Tuesday, February 21, 2012


Your Child Custody War
  Copyright © Jonathan D. Gordon, Esq. 2012

            How easy is it to “win” custody of your children?  Is there such a thing, is it even possible? And if so, at what emotional and financial cost?

The Basics:
First of all, there is a presumption of joint legal custody in a divorce or relationship breakup in which there are children, at least in New Jersey where I practice.  It is unusual for a parent to get sole custody which implies legal and residential.  We’ll discuss under what circumstances that can happen.  But some clarifications are in order:
Legal custody is different from residential custody.  Two parents can share joint legal custody with one parent being the primary parent of residence or PPR.   This is often the case when the working spouse does not have enough home time to be consistently available to the children, such as after school, clubs, car pooling, etc.  More often than not, the parent who does not have primary residential custody will enter into a visitation or parenting time arrangement that will give that parent a scheduled and regular schedule for spending time with the children.  Pickups and drop-offs of children take place, either at the door, curbside or at a neutral location in some cases when close proximity between the two parents is not desirable.  “Traditional” parenting time is often thought of as being every other weekend with a weekday dinner time, such as a Wednesday.  There are alternating holidays and a couple weeks vacation per year.  But every case has its own individual needs and there is nothing sacred about the alternating weekends. Some parents have more, or less parenting time with their children, depending on the circumstances as we will discuss.  Sometimes parenting time is shared equally or nearly so.  And sometimes parenting time is supervised, such as in the case of child abuse or spousal abuse.   To help a couple avoid litigation, the parents may go for parenting time mediation so that a neutral third party can help the parents construct a reasonable parenting plan that they might agree upon by consent.
Frequent Reasons Why Custody Warfare Breaks Out:
            Let’s first look at some dysfunctional reasons:  I would define this as being an emotionally unsound basis for a child custody conflict.  This can include—but is not limited to—motives for  warfare based on one parent’s personal needs that have little to do with what is good for the child.  I previously discussed a phenomenon that I labeled RNB:  Reactive Narcissistic Behavior is when a parent going through a marital or other breakup acts selfishly because they cannot see the entire picture.  They have lost their sense of reasonableness and fair play since they are acutely consumed with anger, and only see their actions from a very narrow perspective.  This is a (hopefully temporary) emotional tunnel vision that keeps a person from seeing the effects of their behavior and decisions on others, especially on the child.  Without repeating all of what I previously said about RNB in my previous blog (please read it when you can), suffice it to say that one or both parents can fail to make good decisions for themselves and for their child(ren) in the context of a custody conflict in Family Court.  A parent experiencing RNB, or both parents, often feel victimized, angry, self-righteous, paranoid and obsessive about their opponent.  If both parents were able to see what is truly in the child’s best interests, there would not be a custody war in most cases, because a custody war is a negative experience for a child, as well as for the parents (to say the least).  It is rarely a benefit for the child.  Also important to mention is the fact that often a parent will embark on a child custody war as an act of vengeance against the other parent.  In this case, it has nothing at all to do with the best interests of the child, but rather, it is about one parent “winning” against the other parent.  The child becomes a pawn in the parents’ quest to beat the other parent down out of revenge.  This is often masked in self righteous pronouncements about what is in the child’s best interests, but it really is not about that whatsoever in the kind of case I am describing.

It’s Not That Easy to “Win Custody”:
            When a vengeful parent says “I’m going to take the kids away from you”, it is merely a button-pushing maneuver or manipulation to hurt (freak out) the other parent, with certain exceptions mentioned below.  I have received numerous inquiries from prospective clients who were terrified of this happening (usually the mother).  It’s not that easy to obtain sole custody unless the other parent is a drug addict, active alcoholic, psychiatrically impaired (not under control with medication), has had episodes of child abuse, neglect, spousal abuse or has been “missing in action” for many months or years with no contact with the children.  Like I said in the beginning of this article, the presumption is one of joint legal custody when there are two fit parents.  What constitutes “fit”, however, is the important question and often is left to a judge to decide after assessments are conducted on the parties and on the children.  Let’s say that two parents, whether in a divorce or in a non-marital relationship breakup, show up in court with opposing applications for court assistance.  Both parents or one of the parents is asking the court to designate him/her as primary parent of residence (PPR), or sole custodian for the child(ren), or some other relief that would severely limit the other parent’s access to the child.  Some basic rules should be kept in mind:

            The Judge will not award custody on a simple motion unless it is an emergency such as (but not limited to) one parent being jailed, hospitalized, or precluded from contact with the child through a domestic violence restraining order (ie. order of protection), allegations of sexual or other physical abuse/neglect or though the State’s child protective services.  An emergency motion or application (for the court’s assistance) is called an “Order to Show Cause” in most places and enables a Judge to make quick decisions in an emergent situation.  Often these decisions are deemed to be temporary until the parties can get back into court once the situation at hand is stabilized for the time being.  The Court has to ensure the safety of the child and will err on the side of caution until more information can be gathered on what exactly is in the child’s best interests.

            There are very few things worse than one parent making false allegations of sexual abuse against the other parent (usually against the father).  Often, these allegations take on a life of their own, with the child being fed a steady diet of comments and questions.  These comments and questions (e.g. “Did Daddy ever touch you in your private area and made you feel bad?” or some variation of this).  We will talk another time about suggestibility and false memories of abuse in children.  This is not to imply that abuse does not occur.  But when it did not occur, and one parent leads a child to believe that maybe it did, that is destructive to the child. 

            In non-emergent situations, a Court application (ie. a motion or petition in some states) for a change in custody, or for sole custody, or for primary custody may be just the beginning.  The Judge usually does not know what is the proper course of action to take in the beginning (unless the Judge knows these parties from past dealings with them, knows the history, and this is just another chapter for them).  The Judge will hear two competing certifications from the parties, detailing how the other parent is negligent, uncaring, selfish, emotionally abusive or cold, gets the child to school late, etc., to name a few common allegations that tend to pop up.  Sometimes there are unsubstantiated allegations of physical abuse or neglect against the other parent.  The Judge usually has no idea what is accurate, what is real, what is not real.  So the Judge will have to enlist the assistance of professionals who specialize in doing what is called “forensic” (used for courtroom purposes) child custody evaluations before making any final decisions.  This forensic expert is usually a psychologist (Ph.D. or Psy.D.), but can also be a licensed clinical social worker (LCSW), a psychiatric nurse, or a psychiatrist (M.D.).  The parties will typically be ordered to submit themselves to this professional for a formal assessment.  For this assessment to be helpful to the court, it must involve both parents, all the children, anyone living in the house who plays a caretaker role (e.g. a grandparent who lives there and babysits), etc.  The evaluations can take many hours or days of sitting in the expert’s office, being interviewed, undergoing formal psychological testing, and being observed interacting with your child.  Finally, usually after two to three months in many cases, a voluminous report is produced giving the expert’s recommendations to the two opposing attorneys, eventually to be used in a trial if necessary.  In many cases, and this really does happen, one of the parties may not like the court-ordered results and may ask for their own (hired gun) evaluation with another professional.  The worst case scenario is when both parties insist on getting their own private evaluations and there are three in total. This can take four to six months to complete, and the cost is staggering.  Here’s why:

Some Financial Factors:
It is not unusual for a forensic child custody evaluation to cost anywhere from $5,000 to $7,500, and that does not count court time if that expert has to testify in a trial or depositions, or both.  If you have a joint expert, or a court-appointed expert, it is common for the parties to split the cost of that expert, sometimes 50-50 and sometimes in proportion to their relative incomes (e.g. 60-40% or 35-65%).  You pay for your own forensic expert that you hire privately, including the cost of courtroom testimony.  These experts typically charge from $250 to $350 per hour for courtroom time, and some require a minimum of three hours per day if they are going to testify.  Of course, their testimony can be 5 hours, but if they are going to cancel all of their appointments for a morning or afternoon to be available for your trial, they may want you to pay for that entire morning or afternoon.   You will likely have to pay your expert a retainer, such as perhaps 75% of their fee, up front.  The report will not be released until the entire fee is paid.  If you paid half of the joint or court-appointed expert’s fee (let’s say half of $5,000) plus the entire fee for your own expert, you could be on the hook for at least $7,500 or more for the two evaluations.

More costs:  Your attorney’s fees will be astronomical for a child custody trial.  This is the most expensive thing that a family law attorney does.  This is because there are experts, expert reports to review, depositions of the experts, trial preparation, research, and many days in Court to conduct your trial.  A deposition is when lawyers obtain testimony in a less formal setting than a courtroom, such as an attorney’s office.  The proceedings are recorded by a court stenographer and your testimony or the expert’s testimony is transcribed and provided to the parties with a written transcript.  The testimony can be used at trial and will give the attorneys a better understanding of how this witness will testify at trial.  A one day deposition can cost anywhere from $1,000 to $3,500 or more.  You pay your attorney for the hours it takes for your attorney conducting the deposition of your opponent’s expert.  You also pay for the stenographer and the transcript.   You pay your expert and your attorney if the opposing attorney is conducting the deposition because your attorney has to be there too.  It is not unusual for a child custody trial, from beginning (evaluations and all) to end, to cost anywhere from $20,000 to $75,000 or even double that, depending on the circumstances.   Sometimes in a case where—for example—one of the parents is a stay-at-home dad or mom, and the other parent is the primary or sole wage-earner, the Court could establish a “litigation fund” from home equity or other money (e.g. savings, etc.) to “level the playing field” between the parties in the litigation.  The Court could order the release of $25,000 or even $30,000 or more to the attorneys, to guarantee their fees get paid.  You should know all of this going in, before you embark on an expensive venture that will bankrupt you or use up all of your marital or other funds. 

Reactive Narcissistic Behavior (RNB) can motivate a parent to spend all of their life’s savings on lawyers to fight with their estranged spouse over the children.  The outcome is dubious and the collateral damage can be staggering: 

The Emotional Costs:
            As you can see from the process described above, your children may be required to spend many hours being interviewed or tested by a forensic child custody expert, or more than one expert.  Depending on the age of the child, this can be more or less stressful, but it is always stressful.  In many states, depending on the age of the child, the judge will interview the child (often in his/her office or chambers) to get a better feel of the child’s best interests. In New Jersey, the attorneys are usually invited to submit suggested questions to the Judge as a guide.  Often a transcript of the interview is produced for both sides to read. And the parents get to see what their child said about them to the Judge. Not pleasant for anyone.  And many parents will choose not to read that transcript because it will be too painful to read.

The Judge will be especially interested in finding out from the child if they were coached, coerced or bribed to express a certain opinion to the court.  The Judge will want to know if the child has seen the litigation papers, what mom or dad says to them about the other parent, or what other family members such as grandparents say in front of the child.  Sometimes when the child is at one parent’s residence, that parent and the grandparents and sometimes other extended family conduct a bashing of the other parent within earshot of the child, if not in front of the child.   The Judge wants to know all of this and will act against a parent who is behaving inappropriately by needlessly exposing that child to the details of the litigation.  The child feels either stressed out,  violated or validated, depending on the circumstances and depending on if the child actually wanted to express his/her opinions to the Judge.

In many cases, the children are locked in a loyalty conflict between both parents who are loved by the children.  A child who knows full well that one parent despises the other parent is made to feel like it is not ok to show affection toward the despised parent:  It is not ok to enjoy their time with that parent, it is not ok to bring home presents the other parent bought for the child, it is not ok to call the other parent on the phone to have a conversation in private about anything, and on and on.  So the child has to inhibit their feelings, hide how they feel, act constricted with the despised parent so as not to show affection toward that parent (for example at a school event, etc.), and on and on.
I will talk more about some of these issues in the future.  Suffice it to say, that a custody battle should be well thought out before it is begun. Carefully consider the emotional costs, financial costs and potential outcomes.  A cost-benefit analysis should be conducted, to weigh the costs against the potential benefits of custody litigation.  Of course, you might not have much choice if your estranged spouse or former partner fires the first legal shot into your court.  When there is a disparity in financial ability, the parent with the money has an advantage because that person can afford to litigate, sometimes indefinitely.  More about this later.

Jonathan D. Gordon, Esq.

    Please note, this blog is for general information purposes only.  It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.
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  1. We desperately need some programs in the court systems to educate parents on how destructive their custody wars are to the children for the rest of their lives and how to minimize the damage.

    Boyd Lemon-Author of Digging Deep: A Writer Uncovers His Marriages.
    Excerpts, reviews and information,

    1. Thanks for the comment! I couldn't agree more. Unfortunately because attorneys are inherently advocates for their client's position, the flames can be fanned quite easily. Maybe if the courts imposed a mandatory cooling off period, or mandatory mediation, etc., before going into full blown litigation, perhaps some parents might be enlightened before it's too late.