Can Your Child Custody Order Predict (and Control) the Future?
The short answer is no, but this is Child Custody law, and it’s never that simple.
The truth is that there are certain future events that Courts cannot account for in their orders and certain events they can. And there’s also certain things Courts can do about future events and certain things they can’t. What’s the difference? What are some examples?
The difference and important distinction between when a court can predicate an order on a future event is whether the subject of the litigation, itself, was the effect and or potential opportunity and or damage related to an identifiable future event and the remedy is narrowly tailored to address the effect of that event.
A prime example from a recent case where a court CAN do this involves a parent threatening and or reflecting an intention to relocate out of state with a child. Our courts have determined that they CAN enter an order stating that IF the parent relocated out of state then physical custody of the child would vest in the other parent objecting to the relocation.
On the other hand, our Courts have said they CAN’T automatically suspend a parent’s visitation if they move more than 25 miles away from where a child lives even though the Court CAN order that parent not to do so. Here, even though the event is identifiable, just like a parent relocating out of state, the parties haven’t specifically litigated the “effect” of 24 miles versus 26 miles and suspending all visitation is overly broad and perhaps even punitive rather than in the best interests of a child.
There are still some due process questions here, but you see these contingency clauses a lot in Child Custody cases. Thoughtful, well-meaning Judges are attempting to craft a custody and visitation order that will stand the test of time. The problem is when a Court says “if X then Y,” whose word do we take that X happened? What incentives does that create for bad actors? What if a relocating parent decides not to relocate but just go to the lake house in Michigan for 2 months during the summer. What else is going on in a child’s or parents’ lives that may offset the effect of the future event (X) that the relief (Y) upon which Y is predicated?
Everyone wants clear cut answers, and we certainly do our best to answer them, but so often we just end up with more questions. Dr. Malcom from Jurassic Park taught us that the “chaos” we’re so afraid of is just life finding a way. Get comfortable in the chaos because you’re not going to stop it. Get your head and heart right, get your team together and take solace that the questions to be answered and the problems to be solved won’t stop. We just get better at dealing with them, hopefully anyways.
This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot