Determining the Best Interests of the Child[ren]

The stakes are raised in child custody, visitation, and support cases. 

Why? 

Time can and oftentimes does heal the wounds an adult may suffer through the transition of a family law matter, but children typically don’t have the emotional fortitude to get through a traumatic separation from parents unscathed.

            Study after study suggests the damage to trust and future relationships is real and lasting.  So, it’s important to handle child custody, visitation, and support cases delicately.

            For parents, this means avoiding parental alienation at all costs.  This means, whatever is going on between the parents in court or in the lawyer’s office, upon returning home, the child should remain blissfully ignorant of any parental animus.  Parental alienation is typically easy to brush off in the abstract, but a single flash can trigger a brush fire. Let me explain.

            A parent will be cruising along with a stiff upper lip towards the custody battle.  Then, in a moment of weakness, perhaps a long day at work, a night of poor sleep, just before dinner, a child will come to that parent and whine about a missed event or a diminished expectation. A parent will break down, wanting to transfer blame. “Well, if you really want to go to that summer camp, ask your father!  He apparently doesn’t care about this family!”

            That leads to a call, “Dad, how come you don’t care about us?”  “What!?”  “Well, that’s what Mom said…” And it begins.  The pact is broken and the child becomes a new front in the custodial war.

            Understand the far-reaching impact of parental alienation and make a commitment: whatever happens or is said between the two of you, to the kids, you and your former spouse are the best parents on the face of the earth.  No matter what.

            Ten or fifteen years ago in Virginia, fathers could assume that the mother would be almost guaranteed primary custody, and the “every other weekend, two weeks in summer” routine would begin. 

            Not anymore.

            Increasingly, shared legal and physical custody is the norm. 

            Think of custody like the trunk of a tree that splits in two—legal and physical.

            Legal custody is the portion of custody that relates to important, potentially life-altering decisions that arise in the course of a child’s life.  Decisions such as religious preference, public or private school, medical treatments, discipline, and travel, among others.

            On the other hand, physical custody at its most elementary level is, with whom is the child spending the day or night?  Primary, physical custody represents who has the child the majority of the time.

            The number of additional days that a child spends with one parent over the other typically means that the parent with extra time will likely become eligible for more child support.  Once one parent has less than 90 days or overnights per year, child support calculations increase for the other parent considerably. 

            To generalize, shared custodial arrangements mean that dads are getting more time and paying less in child support than they were even ten years ago, adjusted for inflation.

            This kind of arrangement is not guaranteed, of course, but with good legal representation and a clean behavioral background, shared custody is now on the table in most courts in Virginia. 

            If the idea of shared custody is impossible for you to fathom, and you are facing a resulting custody battle, choose counsel wisely.

            In the context of divorce, the same values highlighted in an earlier chapter detailing how to choose an appropriate divorce attorney matter even more here.  After asset division and spousal support determination, child custody issues can very easily devolve into multi-year courtroom dramas.  In my view, these are avoidable tragedies. 

            To avoid such a scenario, you must have a spouse who also wants to avoid an irrational battle.  Actor Alec Baldwin of 30 Rock fame wrote a book on his own multi-year custody battle. In A Promise to Ourselves:  A Journey through Fatherhood & Divorce, he details his series of attorneys (until finding the right one), an overwhelmed system that couldn’t effectively process his complicated case with any expediency, and the ravages of parental alienation syndrome on his child. 

            Whenever possible, as we suggest in our divorce cases, it is best to attempt agreement out of court.  In the midst of a divorce, this means additional provisions to outline child visitation, custody, and support within the Marital Settlement Agreement.  After a divorce or where the parents never married, custody and visitation issues can be resolved outside of court through a Consent Agreement, that is ratified by the judge in court through a Consent Order. 

Where settlement is not possible, an experienced trial attorney who focuses on family law cases is essential.  And as in divorce, preparation is key. 

• Gather and organize any and all medical and daycare related expenses.
• Keep a detailed journal noting both parents’ time with the child[ren]. 
• Record any outbursts or signs of aggression.
• Make a list of counselors, therapists or institutions visited by the child[ren] or parents.
• Gather a list of helpful witnesses that can support your case narrative.
• And above all, keep calm in front of the child[ren]. 

            Our firm is in court nearly every week for complex custody cases.  While we steer your case towards the goals outlined in that initial consultation, take special care to manage your emotions in front of the children, and ensure the children’s lives remain steady and consistent.

            Character witnesses can have an impact in court, so gather a list of favorable witnesses that demonstrate the parental role you enjoyed with the children during the marriage.  On the other hand, witnesses can also report on assumed disinterest in parenting as demonstrated by the other spouse or, alternatively, can speak to behavior that may raise doubts as to the readiness of the other parent, in the court’s mind.

            Important points for witnesses in custody cases:

1. Go slow.  Know what you want to say before you say it and then say it clearly and simply.
2. Tell the truth.  Plan what you are going to say and ensure it comports with your memory of events. Don’t elaborate unless the memory and sequence of events are clearly recalled.
3. Mind your manners.  No matter what the opposing counsel tries, you must remain polite before the judge.
4. Repeat the question.  Simply ask the questioner to repeat the question if you are confused or need time to refresh your memory.
5. “I simply can’t remember.”  Don’t be afraid to say it. Far better to admit what you can’t remember than try to wing it and come up short under an intense cross examination.
6. If a questioner asks you to speak about a document, ask to see the document, then ask for the question to be repeated.
7. Be confident.  If you know and believe in your testimony, give your answer boldly and confidently.

            Courts routinely appoint guardian ad litem attorneys, who represent the best interests of any involved children, to wade through the complexity of tough custody cases.

            On the whole, guardian ad litem (“GALs”) attorneys perform a valuable service to the court—furnishing a report and opinion on the “behind the scenes” picture of the child’s life.

            Most GALs perform this function day in, day out with skill and professionalism.  They advocate for children who may be the victims of abuse or neglect and ensure that children receive assistance.  They often serve their communities for relatively little pay.

            In cases where abuse or neglect is not present or alleged, GALs also assist in outlining the background of each parent and his or her living situation and parenting style so the court can make a reasonable call.

            I have had personal experience with GALs in cases without neglect or abuse alleged, but simply two professionals in a minor tug of war.

            In my experience, a few GALs have an agenda or an axe to grind. A few GALs consider all men that come into their courts as guilty until proven innocent.  Other GALs view mothers as privileged complainers, and seem to think, “If I had a man half as good as the one you are so upset with, I would be delighted.”  Other GALs have no problem with recreational drug use in parents, because after all, “who doesn’t need a little high every now and then?” (With my clients, I have encountered all three of these types of GALs  this year alone).

            These GALs are usually disorganized, one-person shops. Their work telephones go into answering machines that are routinely full.  They do not have websites offering their background, education, or relevant work experience.  Their office locations will as likely as not be their home addresses. They do not have active caseloads of private clients.    

            They will smile and nod and seem professional enough in court, where they spend time in one, particular courthouse their entire careers and know the judges by their first names.  The judges will appreciate their service and will speak glowingly of them in open court.  In truth, their only demonstrable ability is to know where their preferred courthouse is located and when cases are heard that may net them additional referrals from judges.

            Meanwhile, for the families forced to deal with this type of GAL, all manner of problems are unleashed.  I will address only three here.

            First, and most importantly, delay is typical.  For example, a custody case without abuse or neglect is heard in court, with testimony given from both sides.  A temporary plan is needed to get the family on track.  The judge could rule and enter a custody and visitation order or temporary order on the spot, providing an enforceable framework in which to move forward.  Instead, for reasons that vary by court, the judge will ask the GAL to “work with the parties” and “develop a plan, together.”  In almost every instance in my personal experience, this delays the creation of an actual, temporary custody and visitation plan by, at minimum, eight months--if not longer.   This same judge will then set a final custody and visitation hearing to determine the final plan, presumably with the GAL’s input, for one year or more later from that original hearing date, citing a heavy court docket.  The GAL, if challenged on the delay, will offer up a litany of excuses that courts will readily accept. “After all, what can we do about it now, Counselor? We’re at the one-year-later-point, anyway…”

            Second, unfortunately, bias can be a problem.  Unlike a courtroom whose architecture and formality is designed to construct civility, objectivity, equal time, respect, and decision-making, the informal style of some GALs allows bias to surface.  Swelled with the confidence of court-directed temporary power, some GALs will come right out and say what they really think of you or the other parent, or both.  Any retort to this offensive language will be met with an implicit reminder of her or his role and the sway of his or her “report.”  This kind of bias eliminates whatever faith either parent had in the process, the proceedings, or the legal community at large. 

            Third, there is little accountability.  Because of the power of their mission—the best interest of the child—the representation and report of a GAL is difficult to challenge as the advocate of one particular party, whose motives and frame of reference are intensely scrutinized.   Because most court dockets are so busy, there isn’t enough time to adequately or critically evaluate how the GALs arrived at their “recommendations.” 

            In this situation, a system with inadequate or biased agents will oftentimes feel “broken” to the parent caught in the middle.

            If you are in this situation, the diplomacy and problem-solving skill of your attorney to focus or challenge the assumptions of your GAL will be critical.  Personal likeability and persistence of the legal team you choose can be critical to winning over a GAL. 

            If an experienced family law attorney is brought in at the earliest stage, he or she can at times help direct the court away from potential GALs who would be likely to cause problems for a case.

I hope that my readers never have to experience what I’ve described in this chapter.  At least two-thirds of the GALs I encounter—in other words, the great majority of them—are professional and competent.

A few tips in dealing with GALs:

1. Home Visits: 

1. GALs will often make at least one home visit.  Ensure that the home is tidy and clean. 
2. Treat a GAL like special company.  Make sure you offer him or her a glass of water or tea. 
3. Take time to make sure that the space where the child will sleep is neat and tidy.
4. Speak kindly of your “family” and respond to questions with the “best interests of the child” standard in mind.
5. If you speak of the other parent in a negative way, be specific and cite specific anecdotes to back up any allegation—be objective and methodical in reciting past issues.

2. Documents: 

1. Prepare a list of witnesses that will support your presentation to the GAL (review this presentation with your attorney prior to the home visit). 
2. Prepare a list of people that provide care to your child—doctors, teachers, daycare personnel, dentists, and coaches. 
3. Make a copy of your current and proposed visitation schedule. 
4. Provide the GAL with a diary of the child’s activities in an average month.

3. After the Report: 

1. Review the GAL report carefully with your attorney, noting any mistakes or omissions, as these points can be raised in court—or before, in some cases.

Finally, courts and judges use the following 10-factor test (based on Virginia Code section 20-124.3) when considering what presented custody or visitation plan is in the best interests of the child.  Our firm works with each client during a custody case to draft answers to each of these  ten factors, filing them with the court in advance.  This response forms the basis of our court preparation.  These  ten factors include:

1. The age and physical and mental condition of the child and the child’s developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship between each parent and the child, the parent’s positive involvement and ability to assess and meet the child’s needs;
4. The child’s needs, including important relationships, such as with brothers and sisters, grandparents, and other relatives;
5. The role which each parent has played and will play in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. Each parent’s willingness to support the child’s relationship with the other parent, his or her willingness and ability to maintain a close relationship with the child, and his or her ability to cooperate in matters affecting the child;
8. The child’s preference (if the child is 13 years of age or older, typically his or her opinion carries more weight with the court, though this is very fact dependent and should be carefully considered before proffering);
9. Any history of abuse; and
10. Any other factors the judge may feel necessary to consider.    

The right combination of answers to these questions varies with each family, but certain themes should emerge as you absorb these ten factors. 

It should be obvious that evidence of any foul play or disruption in one parent’s ability to assist in raising a child will be met with the harshest response from the court.  Past history or the parental role assumed during the marriage or before the custody battle began informs the court of the habit and custom of the parties—and what the child may have come to expect.

A child’s preference matters far less than most parents assume, unless allegations of abuse emerge as the underlying reason for this preference.