One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement. I have several matters ongoing now where that is occurring.
In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances. Put another way, they were only going to resolve visitation if my client made financial concessions. The bad faith of the tactic was evident.
In fact, in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits. This does not even really come into play in high income cases that exceed the Child Support Guidelines. That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money. However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties.
The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case. At the outset of a case, the parties are required to attend a Parent Education program given by each county. After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect. Only then, do you get into custody and parenting evaluations with experts, etc. Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.
A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows: one parent is the traditional stay at home parent – the other is the Type A executive type that leaves the home at 6 a.m. and doesn’t return home until 7 p.m. Sometimes, that person travels substantially for business as well. The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the parent that works out of the home demands either custody or a 50-50 parenting arrangement.
In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip. That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents.
That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts. The children are now made part of the process and have to meet with the expert several times. Their teachers may be contacted. Their doctors and therapists may be contacted. The parties’ therapists may be contacted. Other collateral sources may be contacted (neighbors, coaches, family members, etc.) The price to pay on the family, aside from the legal and expert fees, is high – especially when the issue is for bargaining only.
Don’t get me wrong. I understand that there are good faith custody and parenting disputes that require this process. While the toll is still the same, that may be unavoidable. However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip. The collateral damage may be great.