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Custody: The Red Flag of Family Law

By Robert L. Katzenstein

“Niblick, of course I’ll give him Niblick, but never custody.” A mother of two children ages seven and five had come to my office because she was served with a Custody Complaint from her separated husband.

“How dare he ask for custody”, she shouted, visibly upset.

“Was he a good father?” I asked.

“Absolutely, he loves his kids”, she replied.

“Did he spend time with them when you were together as a family?” I asked.

“Sure, he was a good daddy. He was responsible and caring”, she countered.

I suggested the “usual whitebread” custody arrangement: the children would live with mom primarily and be with dad on alternate weekends; every Wednesday evening from 5:00 p.m. to 7:30 p.m.; shared holidays (religious and secular); two weeks in the Summer (nonconsecutive); shared Spring and Winter breaks and Father’s Day to dad and Mother’s Day to mom. I called this arrangement “niblick” and my client couldn’t have been more delighted.

Communication was quickly made to other counsel who was agreeable to the suggested schedule; papers were drawn; our respective clients signed them; the documents were entered as a Court Order and litigation was avoided.

This true incident made it abundantly clear that CUSTODY was a red flag to all whom experienced family separations. By simply changing “custody” to a word that I created, it became more palatable for her to accept her situation.

Why is custody of our children so difficult? There are no easy answers. As a father of two adult young women and a family-law practitioner for thirty-one years, I am well aware of the difficulties of raising children with a partner, let alone raising them from two different households. Custody evokes parenting and parenting evokes feelings of possession, pride, anger, responsibility, guilt, happiness, pleasure and angst. To the cauldron of life we add the problem of a relationship gone bad. Now, simultaneously, we have to deal with the feelings of a parent and the feelings of anger, guilt, bitterness, unrequited love and anxiety pertaining to the loss of a relationship.

When dad takes his sons to the ball field on Saturday, they play ball and return home several hours later with dirty clothes. In an intact family, mom smiles and comments, “boys will be boys”. In a separated family, she is heard saying, “Does he have to dirty their clothing?”

When mom goes food shopping with her daughters it is not unusual that extra food is purchased as they travel aisle by aisle through the supermarket. In an intact family, dad will say, “What did the munchkins put in the cart this time?” In the separated family, he may say, “What did my irresponsible wife spend now? Is that where my support goes?”

Clearly, the feelings of the broken relationship color the perspective of how we see the former partner. Easily, the positive parent-child relationship of the intact family may be seen as continuing negative behavior in a broken family.

Courts grant parents custody based on “the best interests of the child” standard. Regrettably, too often we allow ourselves to find the best interest test through skewed glasses. While we may think our hearts to be pure, we may find our vision blurry. It is hoped that we can sharpen our sight and share our children in their true best interest.