In May 2006, my husband and I were packing up the hospital room where I had spent the past five days after the birth of our eldest daughter. We double-checked the room to make sure that we had everything we needed to take her home: package of diapers, samples of formula, an aspirator, and, of course, the thoroughly researched, safest car seat on the planet. The doctor came into the room to complete the discharge papers and the nurse confirmed that we had accurately and securely fastened our child in the car seat. So, my husband confirmed with the hospital staff that the only thing we needed before we left was the owner’s manual, right? Everyone laughed (except my husband and I), and off we drove to start the journey known as parenting.
Parenting is challenging enough on its own with two people living together in harmony in the same household; but, when those two people separate, the parenting journey takes on a new route. The family lawyer frequently takes various parts of the parenting journey with our clients. Oftentimes, we have to get them on the path of co-parenting with the other party, which can be the most difficult part of a family lawyer’s job: teaching parties to co-parent children with a person whom they no longer wish to share anything.
Our part of the journey usually begins at the initial consultation. For example, the client says, “I want to have full custody of our 2-year-old son. His father is a drunk and my son should not be away from me that long. We have had an informal custody arrangement since we separated six months ago where we take turns, weekly, seeing the child and it’s too long for my son to be without me.” I say, “Why is he a drunk?” The client says, “He had a DUI four years ago and I know he drinks beer after he puts our son to bed.” I ask, “How do you know he does this?” She responds, “Because he always did it when we were together — that is why we separated.”
What clients want and what our laws provide for can be very different things. When Pennsylvania’s January 22, 2011, custody statute modifications went into effect, the list of enumerated criminal offenses that the court is now required to consider, if raised, was expanded to include additional crimes, one of which was driving under the influence of alcohol or controlled substances. It is important for us to remind our clients that, although the court is required to consider certain crimes, the specific offense is weighed appropriately.
In the example above, I would explain to the client that although the father’s DUI is something the court will consider, the fact that it occurred two years before the child’s birth and that the father has had an informal arrangement for shared physical custody for the last six months will be given greater weight. Although his habitual drinking might have been the reason the client and the father are no longer together, the fact that the client knew about his drinking and agreed to share physical custody of the client’s son, and are now complaining that he is a drunk, will be a tough sell. In other words, we shouldn’t complain about his drinking now, but we will in the future if it becomes a parenting issue. The bigger dilemma for a family lawyer is when the client insists on your arguing her point of view, despite your guidance that this type of scenario would, most likely, not play out in her favor.
Now, whether my client and I mention the four-year-old DUI or not, the father will have to disclose it under the new custody procedural rules that will go in effect in September. Pa.R.C.P. 1915.3-2 requires a petitioner — in either an initial custody complaint or in a petition to modify — to attach a criminal or abuse history verification for himself or herself as well as all members of the petitioner’s household. Although a respondent does not need to answer the underlying complaint or petition pursuant to Pa.R.C.P. 1915.5, a criminal or abuse history verification for the respondent and anyone living in his or her household must be filed and served upon the petitioner.
It should be noted that the explanatory comment to this new procedural rule requires the court to consider the criminal or abuse evidence presented by the parties and that the court itself does not have an affirmative obligation to perform its own investigation of the parties and/or their household members. The comment does specifically state that the court should not consider any accelerated rehabilitative disposition or diversionary programs when considering criminal or abuse evidence presented.
So, let’s presume that we now have a temporary custody schedule that essentially mirrors the parties’ informal schedule of one week with each party. What is the next step in the journey? I informally refer to the next step in the journey as “acceptance.” This is the hardest step because you have to help your client “accept” and learn to live with the situation that he or she has now created. “Accept” the fact that this is the person you chose to have a child with. (Please note that your attorney did not select this person and it is not your attorney’s fault that the person you picked is not the perfect parent.) However, you must learn to jointly raise a child with this less-than-perfect person. “Accept” the fact that you will only see your child for a portion of the time by learning to do other things when it is the other parent’s time, such as grocery shopping, working late, etc., so that your custodial time with your child is time spent truly with your child.
And lastly, “accept” the fact that you now have to force yourself to communicate with someone you wish was no longer in your life. This is usually the hardest step. Most clients get there eventually; some never do. The problem I have observed is that you cannot co-parent if both parties do not get there; but, if they don’t, that is what family lawyers are here for. We may not have an owner’s manual readily available for our clients, but we can provide GPS-like qualities by helping them understand and navigate the law to eventually make their single-parenting journey a little smoother.
Lisa Shapson is a family law attorney with Berner Klaw & Watson and co-chairs the divorce/equitable distribution committee of the Philadelphia Bar Association’s family law section.