Protecting your parental rights and well-being of child during pending litigation

The Gainesville Family Law Attorneys of the Law Office of Alba & Straile, PLLC know the challenges faced by families involved in custody disputes. Regardless of which ‘side of the fence’ you are on, going through a custody battle can be an emotionally and mentally wearing period of time for parents. Uncertainty, worry, anxiety, concern, anger—these are all common feelings to have. Now consider the impact on your child(ren). They are likely experiencing some of the same feelings, may be confused, have questions, and, depending on their age, may be noticing the effect that the pending litigation is having on their mom and dad, which can further add to their stress. This can be a lot for a child to handle.

It is important to keep in mind that even though parent and child may be experiencing similar feelings—you are an adult and the child is not. Protecting your child’s well-being should always be the paramount concern in custody disputes—followed by the ancillary concern of ensuring a fair and just custody determination. The two are more closely tied than parents may think, though. Consequently, in order to protect the well-being of your child, as well as your parental rights, parents should consider the consequences of their actions during pending litigation, from both a legal and mental-health perspective.

If you are currently a party to a proceeding involving a custodial dispute, you may already be aware the standard courts use in making custody determinations—the best interests of the child, the criterion for which is set forth in §61.13(3) of Florida Statutes. While there are close to two dozen factors the court may consider, there are a few factors in particular that can be very useful to parents in terms of protecting both parental rights and the child’s well-being during the pendency of custody disputes.

The first is directly related to this particular issue:

• The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.” See, Fl. Stat. 61.13(3)(r)

While the above-listed factor provides specific examples regarding parental actions during pending litigation, it is also important to remember the ‘totality of circumstances’ approach taken by courts. In other words, anything affecting the well-being of the child can be taken into consideration. Consider the following additional factors:

• The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.” See, Fl. Stat. 61.13(3)(a)

• The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.“ See, Fl. Stat. 61.13(3)(c)

• “The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.” See, Fl. Stat. 61.13(3)(l)

Read in conjunction with one another, these factors essentially boil down to one concept—has the child’s well-being been put first in all aspects, despite any animosity between the parents. Although the law provides guidance as to the types of behaviors that evidence good parenting skills, this should only serve as a starting point. Parents must fill in the gaps by using a common sense approach in considering the impact that their actions may have on both their child’s mental well-being, as well as the outcome of the pending custody proceeding.

For instance, parents should not only refrain from discussing the litigation, or making remarks about the other parent, directly to the child, but also should be careful with what they say to others, when the child is either present, or may possibly overhear the conversation. Likewise, in addition to not sharing documents or electronic media with the child, parents should also be careful not to leave documents where the child may find them, remember to close emails or electronic communications, and when necessary, restrict access or not allow the child to use devices in which the child may view information regarding the litigation, or comments about the other parent.

At times, it may, of course, be necessary to share at least some information with the child. Be honest with the child, but limited in the information you provide, and refrain from telling the child any more than is needed to satisfy their inquiry or concern. Above all, support the child’s bond with the other parent, and do what it takes to provide them with reassurance and stability that children need, even when doing so requires you to communicate, perhaps more frequently than you would like to, with a person that is on the opposing side of legal battle.

By remaining aware of the impact of your actions, and being cautious in what you say and do, parents can help to safeguard both their child’s mental health as well as their custodial rights.