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Child Custody Case Study - Part 1

Monday, 01 December 2014

mother-and-sonEvery judge knows that most cases where two parents have gone to court for custody will cause some discomfort to any children of the parties.  

There is no way around it, which flows from the child’s uncomfortable and growing understanding that there will now be a drastic change in the cozy family dynamic that used to occupy every minute of a child’s day. Even the best Colorado Springs attorneys can only go so far to stanch the tears rolling down the face of a child whose relationship with his mother and father will change forever.

Marrison Family Law Raised Five Important Points to Question the Trial Court’s Decision

The Court Failed to Consider  The “Least Detrimental Alternative” when it decided  that Steven would be the Primary Residential Parent in Iowa

How does a court accurately assess which parent will provide a better home for the child?  It’s not easy. The process of finding what is in the best interests of the child (BIC) is a complicated and multi-faceted undertaking for any court. Marrison Family Law argued that pursuant to prior case law in Colorado, the judge is required as a part of the BIC process to look at the “Least Detrimental Alternative” and make factual findings to try and minimize potential harm to the child under C.R.S. 14-10-124(1.5) and 14-10-129 (2012).

If done right, the trial court and its PRE, working hand in hand with attorneys like Marrison Family Law, can delicately gather enough information and make a decision which, though painful, causes the child or children the least amount of discomfort. 

Here, Marrison Family Law showed the appellate court, point-by-point, how Judge Bristol and the PRE Dr. Richard Holmes completely failed to consider and make findings about those factors that were considered when the court made its “Least Detrimental Alternative” analysis.  

Important Factors the Judge Failed to Address

What were the important factors that Judge Bristol failed to address, or include language in his final order indicating that he considered? 

  1. Domestic Violence
  2. The wishes of the parents.
  3. The wishes of the child
  4. The interaction and interrelationship between the child and his parents, siblings, or any other person who may affect the child’s best interest.
  5. The child’s adjustment to home school and community
  6. The mental and physical health of all individuals involved
  7. The ability of the parents to encourage the sharing of love and affection between the child and the other parent
  8. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support
  9. The physical proximity of the parties to each other 

What was the evidence pertinent to the factors that Judge Bristol failed to consider? 

  • The father had limited parenting time with Ethan before the court order changing Ethan’s  primary home to Iowa, and would be leaving his Iowa home and regularly leaving his son behind to be deployed to new locations by the U.S. military;
  • The child would have to move more than 1000 miles across the country, from New Hampshire to Iowa, completely changing his physical environment;
  • The child had a limited relationship with his stepmother, and no real relationship with his stepbrother;
  • The child had a close relationship with his brother at Maggie’s residence, and would be devastated to be apart from him;
  • The child had other strong relationships in the New Hampshire community that would be terminated if he moved 1000 miles away;
  • There had been allegations of child abuse against the father that were dismissed.
  • That the child had mental health issues that were not sufficiently addressed by the trial court, including a hospitalization shortly before trial.

In cases where one parent is asking the court to make a substantial parenting change, like where the child will spend most of his time, author Benjamin D. Garber also suggests several alternative options usually exist that might have a lesser impact on the child.1  Garber indicates that several of the “Least Detrimental Alternative” options for such a huge change can include:

  1. the parents individually going to  proper counselors that teach them to separate the child from their own conflicts and arguments;
  1. Intervention by a close relative or other family members, or other members of the community that know and care about the family, and can play some role to impact the behavior of one or both parents;
  1. That both the mother and the father can get couples or group counseling.

Here, the father was asking the trial court for a drastic alternative - to uproot the child from his biological mother, the only mother he had ever known, his sibling, his school, the wider community, everything that a child can hold dear and lean on during difficult times. Yet the final order of the court, and the PRE report from Dr. Richard Holmes on which it was based showed the court completely failed to show these issues were even considered.

The Court Failed to Consider the Child was Emotionally Disturbed

Some evidence had shown that Ethan was emotionally disturbed. Why, argued Marrison Family Law, would it be right to take an emotionally disturbed boy away from the only woman he has ever known as a mother, leaving him with a stepmother that Ethan only met once, and a step-brother he probably could not even remember?

An emotionally disturbed child needs familiar faces, the faces of children he knows and family he trusts, kids he sees in the neighborhood, and ongoing medical attention, argued Marrison Family Law. 

Even the PRE Dr. Richard Holmes had indicated that if the child has a “biological” illness (like a bipolar disorder, for example), and the child were removed from the mother’s care, the change could be catastrophin to Ethan, an could cause him to deteriorate, even to the point of hospitalization.

If Judge Bristol had done his job and fairly applied the “Least Detrimental Alternative” analysis in the first place, Marrison Family Law argued, none of this would have happened.

Maggie would be with Ethan, the father would have reasonable parenting time, and both Maggie and Steven would be seeing therapists to help cope with the changes. 

Instead, Judge Bristol had awarded residential custody to Steven anyway. He found among other things that Maggie was intentionally obstructing Steven’s visitation, that Ethan suffered serious behavioral issues, that Maggie had “Borderline Personality Disorder” and that she had committed something akin to child abuse herself when she accused Steven of child abuse.

What the Appellate Court Thought of Judge Bristol’s Decision

The Court of Appeal vacated Judge Bristol’s decision in its entirety and ordered a new trial, giving the trial judge instructions on how to view the case when it was retried.  Regarding the narrow issue of whether the court properly considered the “Least Detrimental Alternative” factors, the appellate court asked Judge Bristol to consider that the Best Interest of the Child necessarily included the Least Detrimental Alternative.  It also determined that the trial judge was required to support any ruling with specific factual findings which he had failed to do. 

Specifically, Judge Bristol had ruled that Maggie’s actions suggested she might suffer from Borderline Personality Disorder, that her child abuse allegations themselves could be seen as child abuse.  Furthermore, as to a pre-trial hospitalization of the child, and Judge Bristol ruled that  Maggie took Ethan to the hospital only delay trial. 

The Appellate court found that there was no evidence that Maggie suffered from any mental disorder, that there was no evidence whatsoever that Maggie orchestrated a pre-trial hospitalization to delay trial, and that to the contrary, the only evidence in the record showed that Ethan’s hospitalization was for medical and psychological reasons.  

The Court of Appeals made a specific direction to Judge Bristol that a mother who reports abuse to her child is not guilty of child abuse in making such a report.  The Court of Appeal then directed Judge Bristol to support his decision with a specification of the BIC factors and evidence, thus justifying his order. 

Because the court failed to specify which factors were the core supporting columns of its decision to give Steven primary residential custody and decision-making authority, the appellate court vacated Judge Bristol’s order and remanded the case to the trial court for further proceedings. 

1Benjamin D. Garber, “Parental Alienation and the Dynamics of the Enmeshed Parent-Child Dyad: Adultification, Parentification and Infantilization”, Family Court Review, Vol. 29, April, 2011.

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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