No good deed goes unpunished, especially with child custody

I see it time and again -- the informal custody arrangement that results in one parent relinquishing “temporary” physical possession of a child to the other parent. While such arrangements are often made with the best intentions, a deal like this almost always results in complications for the relinquishing parent, particularly when the parties don’t get along. Indeed, good deeds like these seldom go unpunished.

The typical scenario goes something like this: mom surrenders the child to dad in order to give her time to “get on her feet” financially, or find a permanent place to live in a new city. Mom has a rocky parenting relationship with dad but, based on dad’s promises to help out, mom lets the child go with dad on what she believes is a temporary basis. Mom even puts the arrangement in writing and dad is more than happy to sign.

Days turn to months and before mom can bat an eye, dad has maintained physical possession of the child for a period of longer than six months.

What mom doesn’t know is that she has inadvertently armed dad with the ability to mount a compelling case for change of custody.

Mom then gets served with papers seeking to modify the custody arrangement to render dad the parent with the exclusive right to determine the primary residence of the child on a permanent basis. In other words, dad wants to have “primary” custody of the child such that the child would live with him and go to school from his address. And one other thing, dad is also seeking child support from mom.

Mom now has a serious problem on her hands and, with the threat of losing custody of her child, she will almost certainly need a good lawyer. What will make this legal battle difficult for mom is the fact that the Texas Family Code provides that dad can go into court three days after serving mom the papers and seek a ruling that allows him to keep the child while his modification suit is pending. This gives dad substantial leverage and may very well provide him the upper hand when the Court makes its final decision about where the child lives going forward.

Dad will invariably allege that mom abandoned the child to him and the Court may presume this to be the case, given evidence of the voluntarily relinquishment. Ironically, this evidence may come in the form of the agreement that mom asked dad to sign with best of intentions. Mom is now forced to overcome these allegations in order to save custody of her child. The only way out of this jam for mom is to convince the Court that, despite her temporary relinquishment and the harsh allegations from dad, it remains in the child’s best interest for the child to resume living primarily with mom. Mom has placed a heavier burden of proof on herself than necessary. She will now have to look for witnesses who can testify about her parenting skills and or dad’s lack thereof. And, what’s more, she may even have to disprove any lies told by dad to enhance his leverage in his case.

While this is a tricky situation, with the right approach, mom’s case is not un-winnable. But, the headache and the risk of losing her child is certainly something she can do without. So, the best advice I can give mom is to simply avoid this type of situation altogether.

It’s been my experience that parents who roll with the punches while keeping their children by their side tend to make it through trying times and come out better for it. Barring a true crisis or emergency, always keep your child with you. You will likely find that your child is able to weather the storm right along with you and you can avoid the hassle and expense of unnecessary heartache and litigation.

What to do if Child Protective Services calls

Relationships can be complicated, especially when children are involved.

In my practice, I get frantic calls from anxious parents who have been reported to Child Protective Services by their estranged partners or others.  Unfortunately, CPS is often misused in an attempt to gain false leverage in a custody case. Sometimes, they’re used just to get revenge on partners who want out of a relationship.

This leaves CPS workers in the middle of domestic fights that cloud the truth of what is really going on in the home.  

In one situation I recently encountered, there were allegations that an estranged husband provoked an argument and then videotaped the exchange out of context to gain sympathy with CPS.  In another case, an estranged wife allegedly coached a child to imply falsely that the father was emotionally abusive.

It goes without saying how this behavior can damage children who want desperately to please their parents.

CPS workers try hard to be objective, but at the end of the day, they’re only as effective as the information they receive - which is by no means objective. 

Judges try to decide what is in the “best interest of the child” based on the CPS recommendation and the accused person’s defense/case. So, it’s imperative to get as much information about the home life and the child before the court.

There are a couple ways in which an attorney can get this information before the court. One is to provide documents related to a child’s good mental and physical health as well as educational records. Having a steady job and income can also work in the accused party’s favor as will a clean criminal record. Moreover, if a child is 12 years or older, the attorney can request that the judge interview the child in the judge’s chambers. This way, the child is not under pressure from any parents and can speak more freely.

An attorney can also discredit false information through a variety of tactics including testimony of character witnesses, expert analysis of the child, background and financial checks of opposing parent, etc.  

After hearing all the information, the judge will consider the CPS recommendations and documentation and testimony provided through the attorney before deciding what’s best for the child.

Whatever the outcome, some decisions can be appealed and revisited to update the court on changing circumstances.

The bottom line is, if CPS calls, the next call should be to an experienced family law attorney. The attorney is your best defense when child custody gets ugly and CPS is dragged into the mess.