The Custody Conundrum

Fighting Fair Over the Kids When You Don't Want To

By Joann Yeh Litt
Published: Dec 05, 2007

Done. It’s over. You’ve given it all you’ve got and no amount of counseling or space can save the mess previously known as your marriage. A War of the Roses might ensue, but if there are children in the picture, put down whatever you’re about to throw and take a deep breath, or you’ll end up in a Britney/K-Fed, Sheen/Richards nightmare.

As hard as it may seem, try and be proactive about working out custody issues before divorce proceedings begin and emotions balloon out of control. If possible, put together a parenting agreement that documents all details of custody and visitation such as living arrangements, education, religious training, holidays, financial issues, and medical care so that a court doesn’t have to. Additionally, in some states, if one parent moves out of the home before the divorce, it takes many months to get a hearing to decide on custody, so it may be a good idea to make arrangements jointly ahead of time that will benefit everyone—especially your child. Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn't Last from Nolo Press may be a good place to start.

If it’s gotten beyond the point of cooperation, however, control your urge to use your kids to get back at your ex. When asked how parents could fight custody battles more fairly, family law attorney Linda Haspel says, “The problem is that most people don’t fight fair. I’ve seen it all. The most important thing is to put the child first. If that’s the only rule, then that’s a perfectly good rule.” Another proactive step that parents can take, suggests Haspel, is to find a reputable therapist for the child to address the issues of the divorce in a child-appropriate, age-appropriate way to avoid as much trauma to the child as possible. “If the parents, through the therapist, could make the child know it’s not their fault, that goes a long way to helping the child’s wellbeing.” Studies have shown that most kids still want their parents to get back together even if all they did was fight—the sense of being able to love mommy and daddy equally is always going to be there.

Unfortunately, the list of what-not-to-dos is long and varied, but all of it is behavior that’s destructive and definitely not in the best interest of the child.

Don’t try to alienate the child from the other parent. Make sure your child maintains a relationship with the other parent throughout the divorce and beyond. “Try not to exclude the other parent from decisions about or for the child,” says Haspel. “For example, for your child’s school emergency contact, don’t list your boyfriend instead of the father.” Trying to cut the other parent out of your child’s life will often backfire. The child will take any anger (and she will have plenty) out on you: “Daddy would have let me get my ears pierced—because he loves me!”

Don’t play games with the kids’ possessions. “One parent will buy really nice toys or clothes for the child but refuse to let them take it to the other parent’s house,” says Haspel. “Don’t put the child in the middle.” Your child (unlike your friends) isn’t going to love you more because you buy better presents; she’s just going to resent you for trying to manipulate her. You should know by now that kids are smarter than you think—especially when they’ve had the time to observe you and your ex at your worst and most vindictive.

Don’t do the inquisition. When it’s your turn with the child, refrain from asking the child everything he observed at the ex’s: Was daddy’s slutty new girlfriend there? What was she wearing? What did he buy her? Again, this only puts the child in the middle where he doesn’t belong.

Treat the other parent with courtesy. “Treat him or her like a business acquaintance. If you’re going to be late, call. If you can’t come, call,” says Haspel. Regardless of what you think of him personally, be polite. Isn’t that what you’ve been trying to teach your kid?

Plan activities on your own time. Don’t sign up your child for an activity that encroaches on the other parent’s time unless it’s been OK’d. If you know your ex has the kids on Saturdays, don’t all of a sudden sign them up for peewee softball that—oops!—practices on Saturdays. Respect that time and acknowledge that your children want to spend time with both of you, and anything you do to make that harder for them is only going to bite you in the ass later on.

Psychologists have found that the worst thing for the child is not the divorce itself but the transition from one parent to the other. With the constant badmouthing and venom-spewing that often occurs when one parent relinquishes the child to the other parent, it can be more harmful than the actual split. This only gets worse if the child has no idea where she’s going to sleep on a given night; is your victory in wrangling one more night away from the father really worth it?

The worst thing that Haspel’s seen parents do? Make false allegations of sexual abuse. This often entails filing criminal charges and calling child protective services. “They will sometimes even coach the child,” she says. “And if the child is very young, she is more impressionable. A lot of this is about money, because the court determines child support based on how many overnights a parent has. Try and separate what’s best for the child from your financial issues.” The child is a child, not a weapon.

So, swallow your bitterness and hurt, and remember that no matter what, you have to put your children first. You’re the grown-up. Act like one.

Joann Yeh Litt was a self-loathing law firm hack before deciding it was more fun to write than to argue. She still argues quite frequently with family, however.

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