Temporary Custody Determinations - The Three Real Factors

Without fail, one of the most dramatic and stressful parts of the temporary orders process is the Court’s determination of an interim child custody plan. The parties have strong opinions (understandably so) and often desire to bring to Court a litany of every misdeed done by every party. Courts have a daunting job because within a very short period of time, they have to learn the parties, circumstances, and children well enough to make a good decision for them.

People come into my office with all kinds of strange ideas about how these determinations are made.

“The Mom always gets them.”

“The person with more money gets them.”

“The person who stays in the house gets them.”

Believe me when I tell you, those myths are just the shallow end of the pool. I have heard some really wild ones over the years, doubtless spawned from TV, movies, and legal advice from people know who went through their own divorces and may have gotten an incorrect or incomplete picture.

The real answer to how custody plans are decided is determined by one thing and one thing only: the best interest of the child. If you can make a compelling argument to the court, based on meaningful evidence, that your proposal is the best thing for your children, you are likely to be successful.

Of course, “best interest of the child” is a massive term that encompasses a lot of factors. Earlier in my practice, I used to give people the statutory factors and work through them (there are a lot of them). While that exercise still has its place, my explanation has evolved over the years into a three level hierarchy of factors, and they have been applicable in virtually every case I have ever litigated.

Those factors are:

1. Safety

2. Practicality

3. Consistency

In that precise order. I’ll try to explain each factor and hopefully you will get a sense of how courts assess these things.

Safety: The first factor any court looks for is credible threats to the children’s safety. If there is credible proof of domestic violence or one of the parents having a serious substance abuse issue, those things represent a real and on-going threat to the children. Courts will readily overlook the other factors in the hierarchy to make sure that the plan it approves ensures the children’s safety above all else. For example, if there is evidence of a primary care parent engaging in severe domestic violence, the court will ignore his/her traditional role and the benefit of consistency in favor of child safety, and will award custody to the “non-primary” parent.

In assessing your own case, you will have to ask yourself what threats exist to the children’s safety, how credible is the evidence of those threats, and what can be done to address them? For a court to allow this top factor to trump the other factors, it will need extremely credible, substantiated evidence (pictures, photos, drug tests, police reports, etc.) to be sure that the threat is real and needs to be addressed.

Where people often go astray here is potential parenting problems that really do not rise to the level of “safety threat.” For example, if you are a mother of young children and their father hasn’t had a lot of experience parenting on his own, it is entirely reasonable to be concerned about how good of a job he will do during his residential time. In all likelihood, our hypothetical mother would cringe as he struggled with things like addressing diaper rash or bringing all the needed supplies for a grocery store trip.

Those things are uncomfortable (and there is a theoretical danger there if hypothetical dad is that bad as a parent), but the risk is too remote, too speculative for the court to use the safety factor to ignore everything else.

Practicality: The next rung in the hierarchy is practicality. Putting aside the moral worth of the parents, parenting itself is a job. It require time, labor, and resources. The Court puts enormous weight into the practical aspects of who is best equipped to do the job. This is again best-illustrated with a hypothetical situation.

Let’s say we have a divorce where dad is a successful general contractor and mom is a stay-at-home parent who hasn’t been in the workforce for a decade. Both are excellent parents, and very involved in their children’s lives. Dad works 60+ hours a week and makes a good living. He’s an utterly dedicated parent on nights and weekends. Mom, by virtue of her at home status, handles the lion’s share of teacher and doctor appointments.

Dad wants to have 50/50 custody. His parenting credentials certainly do not disqualify him. He has a wonderful relationship with the kids and they adore him. The problem is that his hours simply do not allow him to be home like he would need to be, and if he substantially reduces them or changes his career, the family will lose enormous amounts of financial resources. Mom may (and ultimately will) have to get back in the workforce, but the Court is not going to deprive the family of sorely needed financial resources to make that happen.

This is a good illustration of where practicality controls.

As a result, after addressing any safety concerns, the next consideration in proposing a short term parenting plan is to ask “what resources are available to the parents to do the actual job of parenting?”

You have to realize that this is both a short-term and long-term question. Staying with our hypothetical contractor, short-term, he is probably looking at having the kids on the weekends and for mid-week visits. Long term, he will need to look at his career and ask if there’s a way he can make himself more available for parenting. Can he do things like work at home? Are there ways he can reduce his hours to have more time with the kids? Do the children have extended family members on his side (grandparents, etc.) who could help during his time?

Even though a parent might get less custodial time on a sort-term basis, the parent should work carefully with his lawyer to make a realistic assessment of how much increased time he might get in the future, and what things he should go about to do that.

Consistency: If there are no immediate threats and no practical issues which dictate a particular arrangement, then the next thing the Court looks at is consistency. There is an deep understanding in the law (memorialized in statutes more places than I can count) that custody litigation is rough on kids, and we all have to work together to make the impact to them as minimal as possible.

As a practical matter, this means keeping things similar to what they had been prior to the divorce unless safety or practicality dictate something substantially different. The idea is that these type of things (same day-to-day caregiver, same home and surroundings) will help ease the initial strain on the children as they find the new normal. In initial custody determinations, courts use consistency as a means to decide cases that might otherwise be “tied” in terms of two competing parenting plans.

In this sense, you will have to look carefully at the children’s routine to determine the consistency, and how healthy it is. For example, if there is a deeply ingrained routine, but the ingrained routine involves the children spending a lot of time in an unhealthy environment, you will need to think how to best portray that to the court to get them away from this part of the hierarchy.

The Things that Don’t Fit In - Determinations Outside of Initial Custody: More than one client has been presented with this hierarchy, and said that it doesn’t cover everything. Where clients really take issue with it is when there’s no safety or practicality reasons to deviate from the routine, but the routine involves the kids spending a lot of time with parents who have issues, like abusive use of conflict (involving the kids in litigation) or severe depression.

These things absolutely matter and they will factor into long-term custody determinations. The challenge is that it can be hard to meaningfully prove them within the first couple weeks of a case. If you can prove them, the Court will consider them, but in my experience courts are often resistant to factor these "fine details" into initial plans.

This is where I have to explain to clients that temporary custody determinations are exactly that – temporary. Typically, after the initial determination, the parties will engage in discovery to obtain more evidence. For example, a guardian ad litem may be appointed to investigate a depressed parent or someone who abuses conflict, and will report back to the court. Alternatively, the children might be placed in counselling at an initial hearing, and the counselling will operate to identify these issues and their harmful effects on the children. If a parent has been the subject of a prior CPS investigation, those records can be subpoenaed but may not show up for months.

When a court makes a temporary custody determination at the outset of a case, it is not unlike a MASH unit in the military. It is a rough field hospital primarily equipped to handle severe crisis. It rarely does nuance well, and you will have to go into initial custody litigation realizing some of these issues will require time, effort, and the development of additional evidence before the Court will take further action.

Importance of Dialogue: I realize I sound like a broken record, but I would again remind you that you and the other parent have an eighteen-year partnership in keeping a child alive. Communication will be key the entire time, including custody litigation. Before proceeding to court, your lawyer owes it to you to pick up the phone and talk to the other party (or their lawyer if represented) and discuss the issues in the case, to try and come up with some common ground about the parenting plan. If you can come to an agreement, it will save the parties a fortune in legal fees. Even if you do not come to a complete agreement, there may be some issues where you can find common ground, and narrow the scope of the issues the Court is deciding.

Even if the issues are simply narrowed, that has great value. The less issues a court is deciding, the more time an resources the Court (and the parties) will have to look at those issues and make thoughtful, reasoned decisions.

Conclusion: I do not exaggerate when I say that this one of the most gut-wrenching parts of custody litigation. It is hard in practicality, and it is hard in substance. You will be forced to take a long, hard look at what is best for your kids. You will have to look in the face of your own shortcomings as a parent. You will have to look hard at the other party’s shortcomings, too. You will have to get real about your family’s resources.

You will have find the courage to admit when what is best for your kids may be different than what is best for you.

A good lawyer will help you walk this path with a balance of compassion and realism. Hopefully you can use this tool to clarify your thoughts and work with them to help keep your kids as safe, healthy, and happy as possible.

As always, good luck.