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The Two White Elephants in Almost Every Child Custody Case

I would be filthy rich if I were given a dime for every time I was asked two questions: 1) How long is my child custody case going to take; and 2) How much is my child custody case going to cost me.  My answer two these two questions have always been and will always be: “I don’t know.”

Only by acknowledging the White Elephants in a custody case can one better grasp how long and how much their custody case will cost.  Make a cup of tea or coffee and continue reading. This blog article just might save you thousands of dollars in legal fees and therapy bills!

In my opinion, unlike any other area of law, family law is the most complex and difficult area of law. It’s not complex or difficult as to the facts or law involved, but rather, because of what I call “nuanced” issues.  Merriam-Webster’s dictionary defines the term “nuance” as   “. . .   sensibility to, awareness of, or ability to express delicate shadings (as of meaning, feeling, or value).”  Experience tells me that it is the nuances that are  the white elephants in a custody case.  In family-law custody cases, the nuances, or white elephants as I call them, are the negative emotions (and hidden agenda) involved in a custody case dragging on for months and months and even years.  Emotions include, but are not limited to, rage, anger, resentment, feelings of hurt or abandonment, revenge, disgust, and about a hundred other negative emotions.  As with all white elephants, they are the largest in the room and the things always ignored and not acknowledged. To make matters worse, these emotions then serve as the catalyst to one or both parents acting unreasonable or irrational.  For example:

  1. Party A refusing to allow Party B to see the children.
  2. Party A telling the children that Party B is a cheater, a liar . . . has abandoned the family—in order to cause feelings of alienation between the children and Party B.
  3. Party A scolding the children for being nice to Party B
  4. One of the parents refusing to reach any agreements regarding visitation or custody (legal and/or physical).
  5. One or both of the parents making false or exaggerated allegations about the other parent, e.g. being an alcoholic, a pedophile, child abuser, etc.
  6. One or both parent accusing the other of domestic violence.

In all these situations, the children are suffering from emotional trauma, legal fees are hemorrhaging the pocket-books of one or both parents and the emotions are escalating, not diminishing.

A recent case of mine illustrates the last example. About a year ago, the mother, contrary to the terms of the custody 2014 order, decided to take the parties’ three children out of the country for a three-week vacation. The father tried to convince the mother to comply with the court order since it only allowed for two “non-consecutive” weeks and written consent of the “other parent”. Such pleas fell on deaf ears. Then, father, in sheer desperation and panic, called the police hoping that they would stop mother from leaving the country with the couple’s three children. All the police did was tell the father to go to court to resolve the issue. The police then left.  In his frustration and anger, Father kicked the mother’s front door and caused a crack on the front door, causing approximately $150-400 in damage.  Mother, then called the police and filed a complaint of trespass, felony vandalism and domestic violence.  Consequently, the police arrested dad and he spent a day in jail.  In both instances where the police were involved, the children were present and witnessed all events. Mom is a litigation attorney and dad is a successful business owner. So, what would cause these otherwise normal parents to behave thus?  Well, here’s a typical example of a nuance white-elephant issue: dad cheated on mom during the marriage for about five years. And, it is this anger (white elephant) that is preventing these otherwise normal people from resolving their custody and visitation matters. (Fast forward today: a 730 custody expert has been assigned to the case and the case is still remains unresolved. Mother filed for divorce in 2012!)

While I wish the above illustration was a rare occurrence, I am sorry to say this case is pretty typical–and not the exception to the California family-law custody forum. From my professional experience, about 90% of the cases have all the ingredients for a perfect storm:  Let’s consider the following ingredients:

  1. Two parents
  2. At least one parent who is unable to communicate with the other party—which is why they can’t resolve the issues on their own without court intervention.
  3. At least one of the parents is angry at the other parent (or hurt, abandoned, cheated on, etc.)
  4. One or more minor children
  5. One or more negative acts that has caused one or both parents to no longer want to be together (e.g. alcoholism, cheating, drugs, etc.)
  6. Courts care little about a parent’s feelings, e.g. that he/she has been cheated on and that he/she is hurt with the other parent; thus, these feelings are never addressed or resolved. (White elephant—ingredient)

As you can see, the ingredients for a perfect storm exist at the commencement of the custody/visitation case.

While this blog article may appear to be about the parents, in reality, it’s really about the kids! You see, they are the second white elephant in the room. And like the first elephant, they have no say and no voice.  Ironically, all the fighting has to do with the children—yet their voices are not heard . And their emotions or feelings are not truly considered.

I would hope that you will consider your custody case more like a chess game rather than a battle ground. For instance, while you may win the battle (by wining your custody case), you may still lose the war. For instance, what are the casualties of the battle?  First, the children are extremely frightened (exhibiting signs of stress and anxiety) and/or angry and/or frustrated.  Statistics show that by the tween and teenage years, girls and boys entangled in high-conflict custody cases compared to children not dealing with such issues are much more likely to engage in risky or dangerous behavior.  For instance, these children are much more likely to engage premature sexual activity (sexting, premature sex) underage drinking, drugs and other risky behavior.  Why? First, the parents are too tired and depressed (because of the continual fighting) to notice what the kids are doing. Second, the parents are so determined to damage the relationship between the children and the other parent to care enough to put the children’s feelings over their own. For instance, the child misses her mother and father and yet the child is denied the visit—out of anger or vengeance or, better yet, “Little Jimmy is better off not having a dad (or mom).”

The chess-game version of the custody case looks like this: one or both parents put aside their negative feelings about the other parent. The parents put the children first to set custody and visitation that is in the childrens’ best interests.  The legal procedures for setting custody and visitation are just that—a procedure.   There are no white elephants interfering with prompt and efficient resolution of the matter.  Under this scenario: the parents have learned how to be cordial toward one another, the child is not stressed about seeing two parents or stressed  at visitation exchanges, and so on. (The list is endless!)

Parents, please keep the following in mind: your child will eventually grow up and make his or her own decisions!  Based upon my professional experience, here are some situations that have arisen as a result of the guerilla-warfare approach:

  1. Only one parent is invited to a wedding with the other parent being excluded
  2. Only one parent is invited to a baptism “ “ “.
  3. Only one parent attends the school graduations—or the other parent is located at the other end of the auditorium—in order to prevent the parents from making a scene!
  4. Only one parent is invited to the grandchild’s birthday parties.
  5. Only one parent (at a time) is invited to holiday gatherings.

If these white elephants are not identified and removed from the room, these nuanced issues will continue to affect and infect the family dynamic for many years.  Let me share a recent and true story:  When “Diana” was about 14 years old, her mother filed for divorce and the parents went through an extremely difficult and highly contentious divorce—to include a nasty custody battle.   After her parents divorced, the family was forever divided.  The cardinal rule for Diana and her siblings was that if you invited one parent to an event you couldn’t invite the other parent. So, each time there was a special or family event, only parent could be invited.   For Diana’s 50th birthday, she wanted to invite both parents to her birthday party. On this occasion, she hoped her parents would make an exception. No exception was made.   Diana chose her dad. As a result, her mom refused to attend.  A few weeks  later, Diana’s mother died.  And because mom was by that point so estranged from her kids, they didn’t know of her death for several weeks! (The mother died alone in her home several weeks later.)  Yes, this is a true story! And yes, this behavior is because of the 1976 divorce.)

I have come to know and believe with all my heart and soul that only love and forgiveness heals all wounds—not hate, not vengeance, not aggression.

There’s help!

Like me, the courts are acutely aware that it is the numerous white-elephants that interfere with resolving custody cases swiftly and expeditiously. The Judicial Council of California’s website for families and children has a new, free online course available to parents going through separation and divorce.  “Parenting After Separation” is a component of the Families Change website (www.familieschange.ca.gov) providing approximately three hours of content that can be accessed through the site.  The course was developed in response to requests from courts throughout the state for an efficient way of getting parents information they need before or during a child custody mater.  The content addresses the emotional aspects of separation and divorce, children’s development needs, and the court process.  I highly recommend this three-hour course to anyone dealing with custody issues.

For the children:  At www.changeville.ca.gov, you will find a website aimed at teens and children and covers child custody and support issues. The www.changeville.ca.gov is a highly interactive website for children.  This website, like the one above, makes it easier for the court to provide information to families and children about divorce and separation.

And lest you be tempted to ignore my warning, consider the following:

  1. White elephants cause custody cases to linger in the court system for years!
  2. White elephant cases cause legal fees to bleed the family wallet . . . savings and retirement account. It’s not uncommon for legal fees to topple into the six figures!
  3. White elephants are bad for your emotional, spiritual and financial health!
  4. Children of divorce and contested custody cases are more likely to repeat this behavior in their own divorces and custody cases!

In the end, you, more than I or any other family law attorney, knows how long your custody case will take or how much it will cost. Why, because you, more than I, have the power to resolve your case efficiently and cost-effectively.