Divorce Issues: The Complexity of Child Custody Disputes

Divorce always has a major impact on families, even when there is a mutual and amicable decision for a couple to split. When this decision is made in a less friendly manner, especially if it is a one-sided decision, the result can be traumatic for everyone involved.

This is why courts treat the matter of child custody seriously, and the way they make their decisions is not always going to fit your expectations. Every family has different circumstances, and the Family Court tries to work out solutions that will be in the best interests of the children (and this is a very important point).

This means the needs or wishes of the parents will be secondary to the welfare of the child, and in fact even the wishes of the child will be secondary to the welfare of the child, in the view of the court.

So this could mean, for example, that the child expresses a desire to remain in the care of one particular parent, and certainly the court will take that into account but custody will not automatically be granted to that parent if there is any evidence that might lead the court to believe that this is not in the child’s best interests.

In this article I will highlight some of the more unusual circumstances surrounding child custody issues, using specific case studies, which can help readers to gain a better understanding of how the court is likely to respond to different situations.

Case 1: The mother moved abroad and then suffered health problems

In this interesting case from 2005, the mother of a child moved to Spain after divorcing from the father. Prior to her departure from the UK, an agreement had been made regarding visitation between the father and the children, which involved monthly contact in the UK and in Spain (a rather complicated and no doubt expensive arrangement).

Subsequently the mother in this case became pregnant again while in Spain, and due to difficulties arising from this, claimed that she was then unable to continue with the arrangement that had been previously agreed to.

It is important also to understand that the father was paying financial support for the children while they lived in Spain with their mother. Why this all became a big deal was that the mother, who had up to a certain point retained legal counsel to assist her, stopped doing so.

From that point forward, the solicitors working on behalf of the father appear to have taken the view – based on the assertions they made to the court concerning this matter – that the mother had sought to disrupt communications by this action. They alleged to the court that the mother had increased the father’s own legal costs through her failure to communicate promptly.

Initially the judge ruled in favour of the father and awarded a hefty sum in indemnity costs, which the mother then subsequently appealed because as it turned out, the judge in that case had ruled on a faulty understanding that the mother had not communicated sufficiently, and furthermore had failed to appear in court without providing a valid reason.

This was subsequently found to be false because the mother had sent a letter and a medical certificate to the court to explain her non-attendance, however these never reached the judge, presumably due to a clerical error.

The mother was then subsequently granted leave to appeal that decision because the judges agreed that the costs awarded against her were not particularly just, on the grounds that those costs would probably not have been awarded if the error had not occurred.

Nonetheless, in assessing the matter of whether to grant leave to appeal, the judges in this decision did take into account that the mother had not properly complied with the instructions of the court and had communicated only with the court when she was supposed to send copies of that communication also to the father’s solicitors. Had she done this, the events that led to the award being made against her would not have occurred, because the solicitors and the judge would have taken a different view of her conduct.

The essential points to be drawn from this situation, even though it ended well on this occasion are:

• It is always best to work with legal consultants rather than trying to handle matters yourself
• You should always comply very precisely with any orders made by the court
• If you do not understand orders made by the court, you should seek clarification
• Communication should be made as early as possible, do not leave everything to the last moment
• Do not assume that your correspondence will be delivered appropriately, you should at the very least use registered mail or a courier service and require for documents to be signed for upon receipt.

Case 2: The father was accused of sexual abuse, and found not guilty

This is a hugely interesting case because it highlights a very big concern about law. The allegations of sexual abuse were dealt with in the Criminal Court, and in such cases there is supposed to be a presumption of innocence, meaning that the burden of proof rests with the accuser. The Family Court, on the other hand, is a civil court, and there the burden of proof rests with the accused.

As an example, if the police charge somebody for breaking a window, the police must prove beyond a reasonable doubt that the person they are accusing did in fact break the window and not somebody else.

However, if the owner of the window were to sue that person in the civil court for breaking the window, it would then be up to the accused person to prove that they had not done the damage. This actually means that anyone can sue anyone for anything without a shred of proof as long as they can be reasonably sure the other person can’t prove their innocence. The only thing stopping them is the risk of being in trouble for bringing a frivolous case, which is actually not very likely.

The problem with situations where there are concurrent criminal and civil proceedings being made against an individual is that there can be a tendency for the civil court to err on the side of caution that the accused is guilty (as indeed the court is required to, because on the civil side of the issue, guilt is presumed).

This case, if nothing else, highlights how very complicated individual family circumstances can be. The whole matter arose from the mother committing assaults against one of her children and against the children’s stepfather. In order to justify her assaults, she then accused the stepfather of having sexually abused the children (all three of them, not just the one that she assaulted).

The children were placed into foster care as a result of this serious incident and the allegations that arose out of it.

The mother then later retracted the allegations, but by then it was too late. The damage had been done, and the wheels of justice had to roll through their course of motion.

In what appears to have been coached testimony (and which the judges seem to have acknowledged as coached testimony in their appeal hearing statements) the alleged victim made statements that appeared to indicate that the father had sexually abused her.

The judge writing up this appeal matter alludes to the possibility of coached testimony in the pre-trial stage by pointing out the unusual wording used by the 14 year old victim when describing what took place, especially in light of the fact that she was a native speaker of Mandinka with a limited English vocabulary.

Of course we have no way of knowing whether or not this is accurate. The only thing we do know for a certain fact is that the jury in the criminal case, who had the benefit of hearing both the accused and his alleged victim giving testimony and being cross-examined under oath, found the accused not guilty.

Following the criminal trial, the mother appears to have calmed down quite considerably and in the words of the appeal judge, she “no longer believes that he [the father] raped [the child]”. This was based on the fact that the pair had reconciled and were once again living as husband and wife.

Having read all of the facts listed by the judge in the custody appeal case, it appears the jury made absolutely the right call in finding the defendant not guilty. No less than 17 points were listed, all of them strongly pointing to an entirely fabricated case against the father with no substance in reality.

The parents then appealed for the return of their other two children. The appeal judge made much of the fact that in the original custody hearing the parents were unrepresented. The principle point that he makes concerning this is:

“I am in no doubt at all that most of the unsatisfactory features of this case stem from the fact that the appellant, although made a party to the care proceedings, did not have the benefit of either legal advice or representation before the judge.” – His Honour, Lord Justice Wall, [2009] EWCA Civ 644.

Now this is not a light statement. The judge is deeply concerned about the fact that in two very serious court matters, a criminal trial and a custody hearing, the father had no legal instruction to assist him. This is despite the fact that even with this serious disadvantage against him, the father was still able to win his criminal trial.

But now we come to the crunch…although it seems the judge believes the father to be innocent and the case to have been fabricated against him, merely winning a criminal trial does not prove innocence. Most people do mistakenly believe that somebody acquitted in a criminal trial has proved their innocence, when in fact the truth is that it is simply that the prosecution has failed to prove guilt.

This leads to the really odd fact that the civil court is then placed in a position where it has to consider an acquitted man to be guilty until he can otherwise prove his innocence which is precisely why, in his opening remarks, Lord Justice Wall said:

“I have found listening to this appeal a dispiriting experience.” – His Honour, Lord Justice Wall, [2009] EWCA Civ 644.

Anyone placed in such a position would be appalled at the fact that through a technicality of law, they would have to take a position against a family that had clearly suffered a great deal and would continue to suffer, and yet it is the judge’s sworn duty to uphold the law and rule in accordance with the law. This means that the judge’s personal beliefs and feelings about the case have little influence in the way he is required to rule. He must rule based on the preponderance of evidence.

It is also a limitation of an appeal court that it must rule based on whether the proceeding was fair or not, rather than on a basis of subsequent happenings. So, in other words, it is the process of the case that is in dispute, not the facts.

As it turned out, Lord Justice Wall did not believe that the judge in the care proceedings had conducted the proceedings perfectly, yet he could not find sufficient support for the view that the judgement was “plainly wrong” and therefore dismissed the appeal.

The lessons to be learned here are:

• Relationships are serious business, do not enter into them without serious thought
• Always have competent legal assistance in criminal and civil proceedings
• You cannot necessarily rely on an acquittal in a criminal proceeding to support or favour your position in a civil proceeding. Civil matters are separate, and follow different rules.

Case 3: Children to remain with grandparents despite mother being fit to care for them

You could be forgiven for believing that the close biological relationship between parent and child would automatically give great strength to any custody petition by the parent if they were deemed fit to care for the child. After all, when considering “next of kin” in estate cases, a parent is usually given precedence over a grandparent. In custody cases, however, this is not necessarily so.

What makes this case very special indeed is that it involves 2 children placed in care of paternal grandparents where only one of the children is biologically related to them.

In this case the parents of the children had separated. The father was a heroin addict with numerous troubles, and the mother was at the time an alcoholic. It made sense for the children to be taken into some kind of non-parental care, and it seems that the parental grandparents were the safest choice available.

But then the story takes a twist!

Approximately six years later, the mother makes a full recovery from her alcoholism, and has remarried, produced a new child, and is in a stable and loving relationship. The contrast to her former relationship is such that it is difficult to imagine any regression.

Even though there were compelling reasons why the children should have been permitted to return to their mother’s care, which was her stated wish, the judge considered other factors including the length of time that the children had lived in the grandparent’s home, their academic performance, and the ultimate decision-maker was the stated wish of the older child that he remain with the grandparents.

This is fine, except that his sister is no blood relation to them, and also younger. It’s questionable whether children always know what is in their own best interests. The more deeply concerning aspect is that the grandparents did not have a good track record for raising children previously, and their son had an unfortunate habit of showing up at their house and causing “unpleasant scenes”.

What is clear, however, is that the court places more value on the wishes of the child than on the wishes of the parent, and that genetics are not as strongly persuasive as you’d probably expect.

The take out from this is:

• Think carefully and plan ahead before getting into voluntary custody agreements
• Build in “escape clauses” that may help in case of future changes of circumstances
• Plan for succession of the custody agreement, in case the guardians of the children should become unable to continue to care for the children.

Really, because what’s at stake is so important, it’s best to get legal advice early, and it’s very wise, as Lord Justice Wall pointed out, to avoid appearing in court without assistance. To find out how Hylton-Potts can help you in matters such as these, simply call us on 020 7381 8111 or send an email to [email protected].

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