Children 101


In the movie “Field of Dreams,” the main character, Ray, is driven to do some bizarre, even extreme things. Out of his cornfields, he builds a baseball diamond for no evident reason. He makes a cross-country journey to meet and bring back to Iowa, a reclusive writer without knowledge of why. In the process, Ray almost literally “loses the farm” to bankruptcy and nearly tears his family apart. However, in the end, the viewer learns what this was about for Ray. His struggle was to heal the hurt caused by a rift with his now deceased father — to “ease [that] pain.” In the conclusion, Ray is reunited with his father. The struggle gave Ray a chance to get something that a bankruptcy Court could not put a dollar figure on. It was the opportunity to say just once more: “Dad, want to have a catch?” Money cannot be used to quantify the value of that experience.

This movie reflects something self-evident: The parent-child relationship is extraordinarily special. How do you put into words, or dollars and cents, the experience of a son learning to fish with his dad? A mother teaching her daughter the A, B, Cs? A game of catch? We tend to take these parent-child experiences for granted when the family unit is intact. What happens when there is a rift that brings the parents to Court and when parents may be fighting over who gets a greater portion of time and control over the child? What are the consequences for the child?

We bring that movie into focus in this overview discussion of child matters in family law because it provides some insight by looking at things in a different way than the typical family law model. In this movie, the perspective shifts to the reverse of a family law case: It is the adult son, Ray, making efforts to establish and restore a relationship with his father that literally is otherwise terminal. It illustrates just how much that parent-child bond means to both the parent and the child.

What Role Do Children Play in Family Lawsuits?

In family courts, it’s the parents (not the child) who are acting for that precious matter of control and time with their children. The parent may act through the legal process, either by agreement or by order of the Court through trial, to gain something that, unlike the division of property, cannot be easily defined: the contours of their relationship with their child. So things framed above rhetorically, such as “what does it mean to have just one more day a week with my son,” will in this legal process ultimately have an answer in the form of a Court order.

How Does a Parent Going Through This Process Arrive at the Court Order Stage?

What you must understand as a starting point, is that there is typically a three-way tension in a family law case involving a child. There is the tension between mother and father as adversaries in the legal process. One is called the Petitioner and the other is called the Respondent. Then there’s the third party to the matter who is affected by the suit: the child. The court is burdened in family law cases dealing with a child with defining the relationships of the three – mom, dad, and child – respective to each other.

Suit Affecting Parent-Child Relationship (SAPCR)

What is it that a family court does with an order (either as part of a final decree of divorce or an order in a Suit Affecting Parent Child-Relationship [“SAPCR”])? There are three things that the Court deals with in family law matters regarding children. It will make orders with respect to:

(1) the parents’ “conservatorship” (custody) rights of the child;
(2) the parent’s respective “possession and access” of the child; and
(3) child support (including medical support).

Your family law attorney needs to understand what your objectives are so that they may present your position to the court in the most persuasive way with regard to each of these specific issues.

The assumption here is that you would likely want to maximize your parenting, as it relates to decisions about your child’s life and time and possession of your child. Your attorney will also need to understand and think about the tension emanating from the other side.

What Does Your Spouse Want Regarding the Children?
And, What Will They Say About You to Get It?

What you need to know about that is to anticipate a potential line of attack and find ways to accentuate your strengths when presenting a defense of that attack to the court. Your attorney’s objective is to demonstrate that your qualities, on balance, outweigh (or are at least equal to) those of the other.

“If you build it, they will come,” was the most famous line from “Field of Dreams.” It was uttered many times and Ray had to think very hard to comprehend what “it” exactly meant, i.e. build a baseball field. In a family law case, you can imagine the judge’s task in a similar light as Ray’s. The phrasing that is repeated in virtually every aspect of the child custody case is: “best interests of the child.”

When you think of the judge and what drives them to a decision, imagine them repeating that phrase: “What is in the best interests of the child…” Ultimately, what’s in the best interest of the child is often very difficult for the judge to discern. But, what the judge wants to do is make sure that they are making a decision that places the best interests of the child above everything else. The court is far more concerned about reaching a conclusion that the judge thinks will be best for the child rather than either one of the parents. So how does the court know what that means?

The court will be presented with evidence and testimony from the respective parties. One would expect, especially in more contentious litigation, that the parties will present themselves in a particularly good light and perhaps drag the other party through the mud. Certainly there is the benefit of our adversarial legal system that both sides would be subject to cross-examination. This means that the other side’s grand notions of being “best dad ever,” can be challenged. It also means that your client, “world’s best mom,” may also need to expect that she will be subject to some intense scrutiny.

Bringing in Experts

So that the court may get a perspective that tends to offer much less bias and much more neutrality, a judge may appoint various mental health experts to the matter. It may be of significant importance to retain your own mental health profession to support your position in the case. Mental health professionals include psychologists, psychiatrists, licensed social workers, licensed professional counselors, or parenting facilitators. They’re people, through their education and training, who are helpful in guiding the Court in dealing with the issues that are before it.

Even in contested litigation, it is not a given that mental health professionals will be involved. However, if the resources for their involvement are available — especially if it is a contested case — they may play a critical part in defining what is in the child’s best interest. It is often likely that the court would seek that input and give it substantial weight.

Passions are intense in family law cases involving children…egos, as well. Of course, many moms and/or dads out there see at the outset of the litigation that the ultimate order will be a validation of their own world view, their way of acting as a parent, and that they are “better” than the other parent (both as a parent and as a person). That type of perspective to litigation, when it relates to children, can be dangerous.

Your attorney should advise you (and you should be prepared to hear) that the judge will likely want to see two people who’ll put their own respective interests secondary to that of the child. The parent who acts more selflessly, respects that the other parent as a critical part of that child’s life, seeks ways to compromise when there are differences of opinions, and works through important decisions jointly to the greatest extent possible, tends to be the parent who actually “wins” at court and in the long run. Obviously, that may not be possible in every case and some circumstances would direct you to take just the opposite approach to protect the children. Your attorney will understand that and work to make sure that the judge does, too.

Considering what happens in a family law case involving a child will entail a great deal of thought and consideration between you and your attorney. At times, it may feel that you’re asked to build a ballpark in the middle of a cornfield and that it is not quite clear why you’re being put to certain tests.