Custody and Access

I was extremely disheartened to read this article in the New York Times about a soldier who left home to serve in Iraq, only to return to a custody dispute with her ex-boyfriend over access to their 2 year old child.

Although she and her ex had drafted a family care plan with the assistance of “military officials” that provided for shared custody upon her return, her ex chose not to honor it when she came home and severely restricted access to the child. He determined that the mother’s presence would be “too disruptive” for the child to spend much time with “a mother that she doesn’t really know or recognize that well.”

Although plausible to some degree, it’s probably more disruptive to him than the child, since the parties are not a couple anymore. While children do need routines, they are more resilient than we tend to think. More importantly, however, they also need both of their parents.

A liberal visitation arrangement is almost always available, except where it truly would not be in the child’s best interest.

Fortunately for the soldier, the outlook for the soldier’s situation is good: the Court issued a temporary order yesterday granting liberal access to the child.

As a former service member myself, it’s disappointing to see that when push came to shove, the family care plan was not really worth the paper it was written on. As an attorney, however, I am not surprised. Private agreements are good to have, but they are not worth much if they cannot be enforced when they are not honored. And despite everyone’s good intentions, people may still end up in court to resolve the dispute. The soldier mentioned here racked up over $6,000 in legal fees as a result of this case.

People are people, and sometimes they change their minds regarding the agreements they make. We are emotional beings, and our decisions often ebb and flow with the tide of our feelings. In domestic relations, this is extremely common and a trip to the courthouse is often inevitable when the parties cannot agree about the care of the child(ren).

In one sense, married couples that divorce have it a bit easier in that there is far less ambiguity once the couple divorces – the Court will determine custody, support and visitation rights as part of the divorce. Unmarried couples don’t have the benefit of court oversight when dealing with property, custody and the other matters incidental to a break-up.

However, unmarried couples that have children have the same parental rights and responsibilities as married couples, and should seek a formal arrangement if they cannot agree on the issues pertaining to the child, especially when access is disputed. A mother or father doesn’t have the wholesale right to deny access to children. Sometimes, when drama runs deep, a court order is the only way to ensure that the noncustodial parent has access.

In many respects, it is better to obtain an official adjudication of rights, as it erases most of the ambiguity surrounding the parties’ rights and the decisionmaking process. If you and your ex can agree on any of the pertinent issues, a court will likely incorporate any agreements you make into the formal order.

If you and your ex don’t get along, don’t wait until the drama escalates too much before suing for custody. That is more likely to bring on additional legal fees due to petty motion practice.

One other thing to take away from the article is that for military families, you need to be aware that JAG isn’t going to help you with a custody dispute. That’s not their job.

While JAG does assist with administrative tasks such as preparation of wills, they are not your personal counsel unless you are subject to discipline under the Uniform Code of Military Justice (UCMJ) and you elect to have a JAG officer from the Trial Defense Service represent you. TDS lawyers are like court-appointed attorneys. You can still elect to retain your own civilian counsel to represent you in the event that you are subject to disciplinary action.

*Reminder: notice