How a Stuffed Animal Cost One Man His Custody Case

Picture this: Six days of trial for a custody case. At the beginning of the second day a whole bunch of issues and witnesses were narrowed significantly by 2 “Partial Minutes of Settlement”, and by a mutual agreement that said: both parents were equally able to meet the instrumental needs of their 3 ½ year old daughter, Grace, that they’re both good parents, that they both love their child equally, and that the child loves and needs each of them equally. As a result, the trial only needed to hear from 3 witnesses – each parent and the clinical investigator from the Office of the Children’s lawyer. That took another five days.

But boy, oh boy, did the parties still disagree on a whole lot of other things. A classic case of “I’m right. – No. I’m right.” With each parent feeling that they had to have sole custody and the other shouldn’t.

This case stands as a road map to what you should and shouldn’t do if you’re serious about asking for custody. And if you’re involved in, or might become involved in, such a case it’s really worth your time to read the decision. The case is Chomos v. Hamilton. It’s long, but really well written and easy to read.

You could tell this was going to be interesting by the very first words of the judgment: “If only he’d been nice to Fluffy”.

The most important 8 paragraphs of the decision

The decision is 175 paragraphs long, but the first 4 and last 4 sum up the key message:

Here are the first 4: (The italics are the judge’s)

  1. If only he’d been nice to Fluffy.
  1. Sometimes in custody trials it’s the little things – literally – that help judges figure out what’s really going on.
  1. Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.
  1. Sometimes the little things can speak volumes.

And here are the last 4: (Again the italics are the judge’s)

172. If only he’d been nice to Fluffy.

173. If only he’d been nice to the Applicant.

174. If only the Respondent had remembered the two magic words of custody cases.

175 “Be nice.”

At paragraph 74, Justice Pazaratz referred to an earlier decision of his in the case of Coe v. Tope for “some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.”

The Coe v. Tope decision had these as its first six opening paragraphs:

  1. Breaking Bad, meet Breaking Bad Parents.
  1. The former is an acclaimed fictional TV show whose title needed a bit of explaining: “BREAKING BAD: A southern U.S. expression for when a good person suddenly loses their moral compass and starts doing bad things.”
  1. The latter is a sad reality show playing out in family courts across the country. “BREAKING BAD PARENTS: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation; oblivious to the impact on their children.”
  1. SPOILER ALERT: The main characters in both of these tragedies end up pretty much the same: Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.
  1. To prolong the tortured metaphor only slightly, the “urgent” motion brought before me might be regarded as this family’s pilot episode. Will these parents sign up for the permanent cast of Breaking Bad Parents? Will they become regulars in our family court building, recognizable by face and disposition? Or will they come to their senses; salvage their lives, dignity (and finances); and give their children the truly priceless gifts of maturity and permission to love?
  1. Stay tuned.

You got to love a plain speaking judge.

There were many issues, but Fluffy symbolized them all

There were a lot of issues about which the parties had different views. Like the need of the father to change the clothes the child was wearing as soon as he got her into his car, even if that meant changing her when it was cold and she was crying, just so she wouldn’t wear what the mother sent her in. Or the father not giving the mother any advance notice that he was taking the child to Prince Edward Island by telling her on the day he was leaving. And then the next year, after agreeing to advance notice, only telling her as the plane was taxiing down the runway. Or playing games about timing when the child was being picked up by either parent. Or refusing to communicate with the mother during access exchanges. Or deliberately withholding $53,000 he was to pay her for 4 months. Or by agreeing to a final order that Grace be raised in the Catholic faith and that both parent be involved in organizing and attending Grace’s religious sacraments, and then having the child baptized without telling the mother. And there were more.

But Fluffy took the cake. As Mr. Justice Pazaratz put it:

67. But perhaps the most mind-boggling expression of the Respondent’s hostility and defiance toward the Applicant relates to Fluffy: a small, white, stuffed animal Grace became attached to when she was about seven months old.  The Applicant testified at length about this – and the Respondent didn’t deny any of her allegations.

68. The first incident occurred in March 2015:

a. Grace was experiencing separation anxiety when she went on visits with the Respondent.

b. So the Applicant said she “negotiated” with Grace that she could take Fluffy with her when she went on visits.

c. When the Respondent arrived at the front of her home to pick Grace up for a visit he immediately pulled Fluffy from Grace’s arm, pushed Fluffy into the Applicant’s face, and told her “I have my own stuffed animals.”

d. The Applicant testified Grace became hysterical, but the Respondent simply left with the child.  Fluffy stayed behind.

69.  The second incident occurred in April 2015:

a. The Applicant sent the Respondent an e-mail explaining that Grace was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.

b. However, when the Respondent attended at the front of her home to pick Grace up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.

c. Once again Grace became hysterical. The Respondent took her for the visit.  The Applicant retrieved Fluffy and went back in her house.

70. The Applicant testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue.  (Pause for a moment to let that sink in:  They went to court to negotiate a Fluffy resolution.)  The Respondent finally agreed that Fluffy could accompany Grace during visits.

71.  But it turned out to be a pyrrhic victory for common sense.

a. The Respondent developed a new routine:

b. At the beginning of each visit, when he came to pick up Grace, she was allowed to bring Fluffy with her.

c. But as soon as they got to his car, the Respondent tossed Fluffy into his trunk and closed it.  They then drove away.

d. To the Applicant’s knowledge, Fluffy remained in the trunk during the entire visit.

e. At the end of visits, the Respondent retrieved Fluffy from his trunk, and handed the doll back to Grace.

f. I suppose technically Fluffy got to come along for the ride.

72. But things got even worse for Fluffy.

a. The Applicant testified that after a while, whenever Fluffy came out of the Respondent’s trunk, the little stuffed animal smelled terrible.  Fluffy gave off a noxious odor, [sic] as if dipped in Vicks VapoRub or camphor oil.

b. The Applicant said on three occasions she had to wash Fluffy because Grace couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.

c. The Applicant e-mailed the Respondent asking why he was damaging the child’s prized possession.

d. The Respondent accused her of fabricating a complaint.

e. The Applicant said she finally gave up and stopped sending Fluffy.

Here’s the lesson:

Too often people involved in custody matters forget what it’s all about. It’s about the children. And too often they get so caught up in the righteousness of their own cause and the “rightness” of their decisions that they lose sight of how others see them.

Justice Pazaratz isn’t suggesting that people fake being “nice”. He’s saying out loud what lawyers doing this sort of work have known all along. A judge looks at each party and decides who seems to be the most reasonable and sensible.

As part of this they look at conduct – how a person acts, what a person says, what they write in texts and emails, and how they present themselves on Facebook. But most important of all is how they deal with the others in the litigation, especially the children. Are they willing to compromise for the sake of the child, even if they feel they may lose ‘face” with the other party? Are they able to hold their tongue and their keyboard and take a breath before saying, writing, and sending something stupid, just to get it off their chest?

In this case the key to everything else was Fluffy. This wasn’t about just Fluffy. But the way the father dealt with Fluffy, no matter how justified he thought he was being, helped the judge form an opinion that shaped his interpretation of everything else.

We all form opinions of others this way all the time. Why think a judge won’t?

So what’s the lesson? Be nice. For the sake of the children. That’s the best sort of strategic advice any of us can give a client. For some clients, it’s also the toughest piece of advice to follow. But if success is the goal, then this case shows the best way of succeeding.

A last comment – it’s usually not too late to change

One last comment to the parent who sees himself or herself acting the way the father did in this case. It might not be to late.

If you’ve been a controlling jerk, letting your feelings about your ex overshadow your feelings about your children, then take a breath. Be honest with yourself. Apologize for your past conduct. And change your ways. Show that once you realized how “wrong” you were, you took steps to fix it. You turned yourself around.

If you can say to the judge: Yes, that was me. But since the day I apologized, that hasn’t been me. Your ex would be justified in being skeptical. So be patient. Making the sort of change I’m suggesting won’t give you credits for goodness right away. You need to acknowledge out loud that you understand how and why you were wrong, that you will change it, and then change it. Being able to show that you’re no longer the person you were and that your children shouldn’t now be denied contact with you because of who you were then but haven’t been since your apology will go a long way to impressing a judge. So long as you’re being genuine and honest.

So, so some it may be too late to make a change. But for others, if the father here is you, you may still have time to change things. Good luck.

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