Learning how to navigate the do’s and don’ts of being involved in a child custody dispute can be unnerving. In Episode 11, host Jaime Davis discusses helpful tips for surviving child custody litigation with her colleague and fellow family law attorney Melissa J. Essick. Jaime and Melissa address issues such as how to appropriately communicate with the other parent, what not to post on social media, and how to avoid alienating your child.
Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.
Jaime Davis: Welcome to Episode 11 of ‘A Year and a Day’. I’m your host, Jaime Davis. In Episode 10, I discussed a very important project of Legal Aid of North Carolina, known as ‘The Child’s Advocate’ with its director, attorney Suzanne Chester. In this episode, I will be discussing custody do’s and don’ts with my colleague Melissa Essick. Melissa is a board certified family law specialist and has practiced almost exclusively in the area of family law since 2004. Melissa is also professionally trained as a mediator in all family law matters and has been certified as a family financial mediator by the North Carolina Dispute Resolution Commission. Welcome, Melissa.
Melissa Essick: Thank you.
Jaime Davis: So in an ideal world, parents don’t separate or if they do, they do it amicably and are able to agree upon the custody of their children. However, sometimes, despite using your best efforts, you might find yourself in the middle of a custody lawsuit. Today, I thought it would be helpful for us to talk to our listeners about some do’s and don’ts of custody litigation. One of the most important things I tell my clients who are involved in custody cases is to remember it’s not about you or what you want. It’s about what is best for your child. And Melissa, jump in and disagree with me if you do. But you know, every child is different and a certain child may have different learning needs, medical needs. And maybe in those cases, equal time with both parents would not be appropriate.
Melissa Essick: That’s exactly correct, Jaime. The judge in a custody case is tasked with determining what’s in the best interest of the child. So when you’re out in the real world trying to make a decision as to what schedule you want to implement or want to suggest for your children, you really need to look at what their specific needs are, medical, learning, disabilities, etc., like you said. I have an example where I represented the mom and luckily for them, both mom and dad both agreed 50/50 was going to work best for their family, or at least they thought. Their daughter had special needs, a learning disability, and mom would pick up the daughter from school after work on Mondays and Tuesdays. Dad allowed the daughter to ride home from the bus on Wednesdays and Thursdays, and then they alternated the weekend. They thought that was going to work great. Well, they found out that the daughter was having serious issues with focusing and getting her schoolwork done. And what they decided was it was best for her to have a very strict routine during the week. And so they didn’t have to change their overnight schedule necessarily. They allow the daughter to ride home on the bus everyday so she had a consistent routine and would go home to dad’s house, do her homework and mom would pick her up there. And that’s just one example of many where you really need to look at the specific needs of the child. Not necessarily making sure that mom and dad have equal time with the child.
Jaime Davis: Right. That’s a great example. And fortunately, in your situation, those parents were able to work together and to make that work for their child. But, you know, there’s plenty of cases where that just doesn’t happen. And parties do have to seek the court’s help in determining a schedule. So, do you have any tips for how parents involved in custody litigation should or should not communicate with one another?
Melissa Essick: Absolutely. There are many and I think that’s one of the biggest questions we get asked as attorneys. First of all, be cordial. Be respectful to the other parent. You were obviously going through a divorce for a reason. And so there are probably some hard feelings one way or the other, and that’s understandable. However, the child does not need to be a witness to those negative feelings. The child needs to know that both parents are respectful of the other. Whenever you greet the other person, you can say hello.
You don’t have to get into the details of is child support being paid or the details of the extra curricular pick ups, etc. Be cordial and allow the communication to take place outside of the children. You know, email the other parent, text the other parent, call the other parent. But don’t do it in the same setting as the child. It’s just not appropriate.
Jaime Davis: Yeah, I think that is so important. It’s really important to remember not to send messages through your children. If you have something to say to the other parent, send them a text message, send them an email. But don’t tell your son or daughter, “hey, would you mind asking your dad X, Y or Z”. That places the child squarely in the middle of what should probably be an adult decision.
Melissa Essick: Absolutely. And I see that come up regularly, especially if someone hasn’t made a payment. They say, well, you know, “Joey, can you ask mom about reimbursement for the extracurricular activities?”, and naturally, that’s gonna put him in a very uncomfortable situation. And so it’s just not the appropriate place for it. And our courts are very clear that parents should not involve the children in adult matters.
Jaime Davis: And, you know, another example, just sort of thinking through this where the child may go to one parent or the other and say, “hey, mom, I’d like to sign up for baseball”. And mom says to the child, “well go ask your dad to pay for it”. Again, not appropriate. Don’t put the child in that position.
Melissa Essick: Absolutely. And if there are, understandably, there will be changes in a custodial schedule even after an order is put in place or after a parenting agreement is agreed upon. And there may be a need to vary from that schedule. The child doesn’t need to be the one asking permission of the other parents. If there is a question about whether or not we need to vary the schedule, maybe mom wants to go on vacation and it’s outside of the parameters of what the court order allows, she needs to ask the dad first. They need to make an agreement and then they both notify the child as to what the schedule will be instead of saying, “hey, I’d love to take you to Disney World if your dad will let me.”.
Jaime Davis: Right.
Melissa Essick: You know, you can imagine the issues that would cause.
Jaime Davis: Absolutely. And since we’ve talked about these communications, you know, potentially being in writing, emails, text messages. Any tips for how a parent can word these very written communications to the other parent?
Melissa Essick: Yes. You need to first assume that everything that you write is going to be read by a judge. And that’s everything that you write to your child, everything you write to the other parent and everything you write to a third party. Be respectful again, be cordial and make sure that if a question is asked that needs a response, that you’re responding. Sometimes parents, you know, don’t want to communicate with the other parent because of the adult issues that are going on in their relationship. However, if there is a question, you know, about an extra curricular activity, a question about a mental health provider or a medical necessity, you need to be responding to those timely and you need to do so respectfully.
Jaime Davis: And a tip that I give to my clients. So if they get an email from the other parent and it’s talking about three or four different issues, I will advise them to respond: one, two, three, four. And even if the answer is just okay, type out the word, OK, so that the other parent knows that you read the question that you’re okay with it and that they have permission to do whatever it is that they’re asking you about.
Melissa Essick: Absolutely. I think that’s a great idea. One other suggestion I give to my clients is don’t make this personal because a lot of people use this, email or text messages, as a way to kind of take a jab at the other parent and our courts are just not going to look at that favorably.
Jaime Davis: Right.
Melissa Essick: If you’re going to be communicating about the children, keep it to issues related to the children and let, you know, talk to your therapist about those other personal things that you might think about the other parent. But that’s just not an appropriate place or time for it.
Jaime Davis: And so what do you think about information sharing between parents? For example, maybe during the marriage, one parent or the other was the parent who primarily signed the kids up for activities. Maybe was on all of the email lists to get the soccer schedule or the ballet recital information or whatever the activity was. How do you feel about what steps that parents should take to make sure the other parent has the information?
Melissa Essick: My advice is share as much information as you can possibly handle. Better to overshare than not share. Put them on the email list for all the extracurricular activities, share their information with the coach, share their information with the school, with the medical provider…
Jaime Davis: And along those lines, too. I think it’s important to remember that when you are filling out these forms, when you are filling out the intake form at the doctor or for school registration or whatever it is, you need to make sure that you list the other parents contact information on the form along with yours.
Melissa Essick: And those documents are very easy to get and oftentimes are used in trial and we see those again. So if you think that you’re gonna pull one over on your spouse, think again, because a lot of the times the applications and the signup sheets and the information sheets you see those again in court. So make sure that you’re doing the right thing.
Jaime Davis: Absolutely. And I think that goes back to one of my golden rules and something that I tell my clients all the time. And it’s going to sound very cliche, but when given the option, take the high road. If the other parent continually asks you for the whens, what’s, where’s of the children’s activities or schedule and you know they’ve gotten this information before, just give it to them again. It can only benefit your child.
Melissa Essick: Absolutely. You know, you don’t want your son or daughter feeling like mom or dad just neglected them or forgot to show up for their preschool graduation or their, you know, soccer tournament, etc… Just do this for your child. You don’t want your children to be, you know, disappointed that their parents are not there and you certainly don’t want to be the reason for the disappointment.
Jaime Davis: I couldn’t agree with you more. So we’ve talked about communication between separated parents. Do you have any tips for a parent communicating with his or her child?
Melissa Essick: Many, yes. First, I would say when you are communicating with your children. Like I said before, assume if it’s in writing that you’re going to see it again. So, if you’re texting your children, you may think that it’s private between you, you and your child, but there is a chance that it could be it could come up again in court. But also, don’t interrogate your children. I see that more than I would like where a parent is trying to gather information about the other parents and instead of just cordially, you know, just matter of fact, asking being about the child’s day, “what did you do?”, “how are things going?”, it turns into an interrogation where they’re just drilling the child for information and a child can pick up on that. They know exactly what the purpose is for, you know, mom inquiring about who was dad with when you went to the movies. I think a child completely understands what the purpose is. And you really just want to limit your conversations with your child to, you know, matters about them that are directly affecting them.
Jaime Davis: I think it’s also really important to keep in mind the age of your child when you are insisting on a certain form of communication with them. You know, now with most folks having a smartphone that is capable of face time or, you know, some other communication mechanism. You know, parents really want to face time with their kids a lot and very frequently and with very small children, as I’m sure you know, from your own children, they don’t want to talk on the phone. They would rather go play with whatever else it is that they’re doing than to talk to the other parent. And so I try to encourage my clients to be mindful of the number of times that they contact the child when the child is with the other parent and also the duration. You know, keep it short. Don’t take it personally. It’s not because your child loves you any less. It’s just because maybe your child is 3 years old and would rather go watch TV than talk to you on the phone.
Melissa Essick: That’s right. And the time of day that you call is important. Call it a time that’s going to be convenient for both the child and the other parent. And again, it all comes back to being respectful and courteous. But you don’t want to call in the middle of dinner, you know, dinner and bath time is a busy time. So check with the other parent and see what works for them in their household. If you know that dad’s gonna be at the pool with your little ones, you know, Saturday afternoon, don’t call it that time because most likely the child is not going to want to talk to you. And it’s going to put the parent and the other parent in a very difficult situation. So just think about the times that you’re calling, and also, like you said, the duration.
Jaime Davis: What do you think about giving the child privacy for phone calls with the other parent?
Melissa Essick: I think it’s very important if a child is reasonably age, of suitable age, they’re going to naturally step away when when they receive a phone call from their mom or dad. But if a child is younger and not necessarily as familiar with the phone, it may be more comfortable for them to talk on speaker phone. And in that situation, I still encourage my clients to allow that child some privacy. You know, let them go in their playroom and close the door behind them or, you know, just make sure that the both the child feels comfortable speaking freely with the other parent and that the other parent doesn’t feel like you’re monitoring them because you would want that same respect.
Jaime Davis: So while we’re talking about communication between the parents and the children. What do you think about those remarks that maybe are overtly disparaging of the other parent, but they sort of get a little jab in there. You know, maybe one parent says to the child, “Let me guess. Your dad is running late again?” What do you think about those types of remarks?
Melissa Essick: Well, I think, first of all, it’s damaging to the child because ultimately you’re putting the child in a position to have to form an opinion about whether or not this is really dad’s fault. And he also makes the child somewhat defensive of the other parent. And that just puts them in a peculiar situation. I would just leave those remarks out, just be fact based. If you really need to know the information and you can’t get it from any other source but your child, just ask the question that you want the answer to. You don’t need to imply these other underlying negative inferences about the other parent.
Jaime Davis: Right. Because the child is going to eventually take all of these remarks cumulatively. And your remarks, whether you intend to or not, could cause your child to feel alienated from the other parent, which ultimately is not going to be in your child’s best interest.
Melissa Essick: Yeah. Absolutely. And I tell parents and I think parents see it after a certain period of time, a child is going to start resenting a parent that continues to make those comments and continues to attempt to alienate and our courts are going to consider a parent’s willingness to allow contact with the child and the other parent or allow communication with the child and the other parent. They’re going to consider that. And, you know, if you are someone that is an alienator you really need to – I encourage people to go to a therapist, a child therapist or a family therapist and talk to them about ways to communicate. Some people are better at communicating than others naturally. And so if you don’t know whether or not your tone is such that it could be alienating there are plenty of family resources that I would encourage them to talk to.
Jaime Davis: So let’s talk about a biggie. Social media. What do you tell folks about what they put on social media while they are involved in a custody lawsuit?
Melissa Essick: Aside from stay off of it?
Jaime Davis: Yes.
Melissa Essick: Assuming that they are not going to follow your first line of advice, which is to not post anything.
Jaime Davis: Right.
Melissa Essick: Well, be mindful of what you’re posting. And, you know, not only – it typically comes up with significant others often, but it’s more than that. It’s oftentimes, you know, the people that you’re associating with or the times that you’re out, especially if you’re out with your children. What are you doing when the children are with you and what are you doing when the children are not with you? And that all, you know, I’m not on Facebook myself, but I do understand that you can check in to certain places. And so it’s very easy for the courts to see exactly what you’re doing and when you’re doing it and who you’re doing it with.
Jaime Davis: In the pictures, you know, pictures of partying or copious amounts of alcohol being consumed, especially if the children are in the pictures with you. That stuff just needs to not be posted on social media. Also, I think it’s really important for folks to remember that once you are involved in a lawsuit or if a lawsuit could be imminen, you have a duty to preserve evidence. And that means you can’t go into your social media accounts and just cherry pick things to delete. It all has to stay there. And so, it’s always best when in doubt, don’t put it on the Internet.
Melissa Essick: Absolutely. And similarly, if you’re involved in litigation, often times I see posts to Instagram or Facebook about what they’re going through and the emotions that you’re going through and I just don’t think that’s the appropriate place for those type of comments. Ultimately, your children, too, could get to an age where they were they are able to read those comments and, you know, it could impact them. So just be mindful of that.
Jaime Davis: Well, that and maybe you meant something sarcastically. But, you know, sarcasm doesn’t necessarily come through on social media. And so maybe somebody is going to take something you said quite literally and if taken literally it’s going to be something that can be damaging to your custody case.
Melissa Essick: Right. Exactly.
Jaime Davis: You have to remember that the stuff that you post on social media is out there. And when you are involved in a lawsuit, odds are good you’re probably going to see some of this stuff again. And so, again, this may go without saying, but when asked about it later at your deposition or in a court hearing, don’t lie about it. You’re going to get caught. You know, when you’re in court, you can highlight your own qualities, but don’t lie about your past weaknesses or what you have put on social media because you better believe the other lawyer is going to impeach you. And they are going to have whatever the picture is or the post is or the email or the text message and they’re going to show you that in court. And if you have already lied about it and they prove that you were lying, you are gonna lose so much credibility with the court.
Melissa Essick: Absolutely. I mean, you need to be able to acknowledge your parenting mistakes, acknowledge your strengths, but also your weaknesses. We as parents all have made mistakes and we all have our own weaknesses. It’s one of my biggest pet peeves when asked either in a deposition or in court, “what are your weaknesses?”, and they can’t think of one thing that’s a weakness. That’s just not true. And you lose credibility with the court. It’s OK to make mistakes and acknowledge them and explain to the court what you could have done to improve them or what you wish you would have done differently and what how you’re going to learn from that. I think that’s very natural.
Jaime Davis: Right. And another common question that we see lawyers ask is “what responsibility do you take for this situation?” If, for example, the child is having difficulty in school or, you know, something like that, the lawyer may ask, well, “what responsibility to you take?”, and when the parent says none and tries to blame it all on the other parent, it’s just not believable.
Melissa Essick: Similarly, if you’re asked about the other parent’s strengths, you need to be able to list a few because the other parent most likely has one or two strengths that you would like to highlight to the court. It’s OK to acknowledge that the other parent has strengths and that you have witnesses and you just need to be honest and that will come across as being credible.
Jaime Davis: I agree. Folks get in trouble when they overstate things. And when you have asked about the other party’s strengths and the person can tell you nothing except “well, they love the kids”.
Melissa Essick: Exactly. That’s what we hear often.
Jaime Davis: It’s just not believable.
Melissa Essick: Right.
Jaime Davis: So let’s talk a little bit about significant others for folks who are separated, divorced, going through a custody lawsuit. What tips can you give to those parents for how they can act appropriately with a significant other in the picture?
Melissa Essick: Well, first, just to remind our listeners that the courts consider living arrangements and so don’t be too quick to move in with your partner because they will look at the environment of the home, whether or not it’s safe, it’s stable, whether or not maybe even if the child has proper living quarters, do they have their own bed, their own bedroom, and so just make sure that if you are at a place where you’re thinking about moving in with your significant other, that you’ve really weighed all of the-
Jaime Davis: The pros and the cons of the situation.
Melissa Essick: That’s right. Yes, absolutely. And so, and also be mindful of the person that you are associating with and your partner, because the judge is going to look and be making a determination about what’s in the child’s best interests and if your partner has a criminal background, for instance, or is associating with dangerous individuals, the judge is going to consider that when making the ruling as to whether or not it’s appropriate for the child to be around your significant other.
Jaime Davis: On the other hand, if the parent has been dating someone for a long period of time and that person is good to your child, I think it’s really important to remember not to be jealous of that person or to feel threatened by the relationship that this new significant other has with your child. The more people who love and care for your child, the better. And so I think some of those relationships can be very positive for the child. And it’s really important for the parents to remember that this new significant other is not going to replace them. They’re just another person who can be a positive influence on the child.
Melissa Essick: Absolutely. I do think that they also need to be aware, though, that if they’re spending all of their custodial time with the significant other that may also be not be considered a suitable choice by the judge. The judge is going to want to see that the child is getting individual love and attention and if you’re spending 100 percent of your time with the significant other odds are that child is not getting individual attention. And so you want to make sure, of course, if it’s an appropriate time and it’s an appropriate person, that you involve the child in your significant other’s life. But you just want to be mindful and make sure that your child is still receiving the love and attention that it needs.
Jaime Davis: Yeah, but the really good point, Melissa. So a question that I get a lot. When is it over? When does the litigation end?
Melissa Essick: Never, unfortunately. And I hate to tell clients that, you know, we finish up a three day custody trial and we, you know, the judge makes his ruling and we walk out of the courtroom and they say, finally, it’s over. And I have to remind my clients, it’s not unfortunately, you know, not only is it that the litigation may not be over, at any time that the child is under the age of 18 the other parent can file a motion to modify custody if there is a substantial change in circumstances. And so there’s always a chance that in the future there will be another motion to modify filed and you might find yourself back in front of a judge. We hope that’s not the case, but it’s always possible. Additionally, even after they turn 18, you are going to be that child’s parents for the rest of that child’s life. And and that means that you are going to have to see and be in contact with the other parent, which hopefully you have fostered a relationship such that you can be in the same room and be cordial with each other. And if you have been respectfully during the litigation process, most likely that will be the case.
But just remember, graduations you’re going to see him, you’re going to see him at weddings and births of babies and you want that time for your child to be about your child and not about your relationship with the other parent.
Jaime Davis: Even though the original lawsuit might be over, Melissa, given what you said earlier about the possibility of modification. I think it’s really important that folks still remember even after the order is entered to be mindful of their written communications with the other parent and to continue to follow these sorts of rules that we’ve talked about for co-parenting. You know, maybe they continue to keep a journal of things that happen related to the children or, you know, the number of overnights that the parent was supposed to have with the children, but they didn’t exercise or all of those sorts of things because really it never is over.
Melissa Essick: Exactly.
Jaime Davis: Well, Melissa, thank you so much for joining me today and for discussing these helpful tips for surviving a child custody case.
Melissa Essick: You’re welcome. My pleasure to be your guest.
Jaime Davis: If anyone has any questions for you or would like more information, what is the best way for them to reach you?
Jaime Davis: I hope you all enjoyed this episode of ‘A Year and a Day’. If you have any suggestions for future episodes, I would love to hear from you. You can e-mail me at firstname.lastname@example.org. If you like what you heard today, please leave us a review on i-Tunes. As a reminder, while in my role as a lawyer, my job is to get folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and a specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.