The Washington Post has a story today by Staff Writer, Ann Scott Tyson, about parents using military deployment to gain an advantage in custody fights.   Custody fights are hard enough.  Imagine having to fight one from Iraq or Afghanistan.

By federal law, military members can request up to a 90 day delay in child custody proceedings.  But deployments are for 15 to 18 months.

So several states have adopted laws in the past two years to remedy this.  For example, Virginia passed a law this year to bar any permanent change in custody while a service member is deployed.  The District of Columbia does not have such a law.  And a similar law was killed in committee in Maryland this year.

Congress is expected to hold hearings on the issue next year.

While many clients think the trial resolves everything, most lawyers know that is not the case.  If the mother of your children was difficult before the trial, the trial is not going to make her into a different person.   She will still be difficult, you will have disputes regarding the children and you will need to resolve them somehow.

The court has the power to enforce its orders or the agreement of the parties.  So the court can order a mother to allow visitation or can order a father to pay child support.  However, the court will only do this if one of the parties asks it to do so by filing a petition.  The other party will then have an opportunity to respond and a hearing to present their side to the judge.

It is always better to resolve disputes yourselves if possible.   If you have a settlement agreement, you can include a provision that disputes will be submitted to mediation before taking the other party back to court.

You can also include a Parenting Coordinator in an agreement.  This would be someone that the parties can take their disputes to and let them make a decision.  This is less costly and time consuming than litigation.

If you cannot resolve your dispute through one of these methods, then you must go back to court and ask the judge to decide.  In some cases, it may be like trying your case all over again.  In addition to resolving post-trial disputes, the court has the power to modify legal custody, physical custody, timesharing and child support after the trial, if circumstances change and the modification would be in the best interests of the child.

Every judge sees it differently. If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody. The mother does not have an automatic edge in litigation. Fathers win in a lot of litigated cases.

There are certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:

1. Parental rights. Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.

2. Continuity of placement. If children are doing well where they are, do not mess things up by moving them.

3. Children’s preference. A judge will consider who the children want to live with. The judge may talk to the child in private and may talk to a child younger than fourteen years of age. The judge is not bound by what the child wants.

4. Other. The court can consider the custodian’s age, health, wealth, religious beliefs, conduct, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.
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“Calm down!” “Stop whining!” “Be more respectful!”

I wish I had a nickel for every time I’ve said that to my kids.

Dr. Michele Borba, in an article at iVillage.com, says this is Parenting Mistake #1.  Rather than assume our kids know how to act, use the opportunity to teach them a new behavior or skill.

She suggests you call the child on the bad behavior briefly, then show, don’t tell, the replacement behavior.

For example, if your child whines, you say, “That is a whiney tone. Listen to my nice tone. Now you try.”  Or if your child is angry, for a younger kid, say: “When you start to feel yourself getting mad take big Dragon Breaths.” For an older kid, say: “Take a deep slow breath, and count slowly to ten.”

By Jill H. Breslau

Language can impact our thinking and behavior. Language in statutes regarding custody, for example, can influence –if only in a subtle way—how we perceive our relationship to our children.

For example, in Maryland, where I practice now, and many other states, custody of your own children is described as a right. As a parent, you have a right to the companionship of your children, you have the right to teach and guide them, to nurture them, to direct, and control their behavior. You have the right to decide where your children go to school, whether and where they attend religious services, what kind of medical treatment they receive and from whom. In Maryland, custody may be shared or sole, and the other parent may be awarded access or visitation.

In Florida, where I used to practice, and in several other states, the “custody” and “rights” language has been deliberately replaced by different vocabulary with a different perspective. Parents in Florida are not awarded custody. Instead, parents have responsibility for their children, and parental responsibility, at divorce, can be shared by both parents or can be delegated to one parent alone. With shared parental responsibility, parents share time with their children and both parents are entitled to have full information about the children and to share in major decision-making for the children. Sole parental responsibility is awarded only when sharing would be detrimental to a child.

I believe the difference in language—rights versus responsibilities—impacts the way we approach custody in divorce. If we believe in our rights, then we have to fight for them, and we have to win them. Our children, on some level, are perceived as objects to be gained or lost. There is a sense of ownership, rather than relationship.

On the other hand, if we perceive that we are undertaking responsibilities to our children, we may be more cautious about considering what is really best for them. We may be more focused on how we can accomplish the tasks associated with child-rearing than on establishing our parenting superiority.