I always find it surprising what upsets people the most about their partner. Seldom is it an affair or even violence that breaks a marriage or destroys a custody arrangement even if those things end up being the catalyst for the separation or modification law suit. Obviously, drugs, affairs, and violence stand out to me and to the court, but the internal power struggle of the marriage - slights, failure to show up, passive aggression, laziness, constant forgetfulness, endless excuses, an inability to communicate - are what seem to most deeply impact most former partners. It takes a subtle hand to make these issues pop in court because these same things are much easier to forgive from an outsider’s perspective. Bringing the kids late to school a handful of times may be emblematic of a constant issue within your marriage but to an outsider it seems like a minor problem that simply needs to be addressed.

It is no secret that our expectations of ourselves vary greatly from our expectations of others. Internally, we feel all of the different causes that led us to our current position. These things form the basis of whatever justification or rationalization we concoct to make sense of our actions. Others can’t see the deliberation and they cannot be privy to the quiet calculations our brain makes to pilot our decisions. So others just judge us on the action and the visible consequences. If you are the one that acts out, that is what they see. If you both act out, it’s just who y’all are. The actions cancel each other out even if the precipitating action is worse.

Moreover, others cannot feel the pressure that leads to the damn bursting. A couple of tardies may not seem like a big deal to others, but, damn, how many times do you have to tell him or her that the kids need to be at school on time. And you just know that he or she is doing it on purpose to drive you nuts. And then the damn bursts and the parent does something ill-advised because they just cannot take it anymore.

So here is the big secret: just live your life and do the best you can. Live up to the standard you expect from the other person independently from their behavior.

You want them to quit talking rudely to you on the phone? Well, don’t talk rudely back. It may not cure their behavior but it will look good to the court and they will look bad. Let the difference in attitudes shine through! Also, generally it will drive the rude parent up the wall. They want the reaction! They want the fight!

You want them to get the kids to school on time? Make sure you get them to school on time every day. The juxtaposition between the way you handle things and they way they handle things will be clear.

This does not mean get pushed around. In fact, just the opposite. Take away the other side’s power to control you and your actions. The spiral you found yourself in during the end of your marriage ends as soon as you decide you want it to end. You may still have to fight in court, but what the hell are they going to say about you. She or he gets the kids to school on time everyday? Their homework is always done? They don’t fight with me on the phone or in front of the kids?

More often than not, removing the other side’s ability to get a rise out of you will cause them to spiral (or make their current spiral more glaring).

And if it doesn’t? Well then you two get along and treat each other with respect. Better for you and your kids anyway.

A major part of this, however, is understanding the limits of what the court can and cannot do. This perspective is essential because it helps you discern which fights to fight and which fights to let go and helps you adjust to the court not doing what you want. What may appear to be an unfair ruling to you is often just par for the course and should shock no one.

For example, absent termination, your ex will get to see the children (even if he or she refuses, she or he will have some court ordered visitation). Absent really significant issues (history of significant violence, hard drug usage, mental illness) that visitation will end up unsupervised. As such, you must adjust to giving up some control and, when you have the leverage, you do not let your personal animosity flip the script. Showing out because the court did something you do not like is stupid and self-defeating.

And let’s be fair, if he or she was a lazy parent beforehand, it is deeply unlikely that will change. Don’t expect the other party to change. Worrying about such things will only drive you crazy. Clench your fists and shout “Serenity Now!” and move on. You broke up with them for a reason.

Accepting reality allows you to have control over your life. It frees you from the push and pull of your former relationship because you understand that you two are living separate lives outside of your kids. And then you can focus on providing your children what they need. Your ex will either adjust and things will be relatively peaceful or it will drive them up the wall and they will act out.

Either way you win.

And you will be able to testify fearlessly in court because you have nothing to run away from. Cross examine all they want, because you have the answers. And you can fight as hard as needed because you’ve stacked the deck in your favor.

Termination of parental rights presents one of the most challenging issues that come before our chancery courts. It is also a pre-requisite to most adoptions (absent a deceased parent, of course). Terminating a person’s parental rights means exactly what it sounds like. The court permanently removes all of a person’s rights to their child, including the right to be identified as the child’s parent on his or her birth certificate. It is commonly known as the Death Penalty for Parents. Once a person’s parental rights are terminated, they have as much right to the child as a random person working at a gas station down the street i.e. no rights. In the eyes of the law, that persons has become a stranger to the child.

Parents have a “fundamental liberty interest…in the care, custody and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. As termination of parental rights infringes on a person’s fundamental rights, there is a strong presumption in favor of preserving parental rights. “It is well settled that a parent's right to raise [his] children is of a fundamental nature, and is entitled to great protection, but that parental rights may be terminated when the welfare of the children is threatened. “State statutes providing for the termination of parental rights are subject to strict scrutiny and ‘[c]ourts may not add to the enumerated grounds.”

Considering the extreme and permanent nature of termination of parental rights, the courts and legislature have made clear that a party seeking the termination of a party’s parental rights must produce evidence so clear and convincing that it “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.” Even once the clear and convincing burden has been met, the court must then consider the best interest of the child. The best interest of the child is the polestar consideration of the court.

While all of this sounds complicated and weighty, the day-to-day reality of termination of parental rights cases often end up quite straightforward, obvious even. Due to the serious nature of termination of parental rights and the clear standards for terminating parental rights, termination lawsuits are only brought when things have gone seriously awry in the non-custodial parent’s home. Generally, our courts look to three separate causes justifying the termination of a person’s parental rights: abandonment, desertion, or moral unfitness.

The simplest is abandonment, which generally means the parent has not made contact with their child for one year (six months if the child is under three). If you have not called, tried to call, visited or made a real effort to visit your child in over a year (or six moths), the present parent or acting parent can sue to terminate your rights. Voluntary Relinquishment of Parental Rights will be addressed in a separate post, but it is the easiest method for terminating someone’s parental rights.

Desertion generally means that a parent refuses or has wholly failed to act as a parent, providing for the child, taking care of the child, or  raising the child. The law defines it as (i) Any conduct by the parent over an extended period of time that demonstrates a willful neglect or refusal to provide for the support and maintenance of the child; or (ii) That the parent has not demonstrated, within a reasonable period of time after the birth of the child, a full commitment to the responsibilities of parenthood. If you pop up on occasion demanding the child, preventing a finding of abandonment, but you do nothing for the child, instead using the child selfishly to get back at your ex or to make yourself feel like less of a piece of trash, then the person raising the child can sue for desertion. If the other parent has stopped you from acting as a parent, then you have a defense, but generally the proof is in the pudding.

Moral unfitness trends more towards chronic criminality and addiction issues - things that place the child in danger while in the parent’s care with a history indicating that these dangers are unlikely to resolve. Chronic alcoholics with multiple DUIs, meth heads who refuse to get clean or cannot stay clean, repeat domestic abusers, murderers, convicted thieves, drug dealers, prostitutes all typically fall within this category. Truthfully, drug addiction provides the most complicated situation in termination cases. Even an active pursuit of sobriety may not stop a termination if efforts to stay clean have failed in the past and the children have been impacted adversely by the parent’s drug addiction.

However, even where the custodial parent/grandparent/third party can prove one of the above grounds, he or she must also prove that termination befits the best interest of the child. The best interest of the child always lays at the heart of any custody case. It is the polestar consideration of the chancery court. Though typically if a party can prove one of the above grounds termination is self-evidently in the best interest of the child, there are times when even the sort of bad behavior described above cannot undo the parental bond and courts should not terminate a parent’s rights.

Generally, there are two major factors the courts consider when rejecting a petition for termination where the grounds can be proven: The parent has established a lengthy history of stability and the child desires some sort of relationship with the parent. The first is a pre-requisite for contact of any sort. If the parent remains a danger or woefully unstable then the risk of reunification to the long term well being of the child is just too much. The second recognizes the damage that is done by removing a parent from a child’s life. The child will inevitably feel the loss of the parent, particularly if they have a working memory of the parent - this issue is not as pressing in cases in which the child has little to no working memory of the absent parent. However, if the child remembers their parent before things went wrong, the court should pay closer attention to the negative consequences of removing a parent from the child’s life. In these situations, the court will often require an attempt at reunification counseling. While reunification may or may not work, it at least gives the child a chance to have questions answered and receive some sort of closer.

The point of all of this, of course, is to help the child grow up with as much stability, love and consistency as possible; to protect the child from being placed in dangerous and destructive situations, and to allow the child to have parents worthy of the title. In my mind and in the way I read the law, it is very child focused. Though the rights of the parents are at issue, the parent is an adult and the child is a child. The child comes first.