Gotta walk before you can run

Posted Thursday, March 29th, 2012 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys, Visitation

Quite often in my practice I will meet with a parent, typically a mother, who has been under an order of supervised visitation for a substantial period of time but is seeking an immediate return of custody.  They are bound to be disappointed.

In almost twenty years of practicing family law not only have I not had a client go directly from long-term supervised visitation to custody as part of a private custody case, I have yet to hear of a case in which this has happened.  Such a circumstance happens frequently in Department of Social Services abuse and neglect cases, but that is because there is often no other person seeking custody so as soon as a parent convinces DSS or the court that he or she has remedied the conditions that led to removal, the child is returned.  However, in private custody cases there is typically another parent seeking custody and it is hard to take away custody from one parent and award it to a parent who has no recent history of exercising unsupervised visitation.

This is because the analysis to go from supervised to unsupervised visitation is different than the analysis to change custody.  To lift a supervision requirement typically all a parent must show is that he or she is now “fit” (a term that is admittedly loosely defined, and has some gray areas, but for most cases if there is an agreement on the facts there will be little dispute on the issue of fitness).  These’s zero focus on the custodial parent’s attributes in determining whether a non-custodial parent should have a supervision requirement lifted.  In contrast, to change custody, a court is concerned with which parent can better “parent the child” (a concept that is wide open in interpretation).  Obviously resolving custody involves a sharp focus on both parents, and to change custody one must show that the child is likely to be better off with a different parent being primarily responsible for that child’s care.

For myriad reasons a court should be extremely reluctant to change custody to a parent who has no recent history of exercising unsupervised visitation.  It is hard to know how well a parent who has not cared for the child outside of some supervisor’s purview might actually handle that child if unobserved.  Sometimes, the behaviors or problems that led to visitation being supervised recur and the shorter the period a parent has been “fit” the more likely a relapse.  Given these uncertainties and risks, it’s not surprising that the courts are so reluctant to change custody to a parent who has no recent history of unsupervised visitation.

In moving a parent from supervised visitation to custody, a two step process is better.  Initially, one should move the parent to unsupervised visitation.  Then, after that parent has established a track record of stably exercising unsupervised visitation, one can seek to change custody if there is evidence that the child would be better off with the change.

Obviously counseling this course of action means counseling patience and most parents who are under an order of supervised visitation–especially if that supervision has been in place for months or years–are resistant to such counsel.  Still such counsel is best.  And when the supervised visitation has been in place for a substantial period and the other parent has done a good job raising the child, it is better to let the client understand that liberal unsupervised visitation may be the likely best result that one can achieve.

If a doctor treated a marathon runner who had suffered a horrific injury, leaving the runner in a state of temporary paralysis, that doctor would be foolish to encourage the patient to fixate on future marathon running but also foolish to discourage the patient from making this a long-term goal.  The ideal is to get this patient to focus on short-term gains (“let’s see if we can get you walking”) as part of a long-term goal (“let’s work on getting you back to where you once were”).  However, encouraging the patient to focus on marathon running as the immediate goal is mere cruelty: the goal won’t be achieved and focusing on it will merely discourage the patient from working towards incremental but beneficial goals.

A similar approach should be used for formerly-custodial parents who now suffer from an order of supervised visitation.  Without discouraging such clients from making custody a long-term goal (at least initially), the focus needs to be on first getting the supervision requirement lifted.  In my experience such clients who are willing to focus on getting unsupervised visitation often accomplish this quickly and (relatively) inexpensively and frequently go on to liberal visitation.  If the period of supervised visitation has been brief or if the other parent has not established a strong track record as a custodial parent, I have sometimes gotten such parents custody.   However, for these parents who refuse to focus on anything other than re-obtaining custody, my success rate may be zero: one needs to walk before one can run.