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“Can I do something” is rarely the right question to ask

A common question I, and I suspect many attorneys, get asked are variations of “can I….?” A common variation of that question, almost always asked in a mock-shocked tone, is “can the opposing party/attorney…?,” “can the guardian…?,” or “can the judge…?” That variant often accompanies a story in which the possibility being considered has already occurred, leading to the smart aleck answer, “if it already has, it clearly can.”

The question these folks really should ask is “what are the potential consequences if I (or the opposing party/guardian/judge)….?” There’s numerous things folks can do that they are better off not doing. I’ve yet to see a court order that prevents a parent from attempting to crush the child’s skull in a vise, but I have no doubt a family court judge would take a dim view of the parent who did that.

More typically I get calls from parents wanting to know if they can keep the child from the other parent or move the child out of state. If there’s no custody order, any mother can do that. If the child was born of a marraige and there’s no custody order, any father can do that. However the ramifications of doing that vary. If the other parent is completely absent or unfit, there’s likely to be little ramification from removing the child from the state and those ramifications are typically easy to resolve. However, if the other parent has been actively involved with the child, such actions might cause that parent to lose custody.

I have seen parents lose custody because they asked an attorney whether they could do something, were informed that they could, but didn’t ask about the potential consequences for doing so. Those parents did things that they weren’t legally prohibited from doing, but that were so detrimental to their child’s best interests that a family court judge awarded the other parent custody.

“Can I” questions are generally easy to answer, especially when the question calls for a “yes” or “no” response. However “should I” questions or “what are the ramifications of” questions require some understanding of the situation and typically call for a consult to even make an educated prediction. Consults take time and experienced attorneys charge for them. Thus folks often avoid asking such questions, finding answers to “can I” questions sufficient for their immediate desires. As noted above, the consequences for asking the easy question and settling for the easy answer can be traumatic.

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  • My stock answer: Anytime you ask a lawyer a question beginning with can or is it possible, the answer is yes. It may not be wise. It may not be easy. It may not be cheap. It may not be quick. I may refuse to seek the relief or defend the case, but the answer is yes.

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