“This is the judgment day for your children. It’s not about you.”

Every child custody/access litigant should read these words, from South Carolina family court judge Paul W. Garfinkel:

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other peoples’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.


I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.

When Scientologists divorce

ABC News looks at…wait a minute…Tom Cruise and Katie Holmes are getting divorced?  Why isn’t this getting more media attention?!? 

The divorce of Tom Cruise and Katie Holmes, both bold-faced names and members of the Church of Scientology, shines a light on one aspect of their religion.

For many of the world’s religions, the rituals surrounding divorce are as structured as those governing marriage. Jews seeking a divorce must sign a ritual contract. Mormons married in the temple must undergo a “sealing cancellation.” In some Muslim sects, witnesses must be present for a divorce, and in others a husband recites a formula of denunciation three times to end a marriage.

The Church of Scientology, however, is much clearer on the rituals and practices of marriage than it is on divorce, according to experts and the church’s own official website.

Rather than focus on divorce, the church concentrates on improving couples’ relationships through therapy.

“Church members believe that tension in a marriage comes from ‘overts’ and ‘withholds,’ unstated, undiscussed issues or problems,” said Stephen Kent, a religion professor at the University of Alberta.

“Communication is therefore a good way to rebuild a marriage that’s crumbling. Couples can take a course called How to ‘Improve Your Marriage’ and in dire situations auditors, or counselors, can lead couples through exercises,” he said.

“There’s no real annulment in the church. Many members have been divorced, even founder L. Ron Hubbard was married three times,” Kent said.

The church does not allow members to have contact with disconnected, or excommunicated members of the faith, making divorce inevitable sometimes when one spouse wants to continue in the faith and another wants to leave the church, according to Kent.

“If one person wants to stay in church, he can’t have contact with someone who holds doubts or criticism of the group. The doubter is called a PTS, potential trouble source.”

Holmes reportedly left the marriage – and now seeks sole custody – over fears that Cruise wanted to enroll their six-year-old daughter in the infamous Sea Organization, and now believes Scientology goons are following her around.  This is completely plauisble:

“Tennessee Mother Faces Possible Jail Time For Baptizing Children,” reads the headline for this story from Charlotte’s CBS affiliate.  The real issue is not baptism, however, but flagrantly breaching a court order:

This week the Tennessee Court of Appeals said Lauren Jarrell must face a criminal contempt hearing for violating a court order that said major decisions regarding the religious upbringing of her two children should be made jointly with her-ex-husband.

The mother and her ex-husband, Blake Jarrell, are both Christian — he’s a Methodist and she’s a Presbyterian.

Court records say the father thought the children should be baptized once they are older. He has asked that his ex-wife be found in criminal contempt for baptizing the children without his knowledge or permission.

Skype access ordered

This is the first time I’ve heard about a judge specifically ordering this, but I doubt it will be the last:

A New York judge has ordered that a Long Island mother make her two children available to talk to their father via Skype, an online video conferencing service, as a condition of her move to Florida.

This is the first time such a condition has been made on a case in New York, the New York Law Journalreports. But last year, the New York Times reported that a number of states have begun allowing for “virtual visitation,” giving judges the option to keep non-custodial parents in contact with their children via e-mail, instant messaging and Web cams.

In the New York case, Suffolk County Supreme Court Justice Jerry Garguilo, in Baker v. Baker, ordered that the mother, at her own expense, “will see to it, prior to re-location, that the Respondent, as well as the children, are provided the appropriate internet access via a Skype device which allows a real time broadcast of communications between the Respondent and his children.”

Via Russell Alexander.  A serious question: now that webcam access is available to anyone with a decent internet connection, might this tip the scales toward allowing parents to relocate with children?

Every Father’s Nightmare

Two B.C. fathers were awarded sole custody of their children in Canada – but the mothers abducted the kids and took them to Europe, and they’re getting away with it:

Two Canadian fathers whose children were allegedly abducted by their mothers and taken to European countries say authorities have done little to try to enforce court orders and bring them back.

“I’m holding my hands up going, ‘Can somebody please do something about this?'” said Calum Hughes, whose five-year-old daughter Livia was allegedly abducted by her mother from B.C. and taken to Italy in 2009.

The latest RCMP figures show there were 237 reports of parental abduction in Canada in 2009 and 41 per cent of the children were under the age of five.

More than half the cases were resolved or withdrawn within a day. RCMP spokesperson Julie Gagnon said she didn’t know how many of the remaining children were taken to other countries.

She said when there is a warrant, as in the Hughes case, the RCMP can ask Interpol to put a “red notice” in the system, so the alleged abductor could be arrested at any border crossing.

She said, depending on the country and the case, extradition can also be initiated.

However, Hughes said he heard nothing from the RCMP after a charge was laid against his ex-wife two years ago.

Both fathers made Hague applications. Italy refused to send Livia home, though, because the court believed his Italian ex-wife’s assertion that Hughes was an unfit father, allegations that were rejected by a Canadian court.

“That’s all needless details and garbage,” said Hughes. “I’ve spent over a hundred thousand dollars and how many hours in court. I’ve ended up with nothing in terms of a relationship with my daughter. ”

Mezo’s application is stalled in the Hungarian court system, which has sympathized with the Hungarian-born mother of his son.

“The Hungarian court said that ‘well there is no warrant out for her. She didn’t do anything wrong in Canada. So therefore we take it all with a grain of salt whatever the judge ordered in Canada,'” said Mezo.

If you have reason to believe the other parent is planning to flee the province with your child, get a lawyer to make an emergency application for an non-removal order.  Once they’re in another jurisdiction, the process instantly becomes more time-consuming, complicated, expensive and emotionally exhausting.

If children set the rules for divorce

A must-read list by Kara Bishop at the Huffington Post:

In week six of Children of Divorce and Changing Families’ 8-week program, we do an exercise where we ask each child in the 10-12 year old group to create a set of rules that they wish their parents would follow to ease post divorce stresses.
The rules they write privately are then shared with the class, the goal of which is to create a list to present to the parent’s group. Rules that start out specific to each child merge with other similar requests. The kids tweak the wording for these and other parallel rules until “stop saying mom is stupid” and “don’t tell me my dad abandoned us” gets written down on a large strip of paper as the all encompassing: “Don’t say bad things about my other parent”.
The top ten rules listed below were the most commonly wished for, compiled from the many times I’ve conducted this exercise (3 times a year for the last 5 years).
1. Don’t Say Bad Things About My Other Parent
This rule comes up every time we’ve done the exercise and almost always in the top five. It also seeps into many other exercises, from one where kids express their feelings artistically on postcards…to one where kids role play an advice-giving radio talk show. They really want to know how to stop the “bad-mouthing,” especially those kids who have actually asked their parents to stop only to be told “you need to know what kind of person your ____is” or, “it’s not bad-mouthing if it’s true.”
The kids want you to know that they “don’t care if it’s true;” they just “want it to stop” because “hearing bad things about someone I love hurts my heart”.
The above rule is so pervasive that even after isolating it, it haunts our next rule:
2. Keep Us Out Of Adult Stuff
Bad mouthing the parent doesn’t have to be an outright proclamation. It can be the subtle or not so subtle release of information beyond the child’s years of comprehension and/or need to know. There is no educational or emotional value in telling a child, “there will be no ____ because your other parent is behind on child support,” or “your ____ left us because they’re boinking a co-worker”.
3. Don’t Make Me Feel Bad For Loving The Other Parent
At 11, Aaron (the inspiration for my work in this area), was the only child of three still willing to endure his mothers wrath in order to continue seeing his dad. He braved being called “stupid just like your dad,” constant questioning — “why do you want to be with the person who broke up our family?” — and having his bags packed by the front door after being told, “if you like him so much, just go live with him.”
By 14 he had given in, but only after the entire other side of the family sat him down and told him he was being a “traitor to his real family” for continuing to see his dad against his moms wishes and that he had to choose “us or him.”
What I really want parents to understand is that while they may think their actions are only punishing their ex, they are also (and often even more so) punishing their child.
I’m pretty sure every parent reading this can imagine how sad and deprived their child would be without their special love. Can being deprived of the other parents’ love be any less sad? With that knowledge, would you still do something that makes your child any degree of sad, just to punish your ex?

How to ensure you don’t get custody of your children

Lawyer Jacqueline Harounian makes a list at the Huffington Post.  If the children are older it might be too late to make up for not being the primary caregiver, but her instructions should be followed to the letter:

1. Not being the primary caretaker: In most households, one parent is most responsible for caring for the children’s basic needs — the so called primary caretaker. The parent who is the most involved in the children’s daily lives usually has the edge in a custody case. Therefore, if you are not putting in the time to do homework with your child, feeding, bathing, reading, taking him or her to the bus stop, you are at a disadvantage in a custody case. There is no better way to lose custody than to demonstrate to a judge that you are simply not involved in raising your child.

2. Not being active in your child’s schedule and activities: Do you know the names of your child’s teachers? Have you ever supervised your child on a play date or taken your child to the doctor? Do you regularly attend school conferences and school events? If the answer to these is no, then it is an indication that someone else (i.e. the other parent) is the primary caretaker, not you.


4. Leaving a paper trail that will hang you in court: Thanks to new technology, virtually every custody trial features the submission of evidence that can be used to portray the other parent in a very damaging light. Sometimes the evidence can make or break the custody case. The evidence can include text messages, photos and negative emails. Also potentially harmful are video and voice mail recordings (a la Alec Baldwin). If you are prone to sending impulsive emails and texts, ranting and raving at the other parent, third parties, or your own child, you are at risk of losing custody.


7. Failing to follow your attorney’s advice: Going through a divorce and/or custody proceeding is one of the most stressful experiences there is. Whether you are seeking primary custody of your children, joint decision making, or a customized parenting plan, your goal should be to survive the process while protecting your rights to your most valuable asset — your children. It is critical that you seek out the advice of an experienced family law attorney, who has handled contested custody trials (not the attorney who did the closing on your house, or the lawyer who charges the lowest retainer to do an uncontested divorce.) With an experienced advocate by your side, you can avoid making the mistakes outlined above, and you can be successful in your custody case.

When parents abduct children

Kirk Makin of The Globe and Mail notes that people who abduct their own children, for the purpose of denying access to the other parent, face relatively few consequences:

The abduction of children by one of their parents is one of the few offences to combine grave consequences for victims with lenient treatment for offenders.

In some cases, parental abductors emerge from hiding when their child is fully grown, give themselves up and walk away with minimal, if any, jail time.

Some in the family law community worry that lenient treatment of parental abductors makes a mockery of judicial custody orders as well as the suffering of a parent whose child has been stolen away for months or years. Nor, do the penalties reflect a loss the child may not even realize she has suffered, said Phil Epstein, a veteran family lawyer.

“Criminal penalties have been dramatically light,” Mr. Epstein said. “The family law bar would generally say that the sentences do not reflect the gravity of the offence and the rupture that deprives the child of a healthy relationship with one parent.”


Joseph Di Luca, a Toronto criminal lawyer, said an abductor can create a reasonable doubt about whether she was genuinely abused. Allegations of abuse are easy to make and difficult to disprove, he said. “It’s a real challenge to go back years later and sort this out,” Mr. Di Luca said. “Courts have to be cognizant of the dangers of relying on allegations of abuse in those circumstances.”

Another unusual aspect of parental abduction cases is that a parent deprived of a child may fear alienating the child even more by demanding harsh treatment for the other parent. Sometimes, the deprived parent even tries to win his way into the child’s heart by asking that the abductor not be punished at all.

An Ontario judge familiar with the offence said it is very difficult to discern motives and gauge the damage done to an abducted child. “A judge has to be prepared, where necessary, to impose a sentence despite what the child says,” said the judge, speaking on condition of anonymity. “But imposing a sentence when the abducted child is weeping in your presence is not an easy thing to do.”

The judge said that trial judges have their hands tied by precedent. If they depart from established sentencing ranges, they risk being overturned on appeal. If a judge hopes to make a harsh sentence stick, the judge said, it is best to link it to the contempt that parental abductors show for court-issued custody orders.

Update: in Britain, the Lord Chief Justice is calling for stricter sentences for parents who abduct their children.

“Surviving the Holidays After Divorce”

Marybeth Sampsel, a family lawyer in Kalispell, Montana, posted some excellent suggestions for getting through Christmas.  A sample:

Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.

Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.

Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.

The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.

Good advice for the rest of the year, too.

Obesity and custody

When determining the best interests of a child, the number of factors to be considered is almost limitless.  And with childhood obesity the health scare of the moment, this doesn’t surprise me:

The nation’s waistline is expanding, and so too is the role of obesity in child-custody battles in the U.S.

Family-law practitioners and legal experts say mothers and fathers in custody lawsuits are increasingly hurling accusations at each other about the nutrition and obesity of their children, largely in attempts to persuade judges that their kids are getting less-than-optimal care in the hands of ex- and soon-to-be-ex-spouses.

The evidence used to support the allegations varies. In some cases, it’s a grossly overweight child. In others, it’s evidence that soft drinks and potato chips make up a disproportionate part of a child’s diet. In still others, it’s that the other parent is too obese to perform basic child-rearing functions.

“It’s come up quite a bit in the last couple of years,” said Douglas Gardner, a family-law practitioner in Tempe, Ariz. “Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease—or saying that the child is miserable because he’s getting made fun of at school.”

For judges in many states, the question of custody turns largely on one question: What is in the best interest of the child? Some states such as Pennsylvania recently altered their definition so that the criteria now clearly include the physical as well as the emotional well-being of the child.

I’m aware of one Nova Scotia case in which the child’s weight was a factor: Gillespie v. Patterson, 2007 NSSC 368.   Among the reasons custody was awarded to the father, the Honourable Justice Scaravelli noted that the mother “effectively sabotaged” their daughter’s obesity treatment plan.