Written by attorney William Tyler Moore Jr

Preparation for custody/visitation litigation

The key to success in almost everything is preparation. Forty something years ago, a drill sergeant told me and forty other privates, that “prior planning precludes … poor performance." Actually what he said was a little cruder. But the adage is nevertheless true.

Hopefully when you are divorced, the family litigation in your life is over. Your experience with lawyers, courts and nasty fights with the ex-spouse is at an end. Yet as practical matter, that is often untrue, especially if there are children involved. Visitation orders and child support orders generally apply until the child is 18 or graduates high school, whichever last occurs.

You can usually tell by the relationship, good or bad, that you have with the other parent, if you will end up back in litigation over the enforcement or modification of support or custody orders. Regardless of your expectations or the relationship with your exspouse, it is a good idea to document and prepare for war, hoping that you will not have to fight.

By documentation, you should start with keeping a calendar. Keep track of the visitation specified in the court order on the calendar. If for some reason visitation does not occur as specified, make a note of the date(s), why the visitation didn’t happen (what you were told, if anything about the reasons for non-visitation) and when you were told or not. If the ex-spouse is late coming to pick up the children or late bringing them back, keep a record. There may be valid reasons for the tardiness, there may not be good reasons, but keep a record of it.

Make photos of any text messages that you want to preserve for the future. People often send texts without thinking about the likelihood the texts will reappear in future litigation. Cooler heads don’t text or e-mail anything they would not want a third party to read at future time. Remember that yourself before you fire off a missile in a fit of anger. It likely will resurface at an embarassing time and you will need to explain it, if you can.

Likewise, keep track of e-mails involving visitation or parenting issues between you and your ex-spouse. Save them, back them up, preserve them. You may want to use online services such as OurFamilyWizard® and utilize the tools made available there. If you and your ex-spouse will agree to utilize OurFamilyWizard® and similar sites, a third party will have the communication records—all of them at your disposal.

Written records are often more complete than a recollection of the contents of a conversation, unless the conversation is recorded. Be aware of your local laws involving the recording of telephone conversations. For instance, in Texas, so long as one party is aware the conversation is being recorded, it is not illegal to do so. It is a good practice, in my opinion, to tell the other party that you are recording the conversation. It will help keep the conversation civil and appropriate. Or is should do so. If not, then the other party will end up trying to explain his/her behavior.

Keep a phone log also of calls to and from the ex-spouse by you and your children.

Keep track of the children’s special occasions which the other parent does not attend. There are birthdays, school functions such as Halloween carnivals, home-room parties, open houses, football games, volleyball games, cheerleading competitions, etc. If a parent doesn try to be involved in the child’s life, then it’s hard for that parent to try to get more time with the child from the judge. However, it is up to the primary or custodial parent to make sure the other parent knows about these activities. You cannot rely on your child to communicate that type information to the other parent. If your ex-spouse does attend these events, then your child is the winner. If not, that spouse is the loser.

Do not use your child to communicate your expectations, goals, demands, or comments to the other parent. That is not the child’s responsibility. If you do so, it will come back to haunt you when you are in court.

If the other parent misbehaves to the point that calling law enforcement is appropriate, do it. Making a scene in the street, refusing to leave when asked, making threats, assaults, and acts of criminal mischief, all justify calling law enforcement. You do not have to tolerate uncivil or criminal behavior by your ex-spouse. A police report will also provide a source of an independent witness in the future and will teach most people to behave.

Your job as a parent is to keep the child out of the fight between you and your ex. The child was not a party to the divorce. He/she didn’t marry the other parent nor divorce the other parent. Judges do not like to hear about parents involving the children in their disputes. Encourage your children to love, respect and visit the other parent if at all possible. Occasionally, it is not possible, but try to do so.

In short, prepare for subsequent visitation battles so you are ready if they occur.

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