By Jennifer Paine
It was like something out of a movie. She snuck out of the house in the wee hours of the morning, no coat and no shoes, children’s Christmas presents stashed in a gym bag, tiptoeing and teetering between open spots on the lawn to avoid making footprints in the snow – to barter the gifts for her weekly cocaine fix. She was my client. Some lawyers will tell you good lawyers never ask witnesses questions unless they already know the answer, but those lawyers (a) have never been in court with difficult witnesses and/or (b) have never had a client like mine. She told me her husband pawned the presents to buy his girlfriend a bracelet. To my shock, pressured with the penalties of perjury and the presence of an elderly judge peering at her through wide-rimmed glasses (I wonder which was worse), in the witness box she tearfully confessed that she swapped the presents for drugs. The children would have no Christmas – and my client would have no holiday parenting time. Needless to say, we lost our motion to modify custody.
It is natural for parenting time problems to escalate during the holidays. With all the hustle and bustle of shopping, parties, trips to Grandma’s house, and so forth, things are bound to go awry. Schedules get shifted. Messages to notify your ex that you will be late picking up your children get missed. And we all get a little greedier with our time – what parent wouldn’t rather have his children spend those special days with him than with his ex? The problem is, those with custody cases must let their greed gave way to judges’ orders, and that can be difficult.
Just what are you to do, and what are you not to do?
First, obviously, do not swap presents for drugs like my client, lest you want to face a criminal case in tandem with your custody case. Second, focus on the overall goal in any custody case – to maximize your time with your children within the parameters of your order, the status of your case and the law. The holidays are just a snippet of your time, albeit an important snippet, and despite the stress you can navigate your problems to maximize your chances for winning your case. The goal here is to look like a Santa, not a Scrooge. Implicitly and explicitly, the law in most states says so.
The Law Says, “Don’t be a Scrooge”
In most states, “custody” means two things – legal custody and physical custody. Legal custody is the right to make your children’s important life decisions, such as educational and medical decisions. Physical custody, the most disputed, is the right to actual possession and time with your children. In Michigan, where I practice, the Child Custody Act requires family courts to presume that each child deserves an equal relationship with both parents, which includes equal time with each parent to cultivate that relationship. However, the court must try to maintain each child’s established custodial environment. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If an established custodial environment exists, then the party seeking an order modification must persuade the family court by clear, convincing evidence that modifying it (if the order would) is in the child’s best interests. Otherwise, the preponderance of the evidence burden applies. The same standards generally apply across the country.
Enter that oft-used term “child’s best interests.” This may seem like a nebulous concept devoid of any concrete meaning, and if you have a cranky, old-school judge who makes decisions based on preconceived notions it might be. To you, I strongly suggest consulting a lawyer in your state about the merits of an appeal. Most states define the term by statute. The statute in Michigan, for example, requires the family court to consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
Is there a Scrooge factor? Yes, there is. In Michigan, it is factor (j). Family lawyers call it by various names — “the friendly parent factor” or “the cooperation factor” or “the willingness factor,” and so forth, depending on the state. When parents are about equal in all other respects, this factor is the case-ender. The trend is, the friendlier the parent, the better the outcome. In other words, Santas get more time, Scrooges less.
Mr. Waugh from Connecticut learned this lesson too late. The contentious issue in his divorce case, Waugh v. Waugh, 2003 Conn. Super. LEXIS 1028 (Super. Ct. April 17, 2003), was custody for his 4-year-old son. The evidence at trial demonstrated that shared physical custody could not succeed. Every witness gave examples of his and his wife’s confrontations with each other, both in and out of their son’s presence. They glared at each other. They ridiculed each other. They yelled at each other. They could not stand to be near each other. To support his request for primary physical custody, Mr. Waugh argued the family court should hold his wife in contempt for bringing his son to Christmas parenting time three hours tardy. The family court did hold her in contempt – but that barely made a dent in the case. She was the proactive parent — she visited at daycare, arranged doctors’ appointments, refrained from hanging up her telephone in a heated dispute with Mr. Waugh, and, overall, made a real effort to allay her anger for the little boy’s sake. Therefore, she was the better parent for primary physical custody.
Mr. Waugh’s story is not to say holiday parenting time is irrelevant. It is relevant, but in context. I tell my clients to be like Santa –an expected part of the holiday agenda, but generous, too. You can insist on your holiday parenting time, but you must not let those few days overshadow your overall appearance in court. Try the following:
- Plan ahead. Plan your holiday trips, transportation, events, and so forth, well enough in advance that everyone will know what you intend to do when. For those of you living in snowy states like Michigan, that means planning alternate routes to pick up your children, just in case the snow reeks havoc on holiday travel, too. If your holiday time is “liberal” or “to be arranged between the parties,” give at least two weeks notice in writing if you intend to exercise parenting time on a special day, unless your current order states otherwise. Always confirm schedule changes at least two days before your new time is to begin. Avoid last-minute changes.
- Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your children can be reached in the event of a last-minute schedule change. Keep a journal to document your concerns – Were your children late? Were they hungry? Did they have their coats and mittens? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory if holiday parenting time does become an issue in your case. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.
- Research your resources. Research the resources in your area for parenting time and custody enforcement. Parents are often surprised to learn that many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators exist. These resources are often less costly and more efficient. In Michigan, for example, parents who have missed visitation with their children may file a written complaint with the friend of the court, an agency-like body under the family court’s direction, to request make up time within 56 days of the missed visit. These resources are less intimidating and usually do not strain the parent-child-other parent relationship as much as a full-blown custody battle before a judge does. You should consult with a lawyer in your state to learn about the resources available to you.
If all else fails, you may have to relent, ease the schedule, let a mix up at holiday time slide, if doing so means you will be the friendlier parent. Remember, the holiday time is about family and should be fun for your children. Do not be a greedy Scrooge bent on counting your hours, demanding prompt adherence to every T in your current custody order, out to destroy your children’s mother. Play Santa, and you very well may enjoy more time with your children.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.