The child custody interrogatory that often reveals more than it should

It’s typically hard to get useful information from child custody interrogatories.  One question that often reveals more than it should is “Is there anything about the opposing party that renders him [her] unfit to have sole physical custody of the children? If so, describe with specificity this unfitness.”

The gap between being a fit parent and obtaining sole physical custody of a child is huge.  Being merely “fit” is a pretty low standard.  It basically means if the other parent was absent could this parent adequately care for the child or would the child be better off in foster care.  Most parents are fit; less than half obtain sole physical custody (less than half because there are some cases in which neither parent is awarded custody).  In a custody case between two parents it is the better parent who generally obtains custody.  Only in a case in which one parent is unfit, is the other parent’s fitness a determinative factor.

Since most parents are fit, most of the time the answer to this interrogatory should be a simple “no.”  It rarely is.  Sometimes, the opposing party will answer this question with allegations that rise to the level of parental unfitness: substance abuse, child abuse or neglect, serious mental illness.  Such an answer is responsive but useful.  If the allegations of parental unfitness have evidence to substantiate them, it is a signal to one and one’s client that he or she will have a burden of disproving this allegation at trial to be considered a candidate for custody.  Further, if the allegation has sufficient evidence to make it likely to be proven at trial, an astute attorney will counsel one’s client to remedy these fitness concerns and limit his or her goals (perhaps seeking visitation rather than custody).  However, if the allegations lack substantial evidence to support them, the response can be used to show the other party is unreasonably resistant to one’s client’s relationship with the children.

However, much of the time, the answer to this interrogatory is not really responsive.  Rather than listing fitness concerns the answering party will list numerous reasons he or she should obtain sole physical custody of the child.  Typically these reasons will mix solid custody issues (the answering party has been the primary caretaker) with the picayune (the other party sometimes yells at the children or feeds them junk food on occasion).  The result is an answer that makes the answerer look petty and unable to acknowledge the other parent’s good points.  In a close custody case, displays of such antipathy towards the other parent’s role as a parent is sometimes enough to tip custody to the parent who displays a more encouraging attitude.

I have never understood why attorneys allow their clients to engage in such logorrhea when answering this interrogatory but they frequently do.  Such responses are a gift from the litigation deity.

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