Something I often used to do when struggling through my custody case was to picture – quite literally, as it happens – a little floating Sarah (my solicitor, and I can’t wait to see how she’ll react to this revelation) over my shoulder. Any time I was faced with a difficult situation and had to make a decision, Tiny Sarah would float toward my ear and whisper: ‘Is that decision in the best interests of your daughter?’
This, more than anything, is the single most important question you have to ask yourself throughout any custody proceeding. And you’ll be asking it over and over and over again.
Is what you are doing in the best interests of your child?
If you are in a situation where you are having to argue for your right to custody or to access, then this is the single most important piece of advice I can offer. Obviously, I’m not just saying this for strategic reasons, although do realise that the court will be looking at everything you’ve done and asking that same question. But I would not offer this advice on legal grounds alone were it not also the fundamentally the right thing to do as a parent.
That’s a broad statement, too, that applies not only to issues of custody but also to issues of parenting. Really, everything we do as parents should be done because we believe that yes, this is in the best interests of our children.
Of course though, we all live in the real world and it’s simply not possible to ensure that every single thing you ever do is uniformly the ‘best thing’. There will be times you let them watch TV because you’re shattered, or give them an ice cream as a treat, or forgive them for not eating their greens or not tell them off when you know that really you should.
But part of what makes the question so complicated is that a child’s ‘best interests’ are not always so easy to define. Yes, sugar is bad, but of course they should be treated to chocolate sometimes. Yes, too much TV is probably not good, but you really do need a time out before you explode.
Issues of custody are similarly complicated, but actually when you think about it, you might find that applying the ‘best interests’ principle in these circumstances is actually more straightforward than you think.
To know what is in your child’s best interests, you have to understand what it is you want for them. In the vast, vast majority of cases the answer to that question is that you want your child to maintain a good relationship with both parents. That is unquestionably in their best interests, as much as at times it may not feel so. And incidentally, that is the overriding desire of the court, too.
There can be deviations from this when there are issues of safety, but even then the goal everyone is striving towards must again be to maintain a good relationship with both parents, although conditions will need to be applied to ensure this occurs safely.
Sadly however, when you look at the circumstances of custody cases, it’s all too common to find that one or both of the parents are making decisions not in their child’s best interests, but in fact in their own. Preventing your ex-partner from accessing your child because they lied and cheated to YOU is NOT in your child’s best interests. That’s an action taken in YOUR interests because you want to punish them.
Parents are humans and humans sometimes lie and deceive. As much as this reflects poorly on them, it’s not a character trait worthy of eternal damnation. That doesn’t change because you were the one who was lied to and hurt. After all, you have lied at some point too. We all have. This can be hard to accept (trust me, I understand that completely), but it’s something you are sadly required to do.
The rationale often employed to justify blocking access on these grounds is that the ex in question ‘cannot be trusted’ and is ‘irresponsible’. That may be true, but flaws in a person’s character are never a justification to prevent a child having a safe relationship with them. At most they can be a reason to ensure necessary protections are put in place, but this will very, very rarely take the form of no contact whatsoever.
This can be an incredibly hard thing to accept during a custody case, especially if it comes on the back of a relationship breakdown. Emotions will be running high and one or both sides of the divide will be angry. This is understandable and probably unavoidable, but can never, ever rightly be used as an excuse for using contact as a weapon.
That is not in your child’s best interests. And the court will feel the same way. It’s also likely that your child will be of the opinion that they want to see both parents. The court will also take this into account, too. After all, what a child wants should absolutely be of paramount importance.
I know a chap who is right now going through exactly this, with his ex partner stating (on record, incidentally) that perhaps she would not have blocked access had he not involved social services. It’s an open admission that blocking access was used as a revenge tactic. There is no clearer failure of parenting than prioritising your anger over your child’s well being, and it will rightly count against you in court.
I lost count of the number of times I had to take a step back throughout my case and examine my behaviour more analytically. There were times when I had to say yes to an access request when every ounce of me was telling me not to, because when I asked myself if it was in my daughter’s best interests the answer (if I was being honest to myself) was yes. On the other side of the coin, there were many times I had to say no to a request, despite the anger that would result and the inevitable vicious backlash that would follow, because the answer was no.
If you’re in this situation another thing should be definitely be doing is keeping records. Copies of texts and emails, summaries of conversation, a list of what has happened and and notes on why you made that decision. Not only is this legally sound but it’s the best sanity check in the world. Go through it, look at every decision you’ve made and ask yourself: was that in the best interests of my child? If the answer is yes, then it’s likely you’re doing everything you possibly can in what is the most difficult of situations.
This article is by Ben Parfitt, a former client of BLB Solicitors. He writes from personal experience. For legal advice on all issues to do with divorce or separation, please contact the family team at BLB Solicitors.
You may also be interested in the following articles:
Fighting for custody: my story
From ex partner to ex pat: emigrating with children after separation
The voice of the child – involving children in family disputes
Image (cropped) by Lwp Kommunikáció under a creative commons licence