Regaining Custody in Divorce

Regaining Custody in Divorce

Custody: Getting the Children Back from the Ex-Spouse Can Take Time and Cost Money

Nancy Michaels‘ story about regaining custody of her three children is a grueling one. The 44-year-old marketing specialist found herself after a series of debilitating health crisis, facing the worst possible scenario – losing her kids.

The story starts with the end of her marriage. Michaels’ husband had walked out eight months earlier, and she was working hard to get herself back on track following an almost-20 year marriage to a controlling husband. She had been feeling sick for months, but doctors were not able to diagnose the problem. One night, feeling particularly worse, she went to the local ER.

“I fell into a coma two days later and literally was unconscious for two months,” said Michaels, from Concord, Mass. The diagnosis was liver failure. Apparently, Michaels had a powerful form of the herpes virus that showed no outward signs, but adversely affected her internal organs. She suspected that she got the virus from her unfaithful husband.

During her time in a coma, Michaels’ estranged husband was invisible. “He was not there; he never sent a card; he never called my family. And in the meantime, I lost custody of my kids. He moved back into the home. Basically, when I finally woke up from the coma, I had nothing.”

It took almost a year following a successful liver transplant for Michaels to recover. During that time, she lived with her parents, far away from her children, but saw them every weekend. “It was after I began to regain my health that he insisted on a Guardian Ad Litem to evaluate me as a capable parent,” she said. “It seemed he suddenly questioned my motives as a caring and loving mother. Once he left our home he seemed to have a laundry list of items that caused him to question my commitment as a mother; mainly that I worked outside the home and traveled some for business. Ironically, it never came up as a significant problem when we were married. I believe he was thinking/hoping I would not regain my health.”

A Guardian ad Litem is a court-appointed representative of a minor child. “Once I was well enough, I moved back to an apartment in Concord and saw my kids every afternoon. And I was finally granted primary custody.”

Michaels’ situation is not your average custody battle, right down to the final outcome. Lawyers point out that changing custody rulings is one of the toughest things to do in a divorce. Most courts in the U.S. use a ‘best interest of the child’ standard. “A parent without custody needs to prove the status quo is not in the best interest of the child. And the arguments you use have to be tailored to the age and situation of the child,” said Belinda Rachman, 52, a Carlsbad, Calif.-based lawyer specializing in divorce mediation.

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When there is something already in place, the courts feel if it ain’t broke, don’t fix it,” said Lynne Gold-Bikin, 65, family law chair at WolfBlock LLC based in Morristown, Penn., and a practicing attorney for over three decades. “The courts are getting away from their focus of what the wants of the parents are and focusing more on the needs of children.”

“Courts like the status quo. They feel, why rock the boat? It can be hard for a non-custodial parent to come in and shake things up. Courts tend to want a reason. Why should we interrupt this status quo? They tend to want to base it on something tangible, not just ‘I want to spend more time with my kids,'” Rachman said.

Which means for most custody arrangements currently in place, unless you can prove there is credible grounds for a change, there is an initial reticence on the part of most courts to disrupt what the children have gotten used to. In general, issues of custody vary depending on the state, the court and the judge, as well as the specifics of each case. Litigators to one common factor that is weighed in their final decision: the age of the children.

“There is a certain age when each court starts to listen to the druthers of the kids. I advise my clients with teenagers to just do what kids want to do,” Rachman said. “If you have two reasonable, normal parents, then the court will more likely do what the child wants because at a certain age, they let them have say in it.”

Another factor the courts consider is which parent will be most agreeable to visitation. The person who should get custody is the one most likely to facilitate visitation,” Rachman said. “In California, I have seen cases where the father was absolutely incapable of taking care of the child got custody because the mother played games with visitation. Too many people link up nonpayment of child support to limiting visitation with child. They are two different issues. Just because someone doesn’t pay child support, doesn’t give someone the right to limit visitation. You can never be seen as obstructing visitation or you could lose custody.”

But not all custody cases are the same, Gold-Bikin added, and that affects what your chances are at changing them. Primary custody means the kids live with you more than half of the time. Joint legal custody means you both have equal input in parenting decisions,” she said. Sole custody, which most states are moving away, means that only one parent has custody. For the court to give someone sole custody, there has to be a very compelling reason.

“For instance if you lost custody of your children, there’s a strong reason you shouldn’t have the kids in the first place. Maybe you are completely wacky doodle, or have abused the kids. Maybe there are some mental issues there. It is difficult to undo that,” she said.

“But that is not to say it can’t be done. Sometimes the non-custodial parent has been the victim of a manipulative ex-spouse who lied to the court about the him or her in order to sway custody in their favor. It’s not as rare as some might think. This happens all the time. You need to work on finding evidence that will support your side of the story,” said Brette McWhorter Sember, 39, in an e-mail interview, a former lawyer based in Clarence, N.Y., and author of several books including “How to Parent with Your Ex (Sourcebooks).”

“In all cases, the courts have to give a reason for their decisions, and those are clearly spelled out in the decision. For those wanting to readdress custody, it’s important to reread the court’s decision and focus on why custody was granted to the other parent. Then go about changing the things the court didn’t like,” Sember said. “Maybe your work schedule was not conducive to custody or perhaps you lived with someone who was not a good influence. Change those things. Document the time you spend with your children and document any problems at the other home with the other parent.”

“You have to take a hard look at why you lost it and undo it, and documentation is very important,” Gold-Bikin agreed. “If you are married to or dating a guy who sexually abuses the kids and if you are still with him, forget it. I have one case she says she broke up with her abusive boyfriend, we got a detective and caught him sneaking back to the house. That is why incest cases are so difficult because most of them time, the mother knows about it. That is a women who is going to lose custody.”

“The process of fighting to change your custody arrangement is neither pleasant or quick. Unfortunately these cases can get very nasty. You may have to try to prove the other parent is not parenting well and that means saying things that are unkind. If they are true, however, you are in the right,” Sember said. “You need to give it time. If you got the order last month, the court is not going to make a change a month later. It’s really unlikely anything has changed in that time period. The court is looking for long-term change and stability in your life.”

“You should wait a certain amount of time from the last order,” agreed Rachman. “If you have an order that goes in one direction you can’t turn around and fight it again. You have to wait at least six months.”

And it may involve bringing in outside parties to solidify your case, such as therapists, psychiatrists and even a Guardian ad Lietum, such as in Nancy Michaels case, which in the long run, helped her win her case. Bringing in a therapist or psychologist is also an avenue for proving you’re a stable parent, but there are risks with this.

“Psych evals are critical. It can get expensive though which is why many people don’t do it. You also can’t be sure what the therapist is going to recommend. What if she recommends against you? Then you’ve got to find yet another person and pay for yet another eval. It can be costly, but these reports are of great help to the court when they offer real definitive opinions,” Sember said.

For Nancy Michaels, while the ending was a happy one, getting there was exhausting and expensive. Changing custody orders is not easy. “It was easy for him to obtain custody when I got ill for obvious reasons. He made it legally challenging, expensive and extremely stressful for me to regain custody of our children. In the end it was the GAL’s (Guardian Ad Litem) recommendation to give me primary custody of our children and both of us joint legal custody,” she said.

Her ex-husband did not fight the decision. His argument remains that because I agreed to be a stay at home full-time mom ““ there were no other options at this time due to my slowly recovering health and therefore, that’s why I received custody of our children,” she said.

The judge did comment one time in court when the issue of custody was in question ““ he had second thoughts apparently“ and my ex’s criminal attorney (he never used a divorce attorney — causing further upset) said they would not question the custody issue because I had agreed to be home full time,” she said. “And the court forced him to pay alimony and child support. Honestly, I am so grateful.”

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