An excerpt from Alec Baldwin’s new book “A Promise to Ourselves: A Journey Through Fatherhood and Divorce” can be found here at ABC.
I went to the movie Stop Loss last night. One of its messages was how the army uses the full power of the state to coerce soldiers into serving another tour in Iraq.Basically you sign a contract to serve 5 years and then the President tells you you can’t leave and have to take another tour of duty. If you refuse you are branded a fugitive – the only option being to flee to Canada or Mexico.
In my mind, non-custodial fathers are in exactly the same position. A parenting or divorce agreement can be changed at any time and if you rebel you get slapped down by the full force of the system. Except you can’t flee to Canada because they have the same system!
I had visitation built into a parenting plan and final decree but the judge refused to enforce visitation because in her words, “they are old enough to choose if they want to see you”. So much for all the courts BS about mediated parenting plans etc. Of course, deciding not to pay child support would result in all sorts of penalties, including imprisonment.
In theory, Nevada awards custody according to the “best interests of the child”. While I believe equal parenting is almost always in the best interests of the child, I deliberately chose to not contest physical custody in my own case. Let me explain my thinking so you can apply it to your own situation.
First, my (highly experienced) lawyer told me not to bother, which did not inspire me with confidence. Second, there is a low probabiliy of success. There are no readily available statistics on custody in Nevada but data in other states suggests that fathers receive sole custody in only 5-10% of cases. Third, the cost can be prohibitive. According to one site, the cost of contesting custody is “the cost of a new car” (i.e. tens of thousands of dollars). Fourth, the time, which can be as long as 18 months or more. Fifth, the emotional distress on the children of contested custody. Sixth, the fact that child support is not automatically reduced in Nevada even if you have 50% custody, and seventh, the liklihood that my ex would attempt to accuse me of domestic violence to win custody.
All unresolved custody issues must go through court-ordered mediation. At this session, I basically agreed that the ex could have sole physical custody (but joint legal custody) and outlined a visitation schedule. The mediation agreement was presented to the court, signed by the judge, and entered as a court order.
Physical vs. Legal Custody
I do have joint legal custody of my children – meaning (in theory) that I have an equal say on medical, religious, and educational decisions.
The reality is that I have not seen my children for 18 months. They started not wanting to meet me for visitation (no doubt encouraged by my ex). When I petitioned the court to enforce visitation the judge said they were old enough to make up their own mind whether they wanted to see me or not (thus displaying a complete ignorance of the concept of parental alienation).
My ex has also gone ahead and ordered orthodontic procedures worth thousands of dollars without my consent and has attempted to have the court order me to pay half of $18,000 towards a summer camp that I did not consent to. Of course, I do not receive any school reports or notifications of school events. I learned through the newspaper that my daughter received a national merit scholarship.
I deeply regret not having contact with my children during this period of their life. There is no recognized path to regaining contact and I only hope that they will attempt to contact me some time in the future. I continue to send them birthday and Xmas gifts and monitor their school progress.
I’m not sure I would do anything differently – my jaded take on the legal system is that custody is a wonderful way for lawyers to run up billable hours but most of the time the result will not change (especially given my ex was a stay at home mom for the entire marriage and not addicted to anything).
Why does contesting custody cost so much and take so long?
A judge must order an evidentiary hearing to determine custody if the parties cannot agree. Both sides may engage in discovery (see later post on discovery) which can take months to gather relevant documents or take depositions. It is also common to engage expert witnesses and the court itself may order an independent evaluation (paid by the parents). Given that experts must be paid and that both lawyers will charge for time in depositions and preparing/gathering documents this can quickly become very expensive.
Custody law in Nevada is governed by NRS125 (relevant parts reproduced below).
NRS 125.480 Best interest of child; preferences; considerations of court; presumption when court determines that parent or person residing with child is perpetrator of domestic violence.
1. In determining custody of a minor child in an action brought under this chapter, the sole consideration of the court is the best interest of the child. If it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly.
2. Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.
3. The court shall award custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:
(a) To both parents jointly pursuant to NRS 125.490 or to either parent. If the court does not enter an order awarding joint custody of a child after either parent has applied for joint custody, the court shall state in its decision the reason for its denial of the parent’s application.
(b) To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.
(c) To any person related within the third degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.
(d) To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.
4. In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:
(a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his custody.
(b) Any nomination by a parent or a guardian for the child.
(c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
(d) The level of conflict between the parents.
(e) The ability of the parents to cooperate to meet the needs of the child.
(f) The mental and physical health of the parents.
(g) The physical, developmental and emotional needs of the child.
(h) The nature of the relationship of the child with each parent.
(i) The ability of the child to maintain a relationship with any sibling.
(j) Any history of parental abuse or neglect of the child or a sibling of the child.
(k) Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.
5. Except as otherwise provided in subsection 6 or NRS 125C.210, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child.