Many attorneys and parents who have been through child custody and parent time disputes before will give you some basic and sound advice; specifically, 1) ensure that your arguments have legal merit, are reasonable, and feasible; 2) have the evidence to back your arguments; and 3) think like an equitable and impartial judge in making your arguments. Try to be as objective as you can in assessing the strengths and weaknesses of your arguments. If you know your arguments are weak, then it is likely that the court will also see your arguments as weak. Too many people come to court hoping to see what sticks to the wall.
That stated, not every judge is rational, reasonable, analytical, knowledgeable of the law, and impartial. As an attorney, I have experienced far too many arguments where it is clear that the law and the facts are not dictating the judge’s decision, but the judges own subjective viewpoints, biases, even a personal dislike of one of the parents.
If you have a biased or prejudiced judge, you typically do not have enough evidence to prove that at a level that would entitle you to having that judge recused and replaced. This means that you will need not only to have the law and the facts on your side, but you will also need to figure out a way to overcome that judge’s biases and dislike for you and/or your attorney, your gender, your age, your race, ethnic origin, sexuality, religion, education, job, etc.
This is why recently I have asked myself what the underpinnings of child custody and parent time law are. One thing I know, after 27 years in practice, is that judges overestimate their abilities to predict the future and thus overestimate their abilities to plan for it. I see far too many cases in which we have two loving, fit parents who both want to be as engaged and involved in their children’s upbringing and who live close enough to one another that the children can spend equal time in the care and custody of both parents without having to travel too often or too far or otherwise be unduly burdened by an equal physical custody schedule, yet the court will award primary or sole custody (and please understand that in the jurisdiction where I practice law (Utah), “sole custody” does not mean that the non-custodial parent has no contact with the children whatsoever, it simply means that the non-custodial parent has less than 111 overnights with the children annually) to one parent, typically the mother. The reasons the courts will give for this are contrived, as I see them.
You’ll see judges claim that because the mother nursed the children and took care of them primarily when they were infants, the children are better “more closely bonded” to the mother and thus better off in her primary custody, even if they are 14 years old or older now and even though the children themselves will claim that they love both of their parents and do not find either parent to be a danger to them. You will see judges claim that the mother was a stay-at-home parent, even though now she is working part or full time, and on that basis “find” that her former stay at home status makes her the better parent, and or makes equal physical custody a poor prospect.
In the United States of America, we recognize that freedom from unnecessary government control and the liberty to do as we choose (so long as the exercise of our own liberty does not infringe the liberty of our fellow citizens) means that some of us are going to make better choices than others in the use of our freedom and liberty. That does not mean, however, that we strip citizens of their freedom and liberty. Two of the bedrock, fundamental, God-given freedoms and liberties is parental rights, the freedom and the liberty to have children without government interference, and to rear children as parents see fit. Government does not intervene in or infringe upon parental rights unless the exercise of those rights violates the rights of the children to life, to their own liberty, and the pursuit of their own happiness. Too often, far too often, courts indulge the fantasy that they can do a better job of making parental decisions than the children’s own parents. That children are somehow better off spending more time in the care and custody of one loving, fit parent then in the joint custody of two loving, fit parents. You have heard this in the context of taxation and nanny state legislation, but it holds true in the context of child custody and parent time law as well: the government rarely does a better job of making child rearing decisions than fit and loving parents can. When there are two fit and loving parents who both want to exercise custody of their children (and most importantly, who are mature enough and honest enough to acknowledge that their children deserve to be reared by both fit and loving parents), and if these two fit and loving parents live close enough to each other that equal custody does not deprive the children of access to the same friends, family members, and activities, denying children an equal physical custody and parent time award is contrary to the children’s best interest on its face.
Courts are suckers for claims of spousal and/or child abuse. One of the main reasons for this is because many judges would rather err on the side of caution (even though it is clear error) than take the chance that the unfounded allegations of child abuse made against the other parent may be true. Women are generally perceived as more gentle and less violent than men, and so if there is any concern about child abuse, many judges see the smart money as being on awarding primary or even sole custody of the children to Mom. Accuse your spouse, especially if he is a man, of spousal abuse, child abuse, or both, and that typically puts that parent at an insurmountable disadvantage in the context of the child custody and parent time awards decision.
It is unfortunate that a loving, fit parent must agonize so much over how to present an argument for an equal custody and parent time award if and when the other parent is opposed to out of selfishness or even malice. But we all know a parent who found himself or herself in precisely that situation. In most cases, you really only get one shot at making your case for the child custody and parent time awards (don’t be fooled into believing that temporary orders are, in fact, temporary; rarely will a court modify its temporary orders when making the final orders at trial) So it’s hard to expend too much time, effort, and money on making sure make it count.
Utah Family Law, LC | divorceutah.com | 801-466-9277
