Avoid Being a Gatekeeper in Custody Battles
Lately, I’ve heard “gatekeeping” thrown around a lot in court, so I wrote this blog to help clear up some misconceptions.
First, gatekeeping is not necessarily ALL bad.
Most families have a gatekeeper. In my family, I AM PROUDLY THAT GATEKEEPER. I fiercely protect our family calendar by meticulously enrolling my children in activities as soon they become available. Meal planning is done months in advance: what and when we eat. I am always the homeroom mom! Acknowledge this mama bear gatekeeper before you, and know I’m damn proud of it. It is not unusual for every family to have that gatekeeper. The royals have several.
However, gatekeeping is often a problem in custody cases.
I wish I could come up with some blanket check-the-box for you to identify and label the “gatekeeping”, but unfortunately, in family law, there is no black and white. Custody is determined on “best interests of children”, which is vague vague vague, and sometimes “gatekeeping” can only be defined as you “know it when you see it”.
In cases of actual abuse, parental gatekeeping is NECESSARY and good. If parents separate, and one parent has alcohol/drug addiction problems, or mental health issues, we need the other parent to step up the gatekeeping, because this is protecting the child. Sometimes, failure to gatekeep results in loss of the child. A Minnesota mother caught in a custody battle was GRANTED sole custody, and then murdered her son. A California father awarded joint custody murdered his son after Disneyland.
In these cases, any reluctance on the other parent’s side to allow the custody/visitation may be labeled “gatekeeping”, but it’s for good cause. Our legal system failed to recognize the warning signs and the children suffered. My heart breaks into a million pieces when I read stories like this because innocent CHILDREN are the victims.
NO MATTER how you feel about the other parent, you have AN ABSOLUTE DUTY as a parent to NOT fuck up your children.
Back to gatekeeping…where there is an ACTUAL harm, protective gatekeeping is expected and GOOD.
IF the separation/divorce is due to ABUSE on one side, I IMPLORE you to seek help from not only experienced lawyers but psychologists who will identify and deescalate the situation. If I can change family courts, I would beg them to put more trained psychologists on staff. That is a different blog entry.
Gatekeeping due to actual harm is good.
Gatekeeping Due to Perceived Harm is Questionable
Where it is questionable is when there is “perceived harm”. This is the category in which most cases fall into. Common custody complaints are the following:
1) my husband allows my kid to play Grand Theft Auto – it’s teaching him violence and how to kill;
2) my wife forgets to pack my kid lunch and she goes hungry. Then she forgets to bring the kid home from school – she abandoned our kid.
3) my kid got lice at my husband’s house
4) my husband/wife drinks too much;
5) my husband/wife’s new boyfriend/girlfriend is a criminal;
6) my husband takes baths with the children and posts the photos on Facebook.
Perhaps there exists actual harm in all these cases. But the majority of the time, these scenarios are “perceived harms” born from one parent’s negative attitudes and disgust of the other, and twisted reality. (e.g., in the bath scenario, guess who was taking the photos? Mom who thought it was sooo cute!!!! Facebook, by the way, is ALL perceived reality. Again, another blog post.) In these types of cases, the parties may simply need a family lawyer’s guidance and help from parenting plan coordinator to discuss each of their concerns and try to remedy the concerns PRIOR to going to Court.
Family Court Doesn’t Grant Revenge
Family courts are NOT in the business of revenge, despite popular misconception. In these types of perceived harm cases, it is critical for the family law practitioner to be in the driver’s seat.
First, learn about your client and why they are feeling this way. For example, a recent client refused to share school and doctor’s records with the other parent. The other parent lives in a different country, and has been absent most of the 3-year-old life. My client was fearful of international abduction and didn’t understand the difference between legal and physical custody. It was essential for me to address her concerns, while at the same time, avoid presenting her as an unreasonable gatekeeper. If you are a family law practitioner, I encourage you to read an article I published years ago, “Top Custody Complaints and My Advice.”
If you are in the DRIVER’S SEAT, you do NOT submit Declarations with petty complaints to the Judge just because your client asked you to. You have a duty to examine all the evidence and make the call of whether or not the complaints are legitimate.
Finally, before I leave this category of gatekeeping due to perceived harm, I’ll say this: divorce is life-changing, but it’s not the end of the world. You are not a victim; you will get through this.
DIVORCE IS LIFE-CHANGING.
It is the single biggest stressor (after death of a loved one), and it is not for wimps. If you are going through a divorce, my heart goes out to you and I will embrace you when you enter my office.
One of the biggest fears of separating is losing your child, who you have always seen every day of your life. If you are the primary parent, this fact is life-shattering. It is natural and expected for the primary parent who has changed all their diapers, breastfed for 6 years (yes, I did!), packed all their lunches, taught them math, sang to them, taught them piano, healed their wounds, to be separated, for even a day from their children.
And if your ex was the one always gone, it is NORMAL to have a gatekeeping attitude, because how the hell will the children survive with him? He feeds them popcorn for breakfast, lunch and dinner!
In the case of separation with very young children, I implore both parties to GO TO COUNSELING and employ a Parenting Plan Coordinator. UNDERSTAND what it is you are asking for. To the Pro-ball player who wants “50-50”, what happens if you get it? Where will the child be when you’re off around the country? Is it in his best interests, or are you trying to avoid child support? In cases of babies, I am a fearless advocate of NO overnights until breastfeeding is over. Pumping is absolutely NOT the same thing. And bonding is crucial to well-development of child. If you are a father seeking 50-50 custody of a NEWBORN, read this article. Inform yourself. For very young children with primarily absent parents, I do NOT recommend a 50-50 plan. Not at all. However, for older children, the cases change. Even if the mom has raised the kids primarily for 10-12 years, at this age, it is not unreasonable to have a shared plan, especially if father will learn to step up. The strategy in this case is give the absent parent an opportunity, and wait and see.
Gatekeeping Due to Manufactured Harm: Evil and Inexcusable
The final category of gatekeeping is evil and inexcusable, due to “manufactured harm”. This is when one parent is making up shit to prevent the other parent from seeing the kid. Early in my career, the other side falsely accused my client (the father) of raping their 5 year old. The police appeared in the middle of the night; arrested the father, and gave the 5-year-old a rape kit. False abuse allegations are unacceptable. These false accusers need to go to prison. They must lose custody of a child, because their relentless lies will ruin them.
I have not actually seen too many of these cases walk into my door. If this is happening to you, and you are the victim of manufactured harm gatekeeping and/or parental alienation syndrome, you need to immediately hire a Certified Family Law Specialist to protect your rights. This is no joke.
Peace Amongst Anger
Finally, I hope that if you are separating with children, you find peace amidst the anger. It is absolutely true that sometimes the marriage ends and it is NOT your fault. I recognize that and I sympathize with you. Life is truly unfair. But if you have children, remember it’s not THEIR fault either. Please do not trap your child in the middle, and force them to lose a mother/father because of a divorce they didn’t cause. Your children are not furniture, or vehicles, or toys to be divided. Children need you to be strong and they need you to help work out a parenting plan so they do not lose a parent.