Child Custody and Visitation

Andrea Kaye and Stan Prowse Legal Eagle Radio

Child custody and visitation determinations are undergoing a seismic shift.

Traditionally a parent's behavior was described. Now it is diagnosed. For example, instead of Dad being self-centered, Dad is now narcissistic.

Of course, narcissism has been around for a long time. Narcissus was the beautiful son of two Greek gods, who fell in love with his own reflection in a spring and pined away looking at himself.

However, there were no psychologists in ancient Greece. Now there are plenty of them around, and they fancy themselves scientists. Their principal pastime is slicing human behavior into smaller and smaller slices, and giving each slice a supposedly scientific label.

The psychologists' bible is the DSM, a kind of ever-expanding dictionary of the supposedly scientific labels they've thought up. Hand in hand with the DSM is a series of standardized tests that purport to measure personality in terms of the labels, including the intensity - or variance from 'normal' - of the behaviors corresponding to the labels.

The idea is to get a handle on what is or isn't abnormal about someone, label it, and if it's a highly intense abnormality, proceed to devise some sort of therapy to reduce it. Intensely abnormal behavior thus becomes treatable mental illness.

Simply Self Centered or Mentally Ill?

Self-centered people are a dime a dozen. They're not sick. They're just irritating. You do your best to live with them. Label them narcissistic - intensely narcissistic - and it's another ballgame. Now they're mentally ill and require psychotherapy.

What does this have to do with child custody and visitation decisions? A great deal. Let's take self-centered Dad. He's been driving Mom crazy with "me, me, me" almost from the time they married. Their two kids are now fourteen and ten and don't like Dad's behavior any more than Mom does.

Mom's had it up to here and decides to divorce Dad. With her petition she files a request for an order granting her temporary sole physical custody and joint legal custody, with visitation for Dad every other weekend from Saturday morning till Sunday evening and Wednesday evenings after school.

Dad is furious. He wants joint physical custody and a 50/50 time share. They go to mediation, and the Family Court Services mediator gets the message that Dad cares more about himself than the kids. Now it's "ME! ME! ME!" The mediator interviews the kids. The fourteen year old now has a right to be heard. She is adamant that she wants to spend as little time with Dad as possible. So is her little sister. In her report, the mediator notes Dad's narcissistic personality and recommends to the court to order what Mom's asked for.

FCS - Family Court Services Report

The judge reads the FCS "Family Court Services" report, and gets the picture on Dad. Dad's attorney follows Dad's instructions to 'fight for him for the kids' and only confirms the judge's picture. Mom's attorney refers frequently to Dad's narcissistic behavior in her argument for Mom.

However, the judge does not follow the FCS recommendations entirely. Dad's every other weekend will start Thursday evening and run until he takes the kids to school Monday morning. The judge also orders Dad to take a parenting class and go to therapy while the case otherwise proceeds.

Mom's upset and angry. So are the kids. What happened? First, the judge is most concerned (as the Family Code dictates) with the "best interest of the child." Second, a healthy and bonded relationship between a child and both parents is in the child's best interest. Third, Dad's extreme narcissism is a form of mental illness and stands in the way of that relationship.

For the best interest of his children, therefore, we need to treat Dad's illness and make him better, so his relationship with them (and coincidentally with their mother) will normalize. The judgment at the end of the case can't order Dad to continue in therapy, but while the case is pending, we'll do what we can to cure Dad.

Wait a minute! Aren't we divorcing these people? Isn't it a little late to worry about fixing the problem that caused the divorce in the first place? The Family Court Services mediator, the judge, and the legal system represent the State of California, which in turn represents the taxpayers. Why should they care about Dad's problems?

The answer seems to be that it is worth pouring judges, mediators, psychologists, therapists, lawyers, time, and money into divorce court to help the children of divorced parents grow up to be normal adults. The "Family" we are concerned about in the Family Code seems not to be the the pre-divorce intact family, but the post-divorce broken family.

Parental Agreement On Child Custody and Visitation In A Divorce

In practice the result is this. If you are a parent with children entering a divorce, and you and your spouse cannot agree between yourselves on child custody and visitation, you are about to enter a mental hospital. The more you fight over the kids, the more convinced the judge and everyone else will be that there is something wrong with one or both of you that needs fixing.

You will eventually be diagnosed and labelled with some intensely abnormal behavior named in the DMS. Then you have three choices. First, deny the label and continue to fight. This is a sure way to lose the fight and lose your kids. Second, defiantly deny the label and in disgust give up the fight. This is also a good way to lose the kids.

Your third choice is to admit there might be something to the label and go with the flow. This may be the most difficult choice to make, because it means acknowledging that there may be something WRONG with you.

Maybe there is, maybe there isn't. One thing is for sure - you earn many more points by agreeing with a judge than by arguing with him. So, go to therapy, and consider the possibility that during all those years you thought you were normal, you weren't. It might be painful, but isn't it better than losing the kids?

Say goodbye to, 'I'm right and you're wrong.' Say hello to, 'Why don't you tell me how you feel about that.'

San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.