Prove Your Fitness Not Your Spouse’s Incompetence

There may be several times in divorce litigation that a parent is examined regarding custody and/or parenting time issues. These examinations may include investigations by friends of the court; psychological and/or psychodiagnostic evaluations by a forensic psychologist, psychiatrist, or social worker; oral depositions; written interrogatories; and other forms of discovery. Such examinations may also include direct and cross-examination before a judge. The first inclination a party typically has is to list all the bad attributes of his or her spouse. This is almost always a bad idea.

The issue in a custody/parenting time dispute is your ability to parent rather than your spouse’s inability to perform the same responsibilities. Your list of complaints is typically used to argue you are unwilling to facilitate a close and continuing relationship between your child and your ex-spouse. Rarely do these complaints help a party win a custody or parenting time dispute.

In Michigan, child custody and parenting time disputes are governed by the Child Custody Act of 1970. MCL 722.27 et seq. MCL 722.23 list the factors the court must consider in determining a child’s best interests. Factor J involves the willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. An investigator in a child custody or parenting time dispute will often interpret a long laundry list of complaints regarding the other parent as a failure to meet factor J requirements. Thus, in many custody/parenting time disputes, listing complaints about the other parent may hurt the complaining parent’s case.

When preparing a client for a custody/parenting time investigation, we focus on the parenting abilities of the reporting parent as well as the nature of the close and healthy relationship between the children and that parent. Before the examination, the reporting parent should prepare a list of his/her positive parenting attributes. One method of preparation is to consider a “day in the life of scenario.” The reporting parent should be prepared to discuss in detail a typical weekday and weekend with the child/children. While a description of a typical weekday may seem insignificant in a custody/parenting time investigation, nothing could be further from the truth. This is an opportunity to show the investigator a parent’s intimate knowledge of his or her child/children’s teachers, doctors, and daycare workers.

Only after all of the positive attributes of the parents have been laid out should that parent consider discussing the other parent’s negative attributes. This list of negatives should typically be discussed last and with great sensitivity. Each issue should relate to important parenting skills and not to varying styles of parenting. The investigator will attribute complaints against the other parent as anger, jealousy, and sour grapes. If complaints regarding the other parent’s parenting skills must be discussed, the reporting parent should be clear that these issues adversely affect the child/children and are not the result of the normal animosity that is largely present in most divorce and custody cases.

For every rule, there are exceptions. Cases must be closely evaluated and should never be decided in a “cookbook” fashion. Major issues regarding abuse and neglect, substance abuse, or significant mental illness should be discussed immediately. When a child is at risk, all other divorce/custody/parenting time issues must take a backseat. In most cases, the adage holds true that it is easier to prove you are a good parent than to prove that the other parent is a bad one. Focusing on your relationship with your child/children instead of your spouse’s deficits will serve both you and your child/children well and likely result in the best outcome.

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