PS Alice, some bed time reading...
Good vs Bad Co-Parenting
A companion article offers tips for being a good co-parent, addressing the “positive” side of the equation –
what steps you can take to help your custody case. This article focuses on the opposite – avoid the negative acts that will peg you as a bad co-parent in the eyes of the family law judge. Even if they feel “right” at the time, just don’t do it.
The Other Side is a Bad Co-Parent – Why Should it Matter?
It happens to the best of parents – frustration levels rise, and after taking whatever indignities the other parent has been throwing at you for months, you finally give back as good (or bad!) as you get. And by doing so, you’ve taken a step towards becoming a bad co-parent, something that will later hurt your child custody case.
The other parent is a narcissist, evil, an abuser, etc – why is it bad co-parenting to fight back? I have had multiple cases where a custody evaluator found domestic abuse by one parent, but then “dinged” the victim spouse for bitterness and hatred, and for alienating the children from the abuser.
It’s not about whether it’s fair to blame the victim (it’s not fair!). But a family law judge has to look out for the children’s best interests, and not turn a blind eye to bad acts by a parent with a grudge, no matter how justified or understandable that grudge may be.
Bad Co-Parenting Hurts Children
I am a parent, but not a co-parenting expert. Having said that, trust me when I tell you that your children will thank you later if you don’t use co-parenting to retaliate against the other parent. There are plenty of mental health and parenting professionals who can explain the very real and positive psychological impact on children of being a good co-parent (e.g.
Psychology Today or the
Urban Institute).
This article does not delve into how bad co-parenting is harmful to the children – instead, it’s a practical primer on bad behavior to avoid at all costs from a law firm which has seen first-hand the self-inflicted harm they cause in hundreds of child custody cases. There are
better ways to deal with a toxic parent on the other side than to retaliate with parenting.
One Bad Act Can Offset Other’s History of Bad Co-Parenting
When both parents commit bad acts, judges tend to take a “plague on both your houses” approach. Even though your ex dropped the “F-bomb” 10-20 times, once you finally swear back, you’ve lowered yourself to that level. And instead of having a winning issue where the judge sees the contrast between you and the bad co-parent, the judge sees two bad parents who
both let their grudges interfere with the children’s best interests.
In short, the ratio of “badness” matters little – the judge won’t view the other parent as 10x as bad. Just one little bit of bad co-parenting by you has negated a whole pattern of bad acts by the other side, and therefore negated what should have been your advantage.
This oft-repeated quote is most definitely true in child custody cases. Turning the other cheek and avoiding retaliation helps your custody case more than you would believe. Don’t fight the bad co-parent on his level – he wants to drag you to the gutter, because it’s where he’s comfortable fighting. A good parent will lose a race to the bottom, and negate an advantage she would otherwise have in a child custody hearing.
No Profanity or Insults
Profanity, especially the “serious” obscenities, is often evidence of an anger issue, and is bad co-parenting on multiple levels. When directed at the other parent, it’s potentially emotional abuse. When directed at the kids, it’s most assuredly child abuse. And when said to the children about the other parent, it’s a form of “parental alienation.”
Rarely will profanity help your custody case, and domestic relations judges don’t accept the “it’s just the way I talk” excuse. I’ve read more custody evaluations than I can count where the children expressed concern to the evaluator over one parent’s abusive words, and the custody recommendations went against that parent.
Every email or text you send is a potential exhibit against you in court. Every conversation you have with your ex is potentially being recorded. Being polite 9 times out of 10 won’t protect you from that 10th email where you went on a tirade against the other parent – that’s the email which gets played in court. Seriously – no matter how well the other parent can push your buttons, you have to resist the impulse to fight back in kind.
No Derogatory Nicknames
This is related to the last point – in your communications with the other parent (texts, emails, calls, etc),
refer to the other parent by their name. Don’t call him a loser, or her a greedy
witch – it seriously won’t end well. And avoid false formalities in emails (e.g. (Mr. Smith, instead of James). This “over-politeness” comes across as sarcastic, not genuine courtesy.
Similarly, even in the privacy of your own mobile device (i.e. your phone or email address book)
refer to the other parent by their name. Period. When you have a less-than-flattering nickname for your ex in your mobile phone and your lawyer needs screenshots for court, the judge will see your nicknames of “loser”, “sperm donor” or even “baby mommy”, and consider them dehumanizing and offensive, not cute.
No Venting or Criticizing
It’s not easy – you once loved the other parent, and had children together, and now he’s gone extreme narcissist on you. But if you absolutely have to vent, stick to a counselor, or even friends or (adult) family, not to the other parent. This means no:
- Stream of consciousness, rambling emails to get things off your chest
- Emotions rarely help. Crying, or saying “my baby is my world” does not impress custody evaluators or judges.
- Accusations about the other parent – (Calling them selfish, unreasonable, etc). Your accusation won’t change the other’s mind, but instead backfires as it is evidence of you being difficult.
- Lectures – even if you think you’re being helpful, unless the other parent asks, don’t offer critiques of his parenting or suggestions for improvement. They are not usually appreciated.
- Argue. Even if the other side baits you, don’t rise to the challenge and argue back – it’s pointless. Deny a false accusation w/o elaboration, and if a whole email from the other side is nothing but spewing vitriol, ignore it.
Facts Speak For Themselves. You do not need to assist by pointing out to your ex that her behavior is reprehensible – rarely will it cause a change in behavior. If the other parent is behaving badly, the evidence you present to the judge or custody evaluator will speak for itself without you having to point it out to the other parent.
And the flip side is also true – if the other’s conduct is not as bad as you think, you complaining about it will not only convince a judge that the behavior was bad, but instead may backfire on you as the judge considers you as too quick to criticize.
It is hard to recall a child custody case where one parent’s criticisms to the other helped the critical parent’s case, but I’ve seen examples where it has hurt.
Don’t Badmouth Other Parent to Children
We discussed in a blog post whether a
parent has a first amendment right to badmouth the other parent. Who cares? Just don’t do it. Younger children can be harmed by it, and older children resent it. And in both cases if it’s happening, not only will the other parent find out, but if there is a custody evaluator appointed, the kids will tell her, so the family court judge will also know about it from reading the expert’s report.
All the little tricks, subtle jabs, telling the kids to ask the other parent to buy something because he hasn’t paid his support, etc are worse than bad co-parenting – they are potentially forms of parental alienation. And they reflect poorly on a parent’s ability “to encourage the sharing of love, affection, and contact between the child and the other party” – one of the best interests factors a court is required to consider pursuant to
C.R.S. 14-10-124(1.5)(a)(VI).
Never Interfere with Other Parent’s Time
Follow the parenting schedule. If you want to take a trip, unless your ex consents, it must be solely during your parenting time. If your ex doesn’t pay support, deal with that through
contempt of court, not by denying him parenting time. If your ex is late for an exchange, the parenting time is not forfeit (except if there is a specific forfeit clause in a parenting plan, which would be unique) – instead, your ex has to make other arrangements to pick up the children.
If your ex doesn’t give proper notice for vacation dates, or an out-of-state parent doesn’t give a required 30-day notice for a weekend, don’t deny the time unless you truly have unalterable plans. and even then, confer with an attorney first. A judge will take a dim view of putting the kids in the middle of a battle with your ex.
If you think your ex is endangering the children, or the kids refuse to go, talk to your lawyer. The advice will rarely be to unilaterally withhold the kids – instead, it may be to file a motion, or in more serious cases, contact DHS or the police (don’t do this absent talking to an attorney first). But unless the court signs an order modifying the parenting schedule, disobeying that schedule is not just bad co-parenting, it’s violating the court order.
Don’t Be Inflexible
Judges hate clock-watchers! Unnecessary rigidity for the sake of it is the hallmark of a bad co-parent. If the other parent needs to exchange the kids late, let her, even if she’s been inflexible in the past. (Remember, you’re doing this for your own benefit, and to help the kids, not because the other parent deserves your flexibility). And don’t ruin the moment by insisting that you get an extra couple of hours of parenting tacked onto your week to make up for it. A parent with equal time has approximately 4386 hours with the children every year – does a missed 2, 10, or even 100 hours, really matter in the scheme of things?
If the other parent proposes swapping a weekend or holiday, if it works with your plans, it’s a good idea to agree, and be seen as flexible, even if the other parent always refuses your requests for change. I had a case with a poorly-drafted parenting plan which omitted Father’s Day, and the mother withheld the children from the father because it was “her weekend”. At a hearing two months later, the judge did not congratulate the mother for sticking to the terms of the parenting plan, but completely blew up at her for maliciously depriving the children of seeing their father on “his” special day.
And no matter how bad the other parent, never refuse permission to bring the children to a special event (wedding, family reunion, even a funeral), even if it’s during your parenting time. Not only are these important for the children’s memories, but you will come across as unreasonable.
Finally, unless a parenting plan prohibits a specific person from having contact with the children, never refuse the other parent “permission” to use a friend or family member to pick up the kids for her parenting. And you have no right to demand a background check on someone – it’s up to each parent to determine whom they trust during their own parenting time.
Don’t Threaten, or Actually Call Police Or DHS
More often than not, calling DHS or the police on the other parent backfires. The state does not thank you for doing your part to protect Colorado’s youth, but instead the judge views it as interference with the other’s parenting time.
If you have legitimate evidence the other parent is truly abusing the children or committed any other crimes, talk to your attorney to see before making any threats. Similarly, if the other parent is in the military, don’t call his chain of command to get him in trouble, report him for adultery, etc. It will invariably backfire on you.
Don’t Record/Photograph Kids as Forensic Evidence
You want to take pictures or videos of the kids doing cool family things? Great idea, it preserves memories, and just in case your parenting is ever attacked, the proverbial “picture is worth 1000 words” means the judge can see happy, smiling kids in your care.
But if your son arrives home and has a bruise – do you treat him like a criminal being booked, and have him remove his shirt or pants to take close-up photos, causing him to think he did something wrong? So many times a photo doesn’t do justice to a bruise or scratch anyway, so unless they are serious bruises, the repercussions with the judge may be worse than the alleged abuse you’re trying to prove. Having said that, a picture of a clearly visible bruise on an arm or leg is probably okay, if you don’t make a big deal about it when taking the photo.
As for recording, Colorado is a one-party consent state – it is legal to record your own conversations
C.R.S. 18-9-304 or telephone calls.
C.R.S. 18-9-303. (Note that per that statute, it is a crime to eavesdrop, or surreptitiously record someone else’s conversation).
Similarly, while recording your own conversations is legal, both the judge, and the children when they get older and invariably learn of it, would perceive it as a betrayal of trust just to gain a litigation advantage. In decades of practicing law, I’ve only had 2-3 cases where I thought about using such recordings in court, but have still never actually done so. While I can conceive of the possibility a recording of the child may do more harm than good, it has not yet happened.
And other than special events, no video recordings. If you sit back and record a normal conversation, especially when talking about the other parent, it sends a horrible message, and the judge knows it.
Note that these concerns only apply to recording the children. It’s fine to surreptitiously record your interaction with the other parent (as long as you’re in Colorado – if not, check the law of your own state). And sometimes such recording may be a good idea, if there is a history of problems, as they may protect you against false claims, or invaluable to prove the other’s bad behavior, particularly if the other parent blows up or uses profanity towards the kids.
Don’t Withhold Information
I have never seen a parent get in trouble with the judge for telling the other parent
too much information about the children, but the opposite is not true. If something (good or bad) happens to the kids, tell the other parent, and even send pictures. Here is a non-exhaustive list of the items you absolutely
should tell the other about:
- Grades/report cards
- Medical information (appointments, treatment, etc)
- Day care (and make sure other parent is listed as a contact)
- Children’s activities
- Milestones (losing teeth, religious rites, etc)
- Information about your own life which affects the children (cohabitation, new kid, illness, etc)
Even if you’ve given the same information in the past, if the other parent asks again, don’t withhold iit and say “I already told you”, but provide the dentist name & number again.
Don’t Make Unilateral Decisions or Changes to Status Quo
When parents have joint
decision-making, don’t make decisions on your own – it is bad co-parenting, and will hurt you. (Even if you have sole decision-making, you almost always still have to keep the other parent informed). While if a court may not find all of the following examples to be actual violations worthy of contempt of court, you still hurt your case by making these kinds of decisions unilaterally:
- Medical – selecting or changing doctors, or consenting to non-emergency treatment, therapy, etc
- Education – selecting or changing schools, tutoring, etc
- Day Care – selecting, changing or ending
- Activities – good to discuss regardless, but critical if it overlaps the other’s time or the activity is potentially risky
- Major Appearance Changes – radical haircuts (or a child’s first haircut), piercing or tattoos
- Major Lifestyle Changes – if a child never had vaccines, don’t start unilaterally. If a child was raised vegetarian, don’t start with meat unilaterally. It’s not to say you are never allowed to do it, but talk to your attorney first.
- Driver’s License
Sometimes it’s a fine line between a major decision or a “day to day” decision which occurs wholly during your own time – if in doubt, you won’t get accused of bad co-parenting for erring on the side of conferring. The opposite is not true.
