Agree When You Disagree: Custody, Opposing Partes, and Getting Along as Best Possible

I am devoting this blog entry in the interests of counseling against bad manners and brutishness.  Inherently, disputes arising out of dissolved marriages or other relationships involving children in common to the disputants, are ugly.  Litigation is nary a cordial concern, and when broken personal relationships and children get involved – the gloves tend to come off.  This writer understands and even sympathizes with this aspect of the human condition – family law disputes carry a potential for so much volatility because (more so than in other areas), one’s emotions are at play; when one “feels”, one “reacts”.  Indeed, this reader would suggest that there is hardly anything like a divorce, paternity action, child support petition, or child custody petition, that can transform heretofore perfectly civil individuals into insensible mortal enemies and mud-slingers.  It is not surprising to see opposing parties in a custody scenario resort to, among many other methods, reporting the other party to Children and Youth Services out of noting more than spite, hiring full time private investigators to track and record the other party, investigating/harassing acquaintances of the other party, etc.  The devices deployed by custody litigants for the sole purpose of making the opposing party’s existence a living hell are numerous, creative, and continually evolving.

However, there is empirical evidence showing that such conduct is, fundamentally, counter-productive.  We take the time and each opportunity to advise clients who happen to be involved in a custody action that a custody “action” does not (necessarily) have to be a “dispute”, and the “other party” does not have to be an “opposing party”.  That is, we urge clients to re-contextualize their pre-formed notions that all legal actions are adversarial and (to the extent possible) suspend their distaste for the other party – no matter how well-founded the client imagines his feelings to be.  Support for this contention has myriad sources – the most significant probably being that the Law underpinning Custody provides that it is the best interests of the child which dictate the terms of a court ordered agreement.  Anderson v. Mcvay, 743 A.2d 472 (Pa. 1999).  As a practical matter therefore, the court will have little tolerance or patience for parties it sees as wilfully vile, spiteful, wilfully dilatory, obdurate, etc.  Conversely, the court will tend to reward a party who demonstrates a certain degree of courteousness and flexibility (or at least gives the perception of being so).  Similarly, the very function of a Custody Order is not a means for sowing further discontent between persons who would rather not be in the same room with one another if at all avoidable.  Rather, the courts’ system for custody proceedings (including a relatively informal mediation session before a Hearing Master) is calibrated to encourage open-communication and cooperation between parties the law assumes are interested first, and foremost, in the security of their child.

Lest the reader becomes confused, this entry is an appeal to good tactics as much as anything.  Custody actions are inherently protracted affairs that will, until the child/children in question attains majority, be litigated and re-litigated.  Very likely, a single Family Law judge in the county wherein the action is brought will get to know the litigants pretty well over the course of many years of periodic hearings, including necessary modifications to custody orders, etc.  Thus, it makes abundant sense for a party to give such judge the best possible impression of him or her, possible.  Put simply, contriving to have a family law judge dislike you, may be fatal to your cause.      

So, if you find your self in the midst of custody “action”, take a deep breath, don’t presume a “dispute” if doing so isn’t necessary, don’t look at the other party as the “opposing” party if doing so isn’t necessary, put away the enmity, don’t use guerilla tactics, and extend the proverbial olive branch – this will save you in the long run.

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