Thursday, January 10, 2008

Alienation of Affection- Real Child Custody Questions

Dear Famularo & Associates: My wife and I divorced a couple of years ago and it wasn't very amicable. We didn't agree on anything and our children were right in the middle of this. We ended up with joint custody of our son (12) and our daughter (10). We see each other frequently because of the kids. I love our kids just as much as she does and I make a point not to speak poorly of her in the presence of the children. I think she should do the same, but she doesn't. I recently got engaged and I'm going to get married in February. My fiance is a decent person and she is interested in having a meaningful relationship with the kids. My wife is constantly saying horrible things about me and my fiance to our kids to the point that it's upsetting them as well as me and my fiance. I have heard that I might be able to obtain full custody of the children if I can prove alienation of affection. I am not sure this is something I should do. -- Mike C. in Temecula Dear Mike: Unfortunately, when two people have a child it binds the parents together for the rest of their lives. Virtually every court order contains a clause which states neither parent should make disparaging remarks about the other in the presence of the children. This is what we call an "unenforceable order." In order to enforce this type of order, there would have to be a policeman monitoring every word your ex-wife said. The policeman would then have to arrest your ex if she made any negative comments about you. Since no one is monitoring the mother of your children, she can say pretty much anything she wants without many legal ramifications. The only thing you can do it to try to obtain sole physical custody of your children based upon alienation of affection. However, it is a lose-lose situation for you. If you are not successful getting custody, your wife will try to ruin your relationship with your children even more. If you win, the children will probably resent the fact that you took them away from their mother. Sadly, it is almost impossible to completely protect a child from his or her own parent. You need to know that you are doing the right thing, though. Do not take your ex-wife's bait and make negative comments about her simply because she is making them about you and your fiancee. Your children are of an age now that they know exactly what is going on. They can see for themselves that their mother is the problem, and usually this type of behavior will backfire against. No matter what you ex-wife says, your fiancee should stay out of it. Any comments she makes, anything she does will usually be met with resentment by your children. Since the divorce, your children are struggling with only being able to see you half the time. They are also undoubtedly struggling with their mother's constant negative comments about you. Any attempt by your fiancee to "fix" the problem will make the children feel that she is either picking on their mother or forcing them to compete with her for your affection.Your children will soon be old enough to have a say in custody and how often they see each parent. The good news is that teenage children almost always end up with the parent who takes the higher ground. So, be patient and hold your tongue. Show respect for your children by not disparaging their mother. Your children will not be young forever, and once they are a little older your behavior will pay off in a the form of a close, lasting bond with your children. --Famularo & Associates