How to Navigate a High-Conflict Custody Battle in Court
"You will never see my children again!!"
"Stop harassing me! Stop trying to talk to the kids!"
"I know it's your turn to have them for Thanksgiving, I don't care!"
Have You Been Here?
At 5:00 pm on Friday you show up at your ex's house to pick up the children like you agreed on the phone. The problem is the children are not there. After waiting for two hours you receive a text message telling you to go to hell you won't be seeing the children until...well, ever.
You pull into your ex's driveway at noon on Christmas Eve because that's what your ex did last year, and you send a text message to announce your arrival. Since you didn't have the kids last Christmas you are very excited to have them this year. Your ex texts back to let you know she took the kids to see her parents in Utah and too bad for you.
After calling the children every night for two weeks with no answer and no return phone call, you are both worried and really missing the kids. You get an email from your ex stating that by calling "her" kids you are harassing her and she is blocking your number, so "her" children will never speak to you on the phone again.
I am not a lawyer. This is not legal advice. Seek legal counsel in your state before you file any motions.
A high-conflict and alienating co-parent can make life very difficult for all parties involved. This is especially true when custody agreements are vague and open to interpretation. If you are a non-custodial parent (NCP) trying to co-parent with a high-conflict ex, one of the most important steps you can take in your parenting journey is to protect the rights of your children by drawing up a very specific court-ordered custody agreement.
This article will take you step by step through some of the most common sections of a custody agreement and offer specific advice on how to word your court order so that there is little wiggle room for the high-conflict ex to wreak havoc in your life.
The information in this article is primarily for non-custodial parents who want to maintain a strong and steady presence in the lives of their children but who have a difficult time due to the behaviors of an ex-partner. It is the right of every child to have open access to both parents, and a solid court order is the first step to gaining and maintaining access.
Have you or someone you love ever been denied parenting time by a high-conflict ex?
Pick Up, Drop Off, Overnight
One of the most important parts of a strong custody agreement in a high-conflict situation is to have very specific language describing parenting access. Any language such as "as the parties shall agree" or something as vague as "the first and third weekends" will not work with a high-conflict ex-partner. A high-conflict ex will never agree to anything reasonable or he or she would not be considered a high-conflict ex. A very specific parenting schedule also gives the children involved more structure in their schedule, so that they will know what to expect when it comes to time with their parents.
As you plan your custody agreement, think about very specific times and days that should be included to ensure smooth transitions for your children. If possible, exchanges should take place in a location where only one parent has to be present, such as before or after school, or in a neutral third party location. Some examples of specific language for parenting access are:
Summer parenting time begins the first Friday following the last day of school. Exchanges will take place every Friday at 6:00 pm at the police station at 1234 First Street. The children will remain with each parent for one week until the Friday before school resumes. At that time the school year custody schedule will resume.
Visitation will take place every other weekend beginning after school on Friday, or 5:00 pm if there is no school, and will continue to Monday morning when school begins, or until 8:00 am if there is no school.
Many NCPs are still forced into every other weekend parenting by the court system. For these parents, phone access is crucial to maintaining a close relationship. Phone access with a high-conflict co-parent can be a nightmare. Just as specific language is needed to help avoid conflicts about overnights, specific language is needed to help NCPs maintain phone contact with their children. One way to maintain phone access is to have specific days and times for phone calls written into the parenting plan. An example of specific phone language is:
- The father shall have phone access to the children every Sunday, Tuesday, and Thursday from 6:00 pm to 6:30 pm.
If the other parent is particularly high conflict it is also a good idea to include language that gives the child privacy, such as:
- The children shall be given privacy in a room separate from the custodial parent during phone calls. The children are not to use speaker phone.
- Specific days
- Specific times
- Specific locations
Another issue that frequently comes up in high-conflict custody situations is transportation. Once again, the parenting plan should include very specific language that details who is responsible for picking up and dropping off the children. It may be easier for one parent to do all the traveling, or it may be better to have each parent do an equal part. As previously stated, if it is possible to do exchanges at school, do it! One way to state this in a parenting plans is:
The party beginning their custody time is responsible for picking up the children at the other parent's residence.
If your exchanges look like Iraq circa the Shock and Awe Campaign of 2003 then I highly suggest an exchange at a police station. Language for transportation could look something like this:
Each party shall be responsible for transporting the children to the police station at 1234 First Street for custody exchanges. Each party is responsible for their own cost of transporting the children.
If you deal with a particularly nasty ex-partner he or she may not allow the children to go with anyone other than you for an exchange. This is fine unless your leg falls off or your house explodes or any number of other normal and run-of-the-mill scenarios happen to keep you from the exchange. For cases like this always include language about third party pick ups. For example:
Any adult over the age of 21 with a valid drivers license may pick up the children on behalf of the mother or the father.
Holidays to Consider
Parenting access around the holidays can be a particularly nasty affair. Holidays seem to bring out the worst in high-conflict custody situations. As with regular parenting access during the school year and the summer, holiday times should be specifically stated in the parenting plan. Here are some examples:
- Halloween is from 9:00 am to 9:00 pm on October 31.
- Thanksgiving begins after school on the day school is released for Thanksgiving break or at 6:00 pm on the Wednesday before Thanksgiving, whichever is earlier, and continues until Sunday at 6:00 pm.
Although it may not be a popular idea among divorced parents, I highly recommend not splitting the actual day of the holiday in half, such as placing an exchange at noon on Christmas. Remember that the children in high-conflict cases also experience tension and bad feelings during an exchange. Although each parent may want to see their child on the holiday, it is a good idea to let children have a stress-free holiday without having to worry what will happen when it is time to go to the other home.
Do both parents attend children's events?
In most custody situations it goes without saying that both parents are welcome to attend the child's events regardless of whom the child is with on that day. In high-conflict situations, unfortunately, this is not always the case. For this reason, it may be a good idea to have specific language in the parenting plan that states both parents are welcome and encouraged to attend all events. For example:
- Both parents are welcome and are encouraged to attend all of the children's extra-curricular and school activities.
Of course, each situation is different, and you will need to reflect on your situation to determine if it is best for both parents to be at every activity and then conduct yourself accordingly. In some extremely high-conflict situations, whenever both parents attend an event, there is a scene. A dramatic and public scene is decidedly not in the best interest of the children.