Are we headed to an encyclopedia of child custody restraints (and is that something we actually want)?

Posted Monday, January 29th, 2024 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

This is another blog inspired by last Friday’s guardian ad litem training.  As I enter my fourth decade of practice and acknowledge that my legal career is half over (likely two-thirds over), I find myself increasingly agitated by certain trends I perceive in family law.  I want to resist becoming the old man shaking his fists at the youngsters and reminiscing about the “old days,” but there are trends in family law that I think need to be actively resisted.  And the push for ever increasing restraining orders is one I find well-meaning but counterproductive for parents, children, or family law attorneys.  And it’s only getting worse.

One of the lecturers included a discussion of recent restraints she had litigated.  Her list contained many of the newer items, including many that that parents routinely agree to and then routinely violate.[1]  I’ve written numerous blogs about how these well-meaning restraints are problematic.  However, her list also had restraints I’d never encountered regarding gun storage, life jackets on boats, use of appropriate car/booster seats, and limitations on screen time and video games.

I am not against safe gun storage, children having life jackets on boats, using appropriate car and booster seats, and making children spent time IRL.  Because litigants in family court are no longer parenting children within intact families, restraints that prevent one parent from undermining the other parent’s relationship with the children may be necessary.  However, the bulk of these restraints are merely designed to enforce good parenting.  Intact families parent their children without court orders requiring them to not be intoxicated around the children or requiring them to use approved life jackets if taking their children boating.  No one sees that absence as a problem in search of a remedy.

What is gained by imposing these restraints on parents who are not in intact parenting relationships?  These restraints enable parents who don’t like the other to control the other’s parenting decisions.  Perhaps the other parent is making bad decisions, but shouldn’t the remedy then be to limit or eliminate that parent’s time with the children?  By choosing instead to impose restraints we limit parental autonomy, grant disputatious parents a greater ability to fight, embroil children in parenting disputes[2], and devote judicial and attorney resources to minor issues over parenting decisions.

Further, because some judges consider violations of child-related restraints to be non-purgable—one cannot undo what one has done—they impose criminal contempt sanctions for violations.  How many attorneys have informed their clients that they might go to jail if they agree to the current litany of restraints and then, in a moment of frustration, curse around—not even at—their children?

Personally, I preferred custody litigation when the focus was on who was getting what time with the children and who was making major decisions for the children.  I’ve never seen a need or desire to micromanage parents and I find it exhausting to represent parents who are intent on micromanaging the other parent.  I acknowledge I’m getting old.  Perhaps I lack the patience to argue over silly things. But I do not look forward to a culture in which litigating life jacket requirements or car safety seats becomes routine.  My colleagues shouldn’t either.

[1] Every family law attorney I know acknowledges swearing around their children.  Yet most of these attorneys routinely have their clients agree to restraints against “using profanity in the presence of the children.”

[2] An increasingly common restraint prevents children sixteen years old and younger from attending or watching R-rated movies and prevents seventeen year olds from doing so unless both parents agree.  How old does one think such children are when they first learn they cannot see movies their peer see?  What explanation can you give such child other than “because your parents agreed to it” or “because a court ordered it”?  How satisfied/happy does one think this child will be upon hearing that explanation?

5 thoughts on Are we headed to an encyclopedia of child custody restraints (and is that something we actually want)?

  1. Margaret Braun says:

    I have been the victim of such restraints. Intact families have freedom, including the parents seeking dissolution of marriage who find themselves embroiled in a custody dispute who suddenly have provisions they never practiced when married. My husband’s ex-wife hated me before we went on our first date. She and her attorney decided on a provision that included me not being allowed to write emails for my husband from his email account. My husband and I were opposed to such a ludicrous provision, but our naive (being nice here) attorney suggested it was unprovable and part of negotiating to avoid further litigation- I stood my ground with no success. Forward to years of disgusting, sexually explicit tirades from mentally ex accusing me of writing his emails to her. Two attempts for year long PO’s that were obviously dismissed, but costing thousands of dollars. Ultimately, I was granted a PO for one year after she physically assaulted me while I sat without uttering a word to her. The most damaging part of buying into her bs was my step kids having to hear the rage ex screaming daily about emails written by my husband…to think an attorney would entertain such nonsense- never happened until recently w. Entitled exes seeking revenge through provisions that would never apply to intact families or their families prior to divorce. I agree with you completely unless a parent’s mental health or substance abuse has worsened and there have been instances that negligence continues and warrants such safety provisions. Emails and who writes them have nothing to do with the kids or their best interests. Unsolicited advice: Never agree to such bull during negotiations. It will end up biting you in the rear end. $$$$$Your argument: Does not impact children, does not remotely impact child’s emotional well-being and/or safety. Only included to further harass other parent and their new partner.

  2. Greg, excellent blog post. I was on board years ago. By separate email, I am sending you a copy of my written materials from the 2012 GAL CLE seminar.

    1. Elizabeth Hight says:

      Greg, I couldn’t agree more. Thanks for speaking up.

      Tom, the presentation you gave in 2012 was one of the most impactful CLE’s of my career. The talk you gave about what’s wrong with “standard visitation” not only influenced how I have advised clients over the past ten plus years, the alternative approach you suggested became the foundation of the parenting plan my ex husband and I have lived by successfully for 10 years. Thank you!

  3. MJ Goodwin says:

    I agree. More restrictions lead to more arguments. If my son had been prohibited from seeing R-rated movies, he would not have seen Saving Private Ryan, which he saw when he was around 13, and which sparked a love for history that led to almost all of his undergraduate college being paid for by a generous scholarship to study history. I loathe that particular restriction.

    1. I used to take Hannah to sneak previews of R-rated movies on Thursday nights. While her middle-school classmates were busy grinding away and highly stresses, she was relaxing the evening before testing.

      Not only was it a great bonding experience, but Hannah ended up studious without being a grind.

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