Not every custody case requires a mental health expert. Many times, parties are ordered to attend Custody and Parenting Time Mediation and can resolve their dispute. Other times, one party files a pendente lite motion (applied to court orders that are in effect while the divorce is pending), seeking custody, and the Court’s Order resulting from a detailing of all of the facts both parties would contend at trial is so close to what either or both parties want that further custody litigation is foregone.
However, there are many occasions where the parties are so far apart in what each wants that a custody trial is necessary, and an expert is chosen to tip the scales in favor of one verses the other. When issues of child maltreatment are raised by one or both of the parties, these issues must be handled with care. An exaggeration of the conduct at issue, or lapse in appropriate response to it, may so undermine the credibility of one party over the other that a party loses primary custody simply by virtue of her poor communication.
In referring to child maltreatment, we are not referring to issues of child abuse or neglect that would rise to the level of actionable legal violations leading to CPS findings. Instead, we focus on your garden variety claims of lackluster attention to detail, improper bedding/clothing in the home, inadequate supervision, poor nutrition, unsuccessful discipline techniques, etc. Below are a few tips on how to address issues of child maltreatment in custody evaluations.
When you contend the other parent engages in child maltreatment:
1. Focus your comments on the impact of the other parent’s behavior on the child – not on you. If mom is not feeding the child during her parenting time or neglects the child’s hygiene, don’t note how embarrassed you are to have your child seen in that condition. Instead, note how your child complains of hunger pains or appears embarrassed by their unkempt appearance.
2. Acknowledge positive improvement in the behavior, if same exists. If dad worked 80 hours per week during the marriage and never prepared a meal for the child, he may struggle to provide healthy meals during his parenting time. Acknowledge the adjustment period one would expect in this circumstance, but note that the situation has not improved with time.
3. Consider alternative hypotheses for inappropriate conduct and come prepared to propose solutions other than restricting access. Courts and mental health professionals often loathe to limit parenting time for less than stellar parenting. If the other parent spends most of her parenting time with her friends present, perhaps it is not that she does not care for your child; perhaps it is an inability to bond. Discuss therapeutic visitation as an option to improve the situation before seeking supervised visitation.
When you are the parent accused of engaging in child maltreatment:
1. As difficult as this will be, try not to present as defensive. The more fervent your protests that you are being wrongly accused, the less focus you give to your child. That may register as narcissistic or self-absorbed – attributes that often militate against one serving as the primary parent.
2. Come prepared to refute or address allegations that have been made in litigation. If you are accused of providing improper supervision to your child or failing to adhere to a set bedtime routine on school nights, acknowledge any shortcomings from the past while proposing solutions for the future. “Yes, I may have had difficulty getting our son to school on time, but since I have relocated closer to the former marital home, that has not been an issue.” A blanket denial of every statement made against you often presents as self-serving and likely untrue.
3. The best defense is a good offense … maybe. If you have legitimate concerns for the well-being of your child in the care of the other parent, raise them with the custody evaluator, but not when you are defending yourself against claims she made against you. If you present your concerns in a quid pro quo fashion – “I know she accuses me of missing the occasional play date, but she smokes around our son and that is far worse!” – you risk the evaluator devaluing your concerns as nothing more than childish reverberation.
Issues of child maltreatment are not uncommon in custody litigation. Mental health professionals are accustomed to hearing complaints from both parents about the other. Directing your communications to the evaluator in a way that ensures that they are heard increases the likelihood of a good result in your custody matter.