(704) 275-0951Episode 3
Advice for Parents: Prioritizing Child Well-being in Custody Disputes
Welcome to Advocating for Dads with Janna Jones. I’m Sam Henninger, and I’m really excited to jump into a conversation today with Janna. We’re going to first start with something that we had been talking about in previous episodes. Let me ask you, Janna, what factors are considered when determining the child’s best interest in custody disputes and how do parental involvement, stability and capabilities play a role in that?
There are factors that the court is always going to consider when they’re looking at the best interest of the child or children. I would say the biggest thing that judges are looking for is stability. For example, they’re looking to see if there is appropriate housing for the children. They want to know if there are any issues with safety for the children. They want to see who’s being supportive of the children’s education. Is one parent or the other getting the child to school late? Or is the child missing school altogether in their care? Then I would say, the court is looking at other tangible things like extracurriculars and support when it comes to therapy. They also want to see what parent is really working towards a harmonious co-parenting relationship with the other one. A parent who is facilitating visitation with the other parent is always going to be appreciated by a judge. That’s telling the judge that you recognize that regardless of why your relationship ended, the relationship with the children and that other parent is still important. So, as you can see, there are really a number of things that the court is considering when they’re thinking about the best interest of the children.
Maybe you could share some examples of how parental involvement positively impacts a child’s well-being during and after a custody dispute.
Being involved is important. Does the parent want to spend time with the kids? When it’s time for the child to go to that parent, is that parent actually getting the child? There are circumstances where you have a parent requesting time and claiming they’re not getting time. Then when it’s time to go, they flake. That lack of involvement is definitely something that the court is going to take note of when they’re considering what kind of custody schedule is going to be the most appropriate and in the children’s best interest.
How do you work with parents to create personalized plans that address their unique family dynamics and prioritize their children’s needs?
As I mentioned in a previous episode, I have a questionnaire that I have my parents fill out before we start drafting anything at all. I do this so that I can get a lot more details about what’s been going on, what’s worked well and what hasn’t. I want to know from their perspective, what they think their best evidence is, which may or may not be true. Sometimes things like specific religions and holidays are going to be really important. Additionally, generally, we think about average American holidays. When we’re talking about the major holidays, most judges are going to go to consider Christmas and Thanksgiving. But let’s say you are Jewish. Christmas might mean nothing to you. Right? If that is the case, then the Jewish holidays are going to be far more important. When I have that information it helps me advocate for what it is that each unique family finds important and what each particular parent wants to see in a custody order.
Could you spend a bit of time walking the listeners through a bit of what the questionnaire that you use looks like?
At the beginning, I don’t know a lot of basic information. Therefore, the first thing in my questionnaire is going to go back to what we talked about in that previous podcast, which is the name and address of the opposing party. We have to know who we’re serving and we have to get them properly served before anything can really get started. The next thing that I’m going to need is the names and dates of birth of each of the children. It’s very important to know that information and to have the correct spelling.
I’ve actually seen cases where someone didn’t have the correct spelling of their own child’s name. That doesn’t look great in court. You want to make sure that information is accurate. In our custody complaint and answer and counterclaim, North Carolina requires that we list where the child or children have residing for the past five years. That’s called an affidavit as to the status of the minor child. One of my questions then is, where have the children resided for the past five years? Obviously, if you’re dealing with a child that is under five, then you’re going to be dealing with birth to present. I am then going to ask, what kind of custody arrangement is my client hoping to achieve. I’m asking for specifics. Again, I want people to fill out my questionnaire like they’re the ones writing the order because I need that kind of detail to know what I’m specifically asking for. Also, when I’m drafting the consent order, that helps me be a lot more efficient in crafting an order that reflects what the parent actually wants. Lastly, I’m asking for any evidence that the parent may have to support the custody order that they would like to see be implemented. For example, it could be if they feel like the other parent has done something to put the child in danger, or is not getting the child to school on time, or has done something inappropriate to the child. That’s the kind of information I need. Also, if there’s evidence that backs that up, that’s when they would give me that information.
My mom and dad split up, and then my dad moved out of state. My sister and I got to visit him during the summer. I guess that might be one of the arrangements that parents and kids would come to. However, maybe you can offer some of what you have seen when it comes to creative solutions or strategies that you recommend for long-distance parenting and arrangements that involve technology-assisted visitation. I know that FaceTime and Zoom are a lot more prevalent now with the intent to maintain a strong parent-child relationship.
That’s what you’re trying to do, is to maintain that relationship regardless. I’m thinking about some of my clients who are in the military that I’ve represented in custody cases. That can be particularly challenging. They don’t get to choose where they’re going. They aren’t choosing to be away from their children. They are called to a higher purpose and they have a job to do and that job might take them across the world. Technology, thankfully, really gives you a chance to still foster that relationship. For parents that are far apart, that communication provision in an order is going to really be important. Obviously, it’s not meant to control the custodial parent’s life. They still have things going on and they can’t just drop everything for calls or FaceTimes or Skypes, et cetera. However, if we have something in place where everybody knows what the expectation is, it is going to give the children time to foster that relationship with the parent that’s far away. We want to take advantage of the fact that we have the technology that allows us to do that. When it comes to the physical custody arrangements for parents that are far apart, generally speaking, someone’s going to have to have primary custody and someone is going to have to have visitation. If you have one parent living on one side of the country and the other parent is on the other side of the country, a joint custody arrangement is not really going to be practical. The closest way you can get to that is probably holidays and then an entire summer. That may or may not work for the family. Obviously, the parent who has the child during the school year wants to have some fun with them during the summer too. So, it wouldn’t necessarily be fair to take all that time in the summer. However, that’s probably the closest way to get to some semblance of a joint custody arrangement when parties are that far apart.
What other common challenges do you see parents face when it comes to navigating these visitation arrangements? And how can legal counsel help address these challenges effectively?
Well, I think the biggest thing that I do as an attorney is give people facts. I’m not emotionally invested in the situation. I haven’t been hurt or I haven’t hurt the other party. I can be much more objective in evaluating what is and isn’t likely to work as it relates to what the custody schedule is going to be and what the court may feel is in the best interest of the child or children. I think the most important thing that an attorney can do, is to give you unbiased factual information. Then you take that with obviously a lot of emotions that come with co-parenting, and figure out how you want to move forward from there.
How do you handle conflicts such as noncompliance with visitation agreements and denial of visitation or attempts at parental alienation?
When it comes to a custody order, each party is supposed to follow that order. If you have violated a provision of that order, then the offending party can be found in contempt. However, you have to file a motion in order for a judge to make a determination as to whether or not there has been willful noncompliance with the provision and if they can find them in contempt.
There are a couple different types of contempt. There’s civil and there’s criminal. I won’t go into all of that because it will probably bore your listeners to death. However, to kind of make it simple, there has to be a specific provision in an order that someone is violating in order for the court to find them in contempt. Now, before you’re even going down that road, the benefit to having a custody order is that you can get law enforcement involved to help execute that order. For instance, a visitation happened and one parent was supposed to get the other child at 6 p.m. on a particular day. That time comes and goes and the party doesn’t show up to the exchange location. You can then reach out to law enforcement and ask them to help you get your child back because you have a custody order that says that you’re entitled to that time with the child. That is the power of having a custody order, along with the fact that after the situation happens, you have the ability to punish the parent who has violated a provision by asking that they be held in contempt of court.
It sounds like it is important to have a good plan and if you have an order, you have ways to enforce it. I think a lot of people might worry about what they can do if the other party doesn’t follow through.
Absolutely. Any order is going to be enforceable by the contempt powers of the court. In other words, you have the ability to go into court and ask that the judge hold that other party in contempt for failure to comply with the court’s order.
I’m just curious. What does that timeline usually look like when filing that motion and getting a decision?
The motion is going to take as long as it takes to get it drafted and filed. The question is, when do you get a court date? And that is something we don’t know. Once we file, it goes to family court and eventually makes it to a judge and they put a date on it. Then, they will tell us what it’s going to be. Sometimes that will be within a few weeks. While other times it can take a few months. There are so many things that come into play with how quickly you can get a court date. The majority of them have absolutely nothing to do with the parties or the attorney. That is the inner workings of family court.
You know this better than I, but my first thought then would be if there’s cause for one motion, there might be cause for more than one motion before a court date gets set. If so, do you see that happen?
When it comes to everything in this country with the legal system, it’s about notice. As I’ve said in some previous podcasts, you’ve got to have notice before anything really gets going. It’s the same thing with contempt. The judge is going to look at the four corners, we call it, of your motion for contempt. They will review everything that you’re alleging. It’s all up for grabs as a potential finding for contempt. However, things that are outside of that, meaning things that may have happened before that you didn’t list in the motion or things that have happened since you filed the motion, are not going to be a part of that court date. You can, however, potentially file an amended notice, if time allows for that. Otherwise, assuming you get a court hearing before any type of amended pleading has been filed and the other side has been given proper notice of it, then you’re going to be going with the motion that you filed originally. You can file subsequent motions. However one thing I want people to always know about contempt is, it can be a vicious cycle. Let’s say, for instance, we file a contempt action, the party gets found in contempt of a civil order, they have to pay attorney’s fees. If the court says this is something that shouldn’t have happened, you have the ability to comply, and the judge is going to make you pay the attorney’s fees because of it. If that party doesn’t pay the attorney’s fees, then what do you do? Now you have got to file another contempt on that order, saying they had to pay attorney’s fees. It can become a vicious cycle. Generally speaking, unless the facts are particularly egregious, what I have noticed in my experience is the court doesn’t put people in jail, not the first time around anyway. It has to be pretty bad for them to do that. Unfortunately, what you find yourself in is, this revolving door before anything happens that makes that person feel like they’ve been made whole. That can be a lot of anxiety, angst, court dates and money to get there.
Given your role in this entire process, which has its place, you’re not necessarily getting much involved with the lives of people outside of these particular activities. What I’m hearing you say is you need to have a clear plan in these situations.
Absolutely. Just because it can be litigated doesn’t mean it should be. Right? You have to weigh your pros and cons. It’s that kind of return on investment that you want to consider. Is it worth the expense financially? Is it worth the stress of the court date? Contempt cases can have ramifications with the children as well. If you’re trying to put mom or dad in jail, how’s your child going to feel about that? How’s that going to affect your relationship with your child? There’s a lot of considerations that parties need to do some soul searching on before they go down that road. Then, you need to be prepared to maybe do it a few times before anything really sticks.
Janna, what concluding advice would you give to our listeners, given these can be some pretty sticky situations?
I would say in conclusion, the law cannot fix everything. Again, the law cannot litigate your ex into being a better person. They’re not going to change them. You need to understand the role of the law is to put guardrails up. I kind of think of it like bowling. You put those little things up that keep you from going into the gutter. That’s what the law does. The law does not guarantee a strike. It guarantees that the ball doesn’t fall in the gutter. To the extent that you and your ex can work together to try to figure out some common ground, do so. Otherwise, you may end up in court with an order that neither one of you is happy with. To the extent that you’re able to, consider those things before you get into litigation, and then once you’re in it to know what is realistic. That’s probably the most important piece of advice I can give.
Jana, thank you again for this wonderful wisdom that you give us and the expertise that you share as an advocate for dads.
Absolutely. Thank you so much for having me, Sam.
This has been Advocating for Dads with Janna Jones. I’m Sam Henninger. Remember to subscribe, share, follow, because we’re going to continue having these great conversations with Janna. Thanks again.
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