Time Matters: When to File Custody Cases

Time is one of the most critical aspects in a custody case.

In reality, dysfunctional and outright dangerous dynamics between parents can exists for years before one of the parents legally does something about it. Despite the normality of this situation, courts typically place great emphasis on when people take action.

Here is an illustration: let's say I represent Mom in a custody case. The parties have a young child together - let's save five years old. They've been separated for approximately two months. Mom is concerned about Dad's drinking - both generally and during Dad's custodial time. By the parties' informal "handshake" agreement, Dad has been getting the child every other weekend.

Mom comes into my office and explains the situation. I recommend to her that we need to file a custody motion ASAP to limit Dad's time until there are some safeguards to ensure his sobriety. This is especially true given the very young age of the child and the child's inability to recognize Dad's impairment or the danger it represents.

Mom expresses hesitation. Dad says he is working on the drinking and he swears he is cutting back. Mom does not want to "upset the apple cart" by filing a motion because she believes he might interpret the motion as being punished for making efforts to get sober and to be transparent about his efforts.

This is a tricky situation.

On one hand, there is some validity to Mom's point. Dad's efforts towards sobriety should be encouraged and he should not be punished for being honest. The problem, however, is that his assurances are not sufficient protection for a five year-old child. Those assurances, by themselves, do not provide any independent mechanism to verify or ensure Dad's sobriety.

In theory, Mom could allow several weeks or months to see if Dad is genuine, but that creates a problem with time.

Every day, judicial officers hear testimony (and read sworn statements) where parents make hair-raising accusations about each other. In many instances, it can be very difficult to determine who is being honest. A common technique judicial officers use to make sense of things is to look beyond a party's words to their actions as a more reliable indicator of what they will do in the future.

In this instance, if Mom voluntarily allowed the child to remain in Dad's unsupervised care for four or five months before seeking judicial protection for the child over the father's drinking, many courts may assume that the risk posed by the drinking is not significant. Had it actually been significant, Mom would have filed an emergency motion (or even just a regular one) well before the four or five months in.

Even if Mom does a great job in her testimony of explaining the basis for her hesitation, many judicial officers will assign her actions far more weight than her words. This is especially true if Dad takes the position that he has successfully been abstinent with Mom's knowledge and support. The undisputed facts at least appear on the surface to support his position. In this posture, it is a lot less likely that Dad will be ordered to undergo random testing for alcohol or substance abuse assessment and treatment. Mom may have placed herself in a situation where those protections are beyond her reach unless she either goes to trial or an alcohol-related catastrophe happens during Dad's time.

In that sense, when a party chooses to act can be the difference between getting relief or not.

Under these facts, I would encourage Mom to act earlier in order to have a better likelihood of success. If the motion is granted and Dad is subjected to random alcohol testing and a substance abuse evaluation, we will be able to assess the risk his drinking presents based on data and not someone's promises or assurances.

With that said, I also would not disregard Mom's concerns about Dad's honesty and attempts to get better. A frequent thing I tell clients is that motion practice is a "dial" and not an "on/off" switch. People think the options are either "do nothing" or "go to court and destroy the other parent." They often forget that there are middle grounds.

In this type of case, I would probably reach out to Dad before filing and explain to him that the purpose of the filing is not to punish him and that we are not trying to cast him as the villain. I would explain why a court needs independent verification of sobriety - especially given the age of the child. I would give him the opportunity to prove that his efforts are genuine before I carried it into a public fight.

If the parties could not come to an agreement, I would still make sure in the testimony to make crystal-clear that Dad's efforts should be acknowledged and his honesty should not be punished. I would not try to demonize the fact that he has an addiction - I would work to acknowledge it for what it is: a potentially hazardous medical condition. More importantly, it is a medical condition that needs to be carefully assessed in light of the potential harm to a child.

If I do this correctly, I kill several proverbial "birds" with one stone - I protect the five year-old, I get a safety plan in place that requires Dad's drinking to be examined, and I hopefully create a pathway that encourages Dad's growth rather than some slanted narrative that tries to turn him into a one-dimensional bad guy.

Hopefully this hypothetical situation serves as a wake-up call if any of my readers are experiencing real life risks. Despite the best intentions, delay typically cuts against a party seeking to establish risk and seek relief. Actions need to be taken in a responsible way, but they do need to be taken and must be taken in a timely manner.

Hopefully that helps.