hears the news.
I do not recommend a parent seek a change of custody unless the child initiates the request or unless the parent has very good reason to believe the change would be better for the children. The attorney must tell the parent about the risks in seeking custody. If he or she loses, the relationship with the other parent can be seriously jeopardized, and alienation will intensify. The other parent may no longer be flexible and cooperate with changes in parenting time. Plus, this could be an expensive price to pay for a long shot.
Below are several specific points attorneys should discuss with their clients before deciding to seek custody. After considering these points and getting some education from the attorney, the parent should be able to make a more informed decision about whether or not to proceed.
First, when children are asked where they what to live, they may lie and say what they think a parent wants to hear. They do not mean to be malicious. Instead, they want to avoid hurting anyone’s feelings. Often their stated desire to live with a parent is their way of saying, “I want mommy and daddy back together.” This is particularly true with young children. The children’s fantasy that somehow their parents will reconcile is very persistent, even with teenagers. Even when one parent has already remarried, the children often express the hope that their parents will get back together again.
Second, when thinking about a contested change of custody, parents should be told that the process could move very slowly. This may cause reconsideration of a decision made quickly or in anger.
Third, parents need to learn about the laws for changing custody and the workings of their local court. Remind parents that it is the court, not their children, that decides custody. Parents should try to learn from their attorney the likelihood of success in getting custody. In many jurisdictions, getting an involuntary change of custody is nearly impossible unless there is a legal provision for the children to choose where they want to live. Otherwise, the parent must prove to the court that their children’s best interest is served by their living with them. This often involves one parent publicly degrading or attacking the ex-spouse to support the argument that a change is necessary. Successfully attacking the ex-spouse’s capacity to parent adequately is very difficult. Typically, courts are justifiably biased in the belief that the children are better off remaining with the custodial parent to preserve stability.
Fourth, parents need to be reminded not to make promises to the children about the outcome of the court proceedings. If an ex-spouse fights the other parent’s attempt to gain custody, the time it takes in some jurisdictions to change custody can exceed a year. The attorney can give parents a better idea as to how long the process may take if the change of custody is contested or argued. Even if a parent feels confident telling their children, “After today’s hearing you will come to live with me,” they should not make promises they cannot keep. This can be very unsettling to the children. Often cases are continued when the court realizes that a full hearing is needed to settle the case. Even after the judge hears the testimony, it may take days or weeks for a decision.
Fifth, if possible, the parent should raise the question about seeking a change of custody to the other parent. The ex-spouse may feel hurt and angry, but it is better for the parent to raise the issue rather than having children do the dirty work. The issue is between the ex-spouses, not between the children and their other parent. Parents should not have their children be the harbinger of bad news. If a parent is afraid to talk to their ex-spouse about a change of custody, they should think about how their children will feel.
Finally, when a parent hears for the first time that their ex-spouse is seeking custody, they should not drill their children for answers about where they want to live and why. Parents need to keep their composure. They should reassure their children of their love while making no harsh declarations about what they are planning to do. Parents need to take time to calm down and consult with their attorney to learn the best course of action. The attorney will advise parents what to do next.
Taken from: PARENTAL ALIENATION: NOT IN THE BEST INTEREST OF THE CHILDREN by DOUGLAS DARNALL from NORTH DAKOTA LAW REVIEW, Volume 75, 1999, p 323-364