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)
- If only he’d been nice to Fluffy.
- Sometimes in custody trials it’s the little things – literally – that help judges figure out what’s really going on.
- 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.
- 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:
- Breaking Bad, meet Breaking Bad Parents.
- 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.”
- 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.”
- 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.
- 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?
- 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,