Children Aren't Possessions To Be Divided

Posted By Mark Baer || 19-Jan-2018

I recently read the following post on Facebook:

“Desperate for advice: My current custody arrangement is 50/50. Her dad has her Mon-Wed and every other Sunday. He went to see a lawyer about taking her away from me on Thursday and Fridays because I work nights, but she is taken care of so I am not sure what to do. It’s a really good job, so changing that is not an option. I shouldn’t be punished for working.”

Over the years, I have handled many cases in which parents fought over custody because one or both of them were “hour counting.” By that, I mean that they insisted on a specific time share arrangement because it was what they wanted for any number of reasons, none of which had to do with what was in their children’s best interest. Furthermore, they refused to adjust the parenting schedule to reflect their actual availability because it was “their time.” I have never seen such cases end well with regard to the “hour counting” parent’s relationship with their children.

Allow me to share just one example of how such “hour counting” plays out. In this particular case, the father’s work schedule changed such that he would not return from work until a couple of hours after his custodial time commenced. Rather than voluntarily revisiting the parenting plan and timeshare schedule to reflect his availability, the father insisted that the children be at his home at the scheduled time. He insisted that their 16 year old son supervise his 12 year old sister at his home from the commencement of “his time” and until he returned from work. The children’s mother lived nearby and was available to care for the children during that time. However, the father refused to “give” the mother any of “his time.”

As you might imagine, their son could think of many things he’d rather do during that time other than supervising his younger sister in his father’s empty house. Meanwhile, their daughter would have preferred spending that time with her mother than with her resentful brother, listening to him complain.

I was later retained to represent the father because their children refused to spend time with him, their mother wasn’t forcing them to, and he believed the mother had alienated them from him. As part of the litigation, a custody evaluation, at a cost of tens of thousands of dollars, was ordered.

The evaluator found that the father was solely responsible for the parental alienation. And, it wasn’t just caused by his “hour counting.” He also constantly told the children that he couldn’t participate in activities with them that they enjoyed because he couldn’t afford it as a result of the child and spousal support he paid to their mother. Also, while in his custody, their children watched movies and television programs and were served foods that he liked. He showed no concern about their children’s interests, desires, and tastes. Moreover, most of the activities and foods their children liked wouldn’t cost him any more money. In fact, they enjoyed spending time at the nearby park.

The custody evaluator provided a list of foods and activities that their children enjoyed and recommended he consult the children and add to the list. She opined that he could improve his relationship with their children if he began seeing things from their perspective.

Although he “lost” the court case, I told him that he’d actually “won” in that he learned the cause of the relational breakdown and how he could improve the situation.

Sadly, a couple of years later, the mother’s attorney contacted me, requesting that the father agree to give the mother sole custody on their daughter, who wanted nothing to do with him. To my dismay, the father failed to change his ways following the “wake-up call” he had received. He agreed to the request.

Several years later, he contacted me after learning that his ex-wife had passed away. He wanted my advice as to whether he should reach out to his children and, if so, how best to approach it.

Parental alienation is a serious issue. However, what parents don’t realize is that the alleged “target” of the alienation is often the cause.

Children aren’t possessions to be divided merely because their parents want an equal timeshare. As recently as December 2017, a family law attorney asked about a “2-2-5-5 possession schedule” on a family law listserv. While I was distressed seeing a family law attorney refer to children as possessions, I opted not to comment because I’m tired of being attacked by my colleagues. Instead, I followed the exchange and posted the following on my personal Facebook page:

“Family law attorneys have been discussing parenting schedules and referring to them as ‘possession schedules’ on a family law listserv. Based upon everything I know, I guess the terminology works because it reflects exactly how kids often feel -- like possessions.”

There were sixteen comments on the listserv post until almost 24 hours later, when one of the members said the following:

“I'm enjoying this dialogue, but I propose that we call it ‘parenting’, not ‘possession’ of the children, going forward. I could explain why, but I hope it's not necessary.”

Prior to that statement, thirteen attorneys had participated in the exchange. Because of societal gender bias, I’m going to share the genders of those involved. The post was initiated by a female attorney. Before a male attorney made the above-comment, seven female attorneys and six male attorneys engaged in the discussion.

According to social science researcher Brene’ Brown, “Throughout the country and regardless of type of school, middle and high school students talk openly about the heartache of not feeling a sense of belonging at home.”

Might this reality have something to do with parents and the legal community treating them as possessions, irrespective whether parents are in an intact relationship and who pays lip service to the “best interest of child” standard in the event they aren’t?