There’s a never discussed but occasionally employed litigation strategy of using money to purchase time with (or limit an opposing party’s access to) children.
Earlier this month I settled a case in which grandparents used money to keep their own daughter from having enforceable visitation with her daughters. At the time of mediation my clients had custody of their granddaughters, and their own daughter had no visitation. However, had the case gone to trial, there was always some chance their daughter could have regained custody and a significant chance that she would have gained some autonomous visitation. By relinquishing claims for past due (and future) child support and attorney’s fees, and agreeing to pay some funds (including some attorney’s fees) to their daughter, they were able to obtain a more stable and certain resolution. Disregarding their waived claim for ongoing child support, the amount they paid (including the waiver of past due support and fees) was substantially less than my trial retainer would have been. And this “investment” granted them a certainty that trial could not. Purchasing their granddaughters’ time was an excellent strategy/investment.
I typically see this strategy being employed in two distinct situations. One is as described above: when a non-parent uses money to obtain a favorable settlement on third-party custody and visitation. In fact, I can think of few cases in which I have obtained custody for a third-party through settlement in which that third-party has not waived child support from his or her own kin in order to achieve this result.
The second situation is fathers offering a more favorable resolution on child support or attorney’s fees than the case would otherwise merit in order to gain more time with their children (there’s no reason this strategy couldn’t be employed by mothers but, in the world I inhabit, men typically have more money and women typically have more control of the child). A parent trying to get one more day every bi-weekly period or an extra week or two at summer will sometimes find that request only gets serious consideration when sweetened with a little financial incentive. This is one reason I counsel clients who want additional time with their children to forgo a demand for shared custody child support. If the goal is truly more time with their child money is fungible and, if not easily replaced, at least rarely missed, while time with one’s child is a precious commodity.
Obviously, if one side is buying the child’s time, it means the other side is selling the child’s time. If purchasing a child’s time is a strategic consideration motivated by love, the converse isn’t so ennobling. Thankfully, I am at the point of my career in which few of the caregivers I represent are move motivated by money than by love. Perhaps, in a future communist utopia, considerations of financial resources would not intrude on considerations of child custody. Again, that is not the world I inhabit.
Considering when the judicious application of money might avoid a costly and risky trial should be party of every custody attorney’s litigation strategy.
I’m seeing this more often now that the Supreme Court has reiterated twice recently that we are not a joint custody state. Dads are buying more physical custody time. Sad.
Why sad? If the dad is happy getting joint custody and pays the mother rather than his attorney to obtain it, why isn’t that good for the dad? I doubt moms are giving joint custody to bad fathers simply to get money (if they are, they are equally bad parents). While it shouldn’t take money to get a parent to do the right thing, that is not the world we inhabit. As for the child, I assume less parental acrimony and more time with each parent is typically a good thing.
Perhaps Holly was eluding to the “not a joint custody state” as the sad part? If so I completely agree but must admit I am totally ignorant about the states rational for it.