Divorce Law and Child Custody Leave Sleeping Tigers Alone

By Mark Allan Johnson -

The following is provided for general informational purposes only and should not be relied upon in any manner before consulting with a licensed attorney in your state.

Divorce Law – Grab a Tiger by the Tail

Divorce law, particularly when children are involved, can be extremely acrimonious, and it affects me the most on a personal level due in part the lawyer becomes a therapist, too. I generally will not accept a case if the client’s goal is to take the other party to task on every infraction. For example, “S/he was a minute late dropping off the kids, I want you to file a contempt of court motion.” I made the mistake once of representing a good friend with his case, with a single child support matter taking two years to resolve and the parties were constantly trying to one-up the other.

I recently gave pro bono assistance to a father who I saw in family court representing himself. I met with him several times and gave advice on strategy and likely outcomes and the best way to approach his case. The best information I can convey sometimes is that the legal system is not about right or wrong but whether conduct is lawful and if a court can provide any relief to an aggrieved party. Other mantras I share are: you may never be vindicated, particularly in family court; bad things happen to good people, life isn’t always fair, mean people win sometimes; take the high road, live well and put this behind you as soon as possible.

The father I am helping finally heard and most importantly accepted what I had to say including, put down your sword and extend an olive branch of peace. He listened to my advice and let me know he has obtained what he wanted on an informal basis while his next court date is pending. He understands what he must accept and cannot control, as distasteful as it can be. He recently called to tell me he will continue his case on his own because he fears any change in the status quo will cause a contentious reaction and since he is making forward progress he does not want to risk going backwards.

I am so impressed by this gentleman who has already raised two children who are adults now and he is beside himself that he does not have the unfettered access to his two-year-old daughter that he had with his grown kids. He is of modest means and education but I am touched and moved by him each time we meet.


A court/judge has no interest in one’s personal affairs, of a civil nature, until people cannot resolve a dispute on their own. Divorcing parents are free to make whatever child custody arrangements they choose, for the most part, and the court only gets involved if the parents can’t agree.

Before I continue, its important to stress that parents can, and do, say any defamatory and untrue remark about the other with near impunity. Occasionally a judge may penalize a parent for making demonstrably untrue accusations, but this is the exception and not the rule and I have never heard of a judge referring a case to the district attorney for perjury charges despite most legal papers requiring a statement be executed under penalty of perjury. Individuals enjoy “judicial immunity” for all statements made in court papers and precludes a defamation lawsuit unless the untrue statements are published outside the ambit of the court papers. Judicial immunity extends to police investigations and reports, too.

The idea behind judicial immunity is that people must feel free to use and participate in the judicial process without fear of being sued for what they say. Though in extreme cases it might be possible to institute an action for malicious prosecution or abuse of process. A criminal case for false police report might be pursued, too, but good luck with that. Police agencies don’t like to be put in the middle and often suspect ulterior motives.

So now to the point of the section heading. After the fact, a parent came to me after filing a report of domestic violence/battery with the police and pursing a restraining order. The police investigated and the other parent denied and accused the reporting parent of abuse. The criminal case became a wash and the case rejected against both parents. The parent pursued the restraining order and cross allegations of abuse were made. The court issued mutual restraining orders and now they meet in a police lobby to accomplish the child custody exchange. They are refrained from contacting each other and once daily calls to the child when in the other parents care has ceased.

The moral of the story, and it is not always possible, do what you can to make peace. Think before you act, because steps to gain leverage even when legitimate can backfire and have severe consequences.

I recognize that attorney fees can mount very quickly particularly when he fees run from 200-350 an hour, and beyond the reach of many, however, family law is not a place for the faint of heart, uninformed, naive or idealistic. Most definitely, what you don’t know can and will hurt you.

Authored by California attorney Mark Johnson with offices in Palmdale, Oxnard, Rancho Cucamonga and Temecula, California. http://www.crimelaw.org

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