Are we headed to an encyclopedia of child custody restraints (and is that something we actually want)?

This is another blog inspired by last Friday’s guardian ad litem training.  As I enter my fourth decade of practice and acknowledge that my legal career is half over (likely two-thirds over), I find myself increasingly agitated by certain trends I perceive in family law.  I want to resist becoming the old man shaking his fists at the youngsters and reminiscing about the “old days,” but there are trends in family law that I think need to be actively resisted.  The push for ever increasing restraining orders is one I find well meaning but counterproductive for parents, children, or family law attorneys.  And it’s only getting worse.

One of the lecturers included a discussion of recent restraints she had litigated.  Her list contained many of the newer items, including many that that parents routinely agree to and then routinely violate.[1]  I’ve written numerous blogs about how these well-meaning restraints are problematic.  However, her list also had restraints I’d never encountered regarding gun storage, life jackets on boats, use of appropriate car/booster seats, and limitations on screen time and video games.

I am not against safe gun storage, children having life jackets on boats, using appropriate car and booster seats, and making children spent time IRL.  Because litigants in family court are no longer parenting children within intact families, restraints that prevent one parent from undermining the other parent’s relationship with the children may be necessary.  However, the bulk of these restraints are merely designed to enforce good parenting.  Intact families parent their children without court orders requiring them to not be intoxicated around the children or requiring them to use approved life jackets if taking their children boating.  No one sees that absence as a problem in search of a remedy.

What is gained by imposing these restraints on parents who are not in intact parenting relationships?  These restraints enable parents who don’t like the other to control the other’s parenting decisions.  Perhaps the other parent is making bad decisions, but shouldn’t the remedy then be to limit or eliminate that parent’s time with the children?  By choosing instead to impose restraints we limit parental autonomy, grant disputatious parents a greater ability to fight, embroil children in parenting disputes[2], and devote judicial and attorney resources to minor issues over parenting decisions.

Further, because some judges consider violations of child-related restraints to be non-purgable—one cannot undo what one has done—they impose criminal contempt sanctions for violations.  How many attorneys have informed their clients that they might go to jail if they agree to the current litany of restraints and then, in a moment of frustration, curse around—not even at—their children?

Personally, I preferred custody litigation when the focus was on who was getting what time with the children and who was making major decisions for the children.  I’ve never seen a need or desire to micromanage parents and I find it exhausting to represent parents who are intent on micromanaging the other parent.  I acknowledge I’m getting old.  Perhaps I lack the patience to argue over silly things. But I do not look forward to a culture in which litigating life jacket requirements or car safety seats becomes routine.  My colleagues shouldn’t either.

[1] Every family law attorney I know acknowledges swearing around their children.  Yet most of these attorneys routinely have their clients agree to restraints against “using profanity in the presence of the children.”

[2] An increasingly common restraint prevents children sixteen years old and younger from attending or watching R-rated movies and prevents seventeen year olds from doing so unless both parents agree.  How old does one think such children are when they first learn they cannot see movies their peer see?  What explanation can you give such child other than “because your parents agreed to it” or “because a court ordered it”?  How satisfied/happy does one think this child will be upon hearing that explanation?