September 06, 2008 (Original publish date) • By Dennis Beaver
Barbara and I divorced when our son, Ryan, was four. Barbara was given physical custody. I remained in our small San Joaquin Valley farming town, have always provided support and have a close relationship with Ryan.”
“He is 13 now and is doing things which are more serious than normally difficult teenage behavior. The owner of our neighborhood market caught him stealing. He’s smoking, and hanging out with some pretty tough characters. His grades have fallen. He is angry much of the time, and admits to having no guidance from his mother.
“When I discuss this with Barbara, she tells me to stop being judgmental, all kids steal, and it is no big deal. Smoking? Since she smokes, it’s normal for Ryan to want to smoke and not a problem if he does! She says that kids need to grow up and find their own path, pick their own friends, and if he doesn’t like school, it’s the fault of the teachers for being so boring. She believes it is no longer necessary to discuss right and wrong, or other issues concerning his choices.”
“Based upon these things, do you believe I could get a change of physical custody? Thanks, Terry.”
Rejection of sound advice — the immaturity of youth
In speaking with Terry, he admitted to “dating Barbara less than a year before getting married, when we were both only 20, and became parents at 21. My parents and close friends warned me that she seemed to be very immature, and did not show good judgment, but my own immaturity led me to think that she was an exciting, free spirit.”
That “free spirit” was about to force him back into court to protect his son.
Custody is never permanent
While the money issues of a divorce can be permanently resolved, custody and visitation are always subject to modification if conditions “significantly change.” We refer to this as Continuing Jurisdiction of the Court. In plain English, this simply means, “It is never over.”
Anyone involved in a custody or visitation fight who even so much as thinks they’ve won has it all wrong. There are no winners in these battles, but a lot of losers, usually the children. In the early years of my law practice, I virtually lived in Divorce Court, where it was common to see Round One, Round Two, Three, Four, in repeated efforts to win back custody or change visitation based on claims of a Change in the Circumstances of the Child’s Welfare.
I have a great deal of sympathy and respect for the judges and their support staff who work in our Family Law Courts. They are witness to more sadness — more tragedy — than most people could experience given several lifetimes. Family Law judges make life-altering decisions every day in what can be one of the most bitter and potentially dangerous places on earth: Their courtrooms.
In one sits Judge “Sandra.” That’s not her real name, as I always protect the identify of the many judges who read this column and e-mail or phone in comments. Sandra practiced Family Law before becoming a Superior Court judge in a mid-sized Northern California town. She views the issue this way:
“A mistake some parents make is in believing that once a custody order is made, that’s it, the other parent is powerless to do a thing. This is absolutely wrong. In many ways, the job of being a good parent is even more difficult after you’ve gone through a custody fight. It could be the other parent, grandparents, family members — someone will be continually taking a close look at your parenting skills. If your view of appropriate parenting clashes with accepted standards, expect trouble.”
What must be shown to change custody
Custody and visitation “is not something courts will change unless there is a real need to do so,” Judge Sandra stressed. “This is another area where the public has some real confusion. There needs to be a significant change in circumstances to warrant a change,” she added.
“It could be something simple, such an asthmatic child exposed to cigarette smoke from other household residents, but in general, courts look at anything which threaten stability of the home life or negatively impacts the child’s upbringing.”
What, specifically, has been found to warrant changing custody? The answers aren’t hard to find and include: Unhealthy changes in the lifestyle of a parent, a destabilized or dangerous household, ignoring the child’s basic physical needs, abandonment, neglect — physical and emotional — a parent’s drug or alcohol abuse, and on it goes. Interestingly, in some cases, the age at which the parents were married plays a role.
“Your reader was married and became a parent at a young age, and let’s just assume that his description about Ryan’s mother is accurate. To a lot of 20 year-olds, married with a baby at a time when most of their friends are just discovering themselves and the freedom of living on their own, a child may not be seen as a blessing. Those years you could be spending getting an education, travel — growing up — are instead, to some, a prison,” she observes.
“Escape often leads to young children being left alone while the parent with custody goes to bars or out with friends. It is an excellent way to lose your kids,” Sandra told me. “The numbers of parents who should never have had kids in the first place is more than amazing. But just try to tell some high school students that all it takes is one mistake and the party’s over; you’re a mom or dad and all those cool plans you had for life after school are now permanently changed.”
“While there are always two sides, your reader needs to immediately retain a good family law attorney who should objectively evaluate the situation. From what is described in his e-mail and your discussions, this 13 year old is at risk,” the Family Court judge concluded.
Parents have a duty to their kids. Theft is wrong, legally and morally. Smoking is a known health danger. Hanging out with the wrong people leads to trouble. Good parents try to keep their kids away from the wrong influences, and if that is “being judgmental,” then, good, because that’s what defines a parent who understands the job.
Parents are supposed to be judgmental, and those who aren’t are just plain cowards, in my book.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.