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E53: Things people do wrong in child custody disputes

On the Show Today You’ll Learn

Ben and Heather have put together a “top 10” list of mistakes people make when it comes to child custody disputes.  In this episode they explain why each of these is a mistake and what you could consider doing instead.

  1. Bad-mouthing the other parent – especially in front of your child.
  2. Trying to make your child feel sorry for you.
  3. Refusing to communicate with the other parent.
  4. Denying the other parent access to their child.
  5. Putting your own interests ahead of your child’s.
  6. Making big decisions about your child without consulting the other parent – ie/ school, medical treatment, place of residence.
  7. Telling your child that they get to choose their living arrangements.
  8. Lying to the court about your drug or alcohol use.
  9. Coaching your child before family report interviews.
  10. Breaching court orders.

Links & Resources Mentioned in This Episode

Check out our previous podcasts on children and parenting arrangements

E1: Helping children to cope with divorce and separation

E5: Child focussed parenting arrangements after divorce

E34: Successful co-parenting

E39: Coping with the holidays after separation

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Full Episode Transcript

WELCOME: Things people do wrong in child custody disputes

Benjamin Bryant: Welcome to episode 53. I’m your host Benjamin Bryant from Bryant McKinnon Lawyers. In this episode, I am joined by my partner and family law expert, Heather McKinnon to discuss all the things people do wrong when it comes to child custody disputes. And trust me, the mistakes are many. In preparation for the episode, Heather and I composed our list of the top ten mistakes people make when it comes to getting the parenting arrangements that they want. We then explain why this is a mistake and what you may consider doing instead. We hope today’s show will help you avoid costly mistakes. And if you know anyone who is trying to optimise their parenting arrangements, please share this episode and help them avoid these blunders. And now on with the show.

Benjamin Bryant: Heather, are you ready to start with our first mistake?

Heather McKinnon: Oh I don’t know.  I wish there wasn’t any.  But yup, give it to me.

Mistake #1: Bad-mouthing the other parent.

Benjamin Bryant: Here we go! Bad-mouthing the other parent, especially in front of your child.

Heather McKinnon: Yes, it is incredible how adults don’t understand the impact of a child hearing that half of their DNA is not to be valued. It’s something that we see every day, but the damage it does to children is incredible. I would always plead with adults to understand that the children love both parents and even in really torturous situations, they’re very loyal to both parents. And, to convince a child that their parent is a bad or evil person isn’t going to get you anywhere in the long term. It’s something you just have to really stop doing.

Benjamin Bryant: Yeah, and I love how you said the word hearing. I sometimes have to reality test clients when they come in because they’re like, “Oh, they were in bed”, or “They were sitting in the car”. “They didn’t hear me”. But we know that’s not true. when you’re, yelling at someone or badmouthing someone, it’s not for children’s ears. And they know, even if you’re doing it very softly, they can pick up on the nuances, even as a very small child, can’t they?

Heather McKinnon: And look, I think things like speaker phones in car is a classic story. We’ll even ring clients and they’ll be talking to us in the most derogatory terms. And then you’ll say, are you in the car with your kids? And we have to parent them. Really bad.

Benjamin Bryant: And I think a lot of people need to understand as well just the impact of conflict. the court has put out so many resources in the last couple of years to try and educate the community about the effects of conflict, parental conflict, on to children. Because children are really resilient. Children can cope with stepparents, new schools, new homes, all these different things, but they can’t deal with conflict. That’s what’s going to impact them most. And a lot of people don’t understand that.

Heather McKinnon: Yeah, that psychological safety that you need to provide your children is critical to their self-worth. And that’s the thing that all parents have got to do. Understand that if your kid’s to reach their potential, their self-worth has got to be as intact as possible when they leave home.

Benjamin Bryant: And so Heather, other than saying don’t badmouth the other parent, what do you say? What could the parents do instead?

Heather McKinnon: Well, obviously I’m a big, big fan of, getting people to get into some sort of counselling or therapy with someone in a cone of silence away from their cricket team. and to really, talk through those feelings that are very, very, heightened at the time of a breakdown of a relationship. So debrief with a professional, go your hardest. But in an environment that your children are not going to hear, feel or see.

Mistake #2: Trying to make your child feel sorry for you.

Benjamin Bryant: Absolutely. All right. The next one: trying to make your child feel sorry for you.

Heather McKinnon: Yeah. I was probably 10 or 15 years into the job before I really got an understanding of what this means. There was a very good, child psychiatrist that trained my generation, and he was the one who first taught us about parentification. So that’s when a child takes responsibility for the emotional and psychological health of a parent. It’s very, very easy for a parent who feels wounded and lost to lean on their children, to replicate what they had in the intimate relationship with their partner, with their children. What they don’t know at that time is that they’re creating lifelong damage for their kids. So it’s a very subtle form of damage and people often aren’t able to identify it, but it’s really important that if you’re starting to feel that you can communicate and offload onto your children, even if they’re at high school, you really need to get some help to stop it. Because that damage, which is what I didn’t understand, is some of the hardest to undo in therapy.

Benjamin Bryant: And that’s what I was going to ask Heather, what is your understanding of some of the damage that does play out when parentification happens?

Heather McKinnon: Well, it becomes almost impossible for the child to trust or feel that they have the right to emotional safety. So what they do is, they start to control, if you like, their emotions and keep them in check. Because they’ve got nobody that they can depend on to let down their guard, because the person that they were able to do that with, that is their parent, has switched the table.  And so then for the rest of their life, they’re in control always because they don’t feel able to get emotional support from anyone because trust is broken in that reversing of the parent-child relationship.

Benjamin Bryant: That’s right. And the parents asking them to think about things that their little brains can’t even comprehend, they can’t even physically or physiologically comprehend.

Mistake #3: Refusing to communicate with the other parent.

Benjamin Bryant: Heather, number three: refusing to communicate with the other parent. How is that a mistake?

Heather McKinnon:  You just remember when you were infant’s primary school, and your parents entered that space. You wanted to be proud of them. You wanted, your friends to see your mum and dad. And instead, some of these little ones we see, has had this war zone happening at the school gate. They’re really conflicted. It’s a terrible, sort of scenario that plays out where up until the separation, all their little friends saw the mum and dad as communicating well and suddenly it’s daggers at the school gate, and the parents have this icy demeanour. They won’t acknowledge the other parent. It’s really difficult.

Benjamin Bryant: Yeah. And going back to what I said before, Heather about when we reality test clients about what they’re saying in front of their children, about their partners or to their partners and the impact it can have on them, I also find myself sometimes explaining to them how the lack or the absence of communication can be just as bad. I recall this matter where there was a lot of conflict, and there likely still is a lot of conflict between the separated parents. And there were two children. And essentially the parents would have a war by text message about someone didn’t return the lunchbox, or there was supposed to be gymnastics in the afternoon or something, and they were calling each other names, essentially just atrocious text messages between them. But then at changeover… I’m like, how does the changeover go? if you’re doing all of this beforehand, how does change over go? “Oh, it’s fine. We do nothing in front of them.” I’m like, yeah, but how does it go? And like, I don’t say a word to her. That can be just as damaging for these children.

Heather McKinnon: And I plead with people to have a look at families that have navigated separation over time. One of the greatest examples is if you go to a wedding, and the parents separated when the kids were in childhood, but everyone’s at the wedding, the new partners, the speeches, there’s a respect, there’s friendship. Even though the marriage may have ended decades before. That really is a reality of what we’re aiming for. In this culture, 1 in 2 relationships will end. We need to understand that that’s statistically going to hit a lot of people, and we need to have a better way of showing kids that even though that happens, it doesn’t mean that there’s not respect between the parents that the kids can feed off.

Mistake #4: Denying the other parent access to the child

Benjamin Bryant: Yeah. And ramping up to mistake number four: denying the other parent access to their child.

Heather McKinnon:  There are lots of reasons that this happens, but that weaponizing of a kid in a conflict zone is worse than I think how anything plays out in a war. I mean, there are good reasons sometimes when parents do things that are at risk to the child. And so the contact might stop. But there are many, many cases where that’s not the case. It’s the emotional wounding of the parent that means that they just can’t understand what they’re doing when they say, no, you can’t have the child. Or turning the child into a piece of property, isn’t it Ben? It’s a horrible thing to watch.

Benjamin Bryant: That’s right. And as we’ve discussed numerous times on previous episodes, Heather what the court’s trying to do. And that’s not to say that everyone has to go to court, but what the Family Law Act, the system is designed to do is to balance risk and relationship. So it’s not just is a child at risk, all children are at risk. It’s the child at an unacceptable level of risk. And balancing that with the benefit of the child having a relationship with both of their parents. So you have to do it. It is very difficult to balance it whilst you’re in the vortex, whilst it’s all happening around you. You are biased. Absolutely. But that’s why it’s really important to have your support network and to have some legal advice to help you make a call on that balance.

Heather McKinnon: And certainly, one of the things that we’re very aware of is that the children who were damaged in their parents’ separation, who then parent, will often throw the unresolved conflict from their childhood out onto these little ones. And so trying to gain insight into how your background impacted your decision making is the critical thing. Because in a lot of these cases of the weaponization of the child, you’ll see in expert reports that the adult’s childhood was less than optimum.

Mistake #5: Putting  your own interests ahead of your child’s

Benjamin Bryant: And I think every person in the litigation system is guilty of mistake number five, Heather. And that is putting their interests ahead of their child’s.

Heather McKinnon: Yeah. It floors you like as a parent, who just thought that your job was to make sure your kids had a better life than you did. When you see this happen, when people put their needs ahead of their kids, it floors you. I mean, the things that people will expose children to because they’re just oblivious to it is just mind blowing, isn’t it?

Benjamin Bryant: That’s right. And I guess for me, the key word there Heather, is oblivious. It can be quite dangerous when people don’t see it. And again, that’s why you need to have, all the support network and the legal advice and things like that around you so you can see it. And if you can’t see it, that’s very problematic. And that’s when courts get involved.

Heather McKinnon: We should probably give a few examples of common ones we see there. I would think that some of the things are just, entering into a new relationship and deciding within months you’re going to shift the kids’ school, shift the house, shift their town, in something that’s very untried and untested.

Benjamin Bryant: Yeah. It could even be as simple as something as Christmas Day. Heather. As we know, Christmas Day is not about children at all. Christmas Day is about parents. Children don’t care how many Christmases they have. They’d have two, three, it doesn’t matter. It doesn’t matter where they’re getting the presents from. But it’s very much about the parents. And the conflict around Christmas between the parents so outweighs the benefit of having a single Christmas.

Mistake #6: Making big decisions about your child without consulting the other parent

Benjamin Bryant: Mistake number six: Making big decisions about your child without consulting the other parent, like school, medical treatment or place of residence.

Heather McKinnon:  The number of cases we see where a parent won’t tell the other parent that a child’s going through a medical procedure is quite interesting. I always hear my mum and dad saying to me when they were alive that the most anxiety provoking time for a parent is when the child’s going under anaesthetic. But we will regularly see that kids will go through tonsillectomies, have their appendix out, all this stuff that’s scheduled. Oh, no, we didn’t tell the other parent. Yeah. Like it’s again, there’s just these two value systems or approaches.

Benjamin Bryant:  People separate for a reason. Obviously communication is difficult. And there could be a very, significant power imbalance in the relationship as well. And there may be a good reason why one parent’s not consulting with the other parent or making decisions in the absence of the other party, but to do so without even notice. That’s something different. We find that a lot. Not only are they making decisions, but they’re not even communicating the decisions to the other parent about what school, the enrolment. Sometimes the other parent’s name and details aren’t even on the enrolment forms like it boggles the mind. Yeah.

Heather McKinnon: And I think, though that you’ve made the most important point. When we get dysfunctional decision making where we have to intervene to give one parent the right to make decisions, you need some history to show that, joint decision making isn’t possible. You can’t just assume it’s not and start down that path. You need to test the parameters of the relationship. Can we, in a civil manner, move forward to make joint decisions? If you can’t, fair enough. But don’t do it unilaterally without even trying it.

Mistake #7: Telling your child they get to choose their living arrangements.

Benjamin Bryant: And on the line of dysfunctional decision making. What about mistake number seven: telling your child that they get to choose their own living arrangements?

Heather McKinnon: Yeah. Look, that’s the most common question, isn’t it? When we sit down with someone after they’ve separated is when do the kids get to say themselves. And they think it’s like this magic thing. And look, the number of people that tell kids in year three that, oh, by the time you’re in year six, you can say, and they constantly feed that to the child. Kids are kids for a reason. The definition of childhood is you’re not an adult. And so you really need to buy time, think, don’t just shoot off from the mouth whenever you need to have a thought bubble turn into real talk.  It’s really important that kids know that their mum and dad have got their back. And they don’t need the pressure of thinking they’re going to make adult decisions.

Benjamin Bryant: It could be appropriate in some circumstances, for children to be consulted for their views. But in a lot of circumstances, it’s not. The consultation needs to happen between the parents. And you find parents undermining the other, like, “you don’t want to do alternate weekends, do you? Won’t you miss Dad, or won’t you miss Mum or something like that?” And then three days later, the child says, I don’t want to do alternate weekends. So you have to have the bigger picture and it should be that those types of discussions should be had with the other parent or the legal advisers and not with the child.

Mistake #8: Lying to the court about your drug or alcohol use.

Benjamin Bryant: Mistake number eight: lying to the court about your drug or alcohol use. That’s a great one.

Heather McKinnon:  I always say to people, I think in the main drug and alcohol use is masking some other problems. And it’s really important that if you’re being interviewed, you be frank about, what’s happening in your life. There’s a long, way from the days where all we had was urine screening. And, nowadays, most drug and alcohol, abuse is detected through hair sampling. So your hair records a history over a period of 6 to 12 months. And that’s what the court uses. So if you have an issue with drug and alcohol use, please be up front about it. Talk to your GP, get some help at the time. Often the lead into separation is a period of time where people are not on their best behaviour and they may have, abused alcohol, for example, to a level that they never have before. But go and find out how to stop that if it has been an issue for you, and don’t think that the court will not be able to detect it, that’s the biggest mistake.

Benjamin Bryant: You can run, but you can’t hide. Also, I think it’s interesting that people should know as well is that even if someone refuses to participate in testing and the other side knows they’re lying, the court, based on all the other evidence, is able to draw an inference. So even if you don’t have necessarily the positive test, you may still have the effects of a positive test if you don’t do the testing. Okay, so I think people need to understand that as well. The court has a lot of power.

Heather McKinnon: And look, one of the things Ben, I often feel strange in this situation because you did psych as a major in your degree at Uni, so you did a lot more theoretical training. But one of the big things about an assessment of an adult is that a social scientist will go back to their adolescence, and you get people who will just say, oh, no, I never smoked a joint. I never did anything. In fact, what I say to people is adolescence is about experimentation. So if you deny it or you didn’t do any of that, that’s important for the social scientists to know. So don’t make up stories and don’t try and answer according to what you think they might want to hear. Just let them know what your life’s been like.

Benjamin Bryant: That’s right. And I think on the other end of the stick, as well Heather. Drug use in itself, although very legal, is not the end of it. Children are not getting ripped off parents because they’ve smoked a joint. Okay. It’s really about insight. The insight as to whether you understand the effect of your drug use is having on your parenting. That’s really the question. A lot of people don’t understand that.

Mistake #9: Coaching your child before family report interviews.

Benjamin Bryant: Second last mistake: coaching your child before family report interviews. I love this one.

Heather McKinnon: We’ve talked about the things we’ve seen before in different episodes, but people have a very naive belief that what an expert’s going to do is listen to what the words are that a child’s saying. But it’s much more complex. They’re looking at body language, the emotional warmth of the relationship. it’s really important to understand that children don’t lie. So they can be coached. They’ll run into the room, and we see it all the time in reports, and they’ll say, I hate my daddy. He’s a horrible man, and I don’t want to see him. Five minutes later, they bring the dad into the room. The kid runs to the father, sits on their lap, and starts chatting to them. So, it’s not a very sensible thing to think that you can get an Academy Award performance out of a seven-year-old.

Benjamin Bryant: It can be quite obvious in the interview process if the child has been coached before the interviews by a parent, that’s for sure. But also, I think it’s important to add here, just as a practical tip for parents who have children that are going through the family report interview stage or process is that you still have to prepare your child. They have to know that they’re going to a strange place, to a strange woman or a strange man, to talk about some unfamiliar, awkward things with a stranger. You still need to have that. So there’s a difference between preparing and coaching, and how much preparation your child may need compared to another child: obviously a subjective assessment. But when you get into the stage of coaching where you’re being very prescriptive of what your child should answer, that can be very obvious.

Heather McKinnon: And I think, it would be important to say here that in the show notes we will probably be able to give you a link. There’s been some great work done on parents preparing kids for interviews, and about if you were nervous about how to do it, we’ll have some, proper information up there about kids at different ages and what you need to say. It’s short, sharp, and sensible stuff, but it does help people because you get very worried about, how are they going to face this?

Mistake #10: Breaching court orders.

Benjamin Bryant: All right. Heather. Drumroll, please. Last one. Mistake number ten: breaching the court orders. So you’ve been through the court system. You spent 2 or 3 years of your life, you hate your ex, you’ve spent thousands of dollars on lawyers. What do the orders mean?

Heather McKinnon: The orders mean a lot. And they’re about to get a lot tougher on contraventions. So I always, make sure that people understand that orders of the Federal and Family Court, are, orders of the Commonwealth of Australia, and they’re not to be ignored or to be thought that they don’t have any sanctions. They’re there for a reason. In these highly dysfunctional cases, we need boundaries, and the boundaries are provided by those court orders. So it’s very important that you don’t interpret yourself about when and where it’s appropriate not to abide by them. There are consequences for people who constantly interpret them themselves and try and work out themselves what they can do and can’t do. Be careful. There’s a difference between having no court orders and then having court orders about what your responsibilities are. I suppose the murky area we get into, isn’t it, that you can have a reasonable excuse not to provide a child for a weekend contact? So in the last few years that might be Covid or, that the child’s medical practitioner thinks that it’s not good for them to be going into two households because of a virus or whatever it is. But it’s not up to you to interpret that. If there’s a court order, you really need to make sure that you have independent, assessment as to what’s a reasonable excuse.

Benjamin Bryant: That’s right. Heather and the stakes are high. the penalties for breaching orders can be cost orders, fines, community service orders, make up times, reversal of parenting orders. Right up to imprisonment. It’s pretty shocking.  So people need to understand, like you said, about a reasonable excuse, because sometimes there is a valid reason why you would breach an order. And the other one is I think what people need to understand is that if the orders aren’t fit for purpose, then the obligation might be on you to actually make an application to vary or discharge those orders. Don’t just let them slide because orders do not go stale. They just don’t disappear somewhere because you’re not complying with them, either parent complying with them. They are in place, until the child turns 18 or there’s a further order from the court. So as you said, get some independent advice to make sure you’re aware.

Heather McKinnon: And one of the big things that I’d say, people often sit in fear because they’ve gone through years of litigation, spent a fortune, and they don’t want to go anywhere near the court. But the developmental age, for example, of the child’s changed. That’s why those family relationships centres are there. Go back and re-engage with the other parent in counselling and mediation. If you need to tweak the orders because of changes in the kid’s lives, don’t put your head in the sand and think it’ll go away.

Benjamin Bryant: Thank you Heather I’m sure that all of our listeners will not be making any of those ten mistakes.

Benjamin Bryant: Thank you for listening and we hope this will help people avoid mistakes that could cost their families dearly. If you have any questions that you’d like us to answer on the program, please send them to Family Matters at bryantmckinnon.com.au or message us on Facebook and we’ll try to get the answers for you. We’ll put a link to any resources mentioned in today’s show and a full transcript in the show notes on our website. And don’t forget, please share this show with family and friends who may benefit. Hope to have your ears again next month.


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