You have rock-solid arguments against your ex – but what’s the other side of the child custody/parental visitation argument? Possibly your ex was emotionally and physically abusive. In other situations, maybe your ex has substance abuse issues, mental health issues, or is otherwise unstable. With that said, have you considered your ex’s counter arguments?
There’s an old saying that people who live in glass houses shouldn’t throw stones. This saying often applies to custody and visitation arguments. Accordingly, parents should consider the other side of the parental visitation and child custody story before throwing stones in court.
Here are some of the common counter claims in custody and visitation cases.
ONE PARENT CLAIMS ABUSE – THE OTHER PARENT CLAIMS MENTAL HEALTH ISSUES
Parents almost never admit that they are bad, while the other side is good. Family law cases rarely boil down to good vs. evil. Instead, child custody and parental visit cases often involve shades of gray. For instance, both sides may sling mud in the other parent’s direction with claims and counterclaims.
For example, one parent may claim mental or emotional abuse. At the same time, the other parent may assert substance abuse or mental health issues.
In some situations, one parent opens a case with allegations of abuse. The case may be a Restraining Order of Protection or Motion to Modify Custody or Visitation. Unfortunately, the parent that opened the case might lack evidence to support their claim. On the other hand, the opposite parent may have a legitimate claim for substance abuse, harassment, or parental instability that places the child in danger. Because of this fact, the responding parent files a Counter Petition or Motion that requests a change in their favor.
Once the matter is heard, the parent that opened the case may end up with a negative result. For example, possibly the court reviews the evidence and finds that the Petition or Motion were filed as a form of continued abuse or harassment. In some cases, the responding parent has stronger evidence to support claims of threats, harassment, or abuse.
MOTIONS AND REQUESTS THAT BACK-FIRE IN CHILD CUSTODY AND PARENTAL VISITATION
Motions and requests can back-fire. At times, parents open a Pandora’s box by filing a petition or motion. In some situations, motions or requests are filed without consulting with an experienced attorney. As a result, the parent may be shooting themselves in the foot by filing an ill-advised motion or request.
Keep in mind, not all requests lead to a positive result. There are no guarantees in love, war, or family court. New Mexico judges decide parental visitation and child custody issues based on a child’s best interests. A child’s best interests is a fluid concept that is multi-layered and based on several factors. Because of this fact, child custody and parental visitation cases rarely fall into a cookie-cutter mold. Accordingly, it usually is a bad idea to file a motion without considering the potential drawbacks.
BOTH PARENTS ALLEGE SUBSTANCE ABUSE ISSUES
In some cases, one parent abuses drugs or alcohol while the other parent is sober as Sunday. In most cases, however, both parents use a mind-altering substance. For instance, possibly one parent drinks excessively. On the other side, the opposite parent may be bi-polar or taking mind-altering, prescribed medication.
In some cases, one parent raises concerns of substance abuse issues that back-fire. For instance, let’s say that Mother demands for Father to take a drug test. In doing so, Mother claims that Father is abusing drugs and should immediately provide a urine sample in court. As a result, Father demands that Mother perform a similar test. The assigned judge orders for both parents to provide a urine sample.
A brief recess takes place. About thirty minutes later the results are returned [*insert suspenseful sound effect here*]. As a result, Father tests positive for marijuana. At the same time, Mother tests positive for methamphetamine.
The assigned judge is conservative and detests mind-altering substances. In Judge’s mind, marijuana is far less concerning than methamphetamine. Consequently, Judge is highly concerned with Mother testing positive for meth. As a result, Father is granted temporary sole-legal custody.
Moral of the story – don’t throw stones if you live in a glass house.
A TALE OF TWO STATUS QUO STORIES –THE OTHER SIDE OF THE CHILD CUSTODY/PARENTAL VISITAITON ARGUMENT
“Status quo” is a popular buzzword in family court. Usually, status quo refers to the timesharing that occurred before the parents appeared in court. To judges, status quo is important because judges believe that children thrive with consistent and predictable schedules and homes.
Unfortunately, “status quo” is often problematic. For instance, parents may have wildly different stories about the status quo that occurred before a case was opened. In some cases, a parent may recount a status quo that isn’t possible with the parent’s work schedule. In other cases, one parent may have text, calendar, or email evidence that supports their version of the status quo. Finally, in some cases the child is 14. As such, the court must consider the child’s desires regarding parents visitation.
In doing so, the child may support one parent’s story. As a result, the parent that supports their version of the story gains credibility. At times, this credibility follows the case and can haunt the other parent.
BOTH PARENTS CLAIM TO BE THE CHILD’S PRIMARY CAREGIVER IN NEW MEXICO
As discussed, custody and visitation cases are based on a child’s best interests. As we have also discussed, a child’s best interests are based on many factors.
A child’s primary caregiver is one factor that impacts the court’s decision. For instance, the parent that has traditionally cared for a child may be considered the child’s primary caregiver. Factors that determine a child’s primary caregiver include:
- Parent that primarily cared for an infant child;
- Parent that brings the child to medical appointments;
- The parent that usually helps the child with schoolwork; or
- A parent that schedules and transports the child to extra-curricular activities.
Being a child’s primary caregiver demonstrates bonding and attachment. At times, both parents claim to be the child’s primary caregiver. In some situations, this claim can backfire.
Let’s say that Father files a Restraining Order of Protection that alleges serious abuse. The court grants a temporary restraining order that gives Father temporary sole legal custody. In response, Mother files a counter-petition.
At the scheduled hearing, Father makes several claims that are unsupported by evidence. As the hearing progresses, Father’s credibility becomes suspect. Father tells the Hearing Officer that he is the child’s primary caregiver. On the other side, Mother claims to be the child’s primary caregiver.
This assigned Hearing Officer is particularly sharp and quick-witted. Because of this fact, Hearing Officer asks Father, “who is your child’s pediatrician and dentist.” Dead silence. Hearing Officer then asks Mother the same question. Mother immediately responds, “Dr. Thomas Franklin and Dr. Betty Gonzales.” As a result, Father’s credibility crumbles. The momentum in the hearing completely shifts in Mother’s favor. At the end, Hearing Officer enters an Order of Protection against Father.
Moral of the story – don’t make claims that you cannot back up with knowledge or evidence.
(505) SANCHEZ HELPS YOU UNDERSTAND THE OTHER SIDE OF THE CHILD CUSTODY/PARENTAL VISITATION ARGUMENT
For over a decade, Matthew Sanchez has helped New Mexicans understand the other side of the child custody/parental visitation argument. Sanchez practices family law in courthouses across New Mexico, including: Rio Rancho, Los Lunas, Belen, Gallup, Santa Fe, Estancia/Socorro. Speak with a battle-tested Albuquerque child custody lawyer/attorney. Speak with (505) SANCHEZ.
The Other Side of the Custody/Visitation Argument in New Mexico
