When parents become embroiled in custody litigation, experience tells us children are often the innocent victims of the conflict which parents present to the Court. According to recent reports, ongoing custody litigation between Bethenny Frankel and her former husband Jason Hoppy is negatively impacting Ms. Frankel’s relationship with the parties’ 8-year-old daughter. The trades report the parties separated in 2012 after 2 years of marriage and settled their case in 2016. However, earlier this month, Ms. Frankel returned to Court requesting full custody, alleging that Mr. Hoppy is using FaceTime calls as a tool to abuse Ms. Frankel. The purpose of this article is to assist the reader in exploring options other than litigation to resolve custodial disputes.
Courts are often presented with issues that involve a child’s general welfare, such as the choice of medical providers or the school a child should attend. These disputes are commonly known as legal custodial decisions. In addition, decisions must be made about the amount of time a child spends with each parent i.e., physical custody. In the Frankel/Hoppy case it appears the parents are disputing which parent should make legal decisions for the child in addition to which parent should have primary physical custody of the child.
Of apparent concern in the Frankel-Hoppy family is the impact the custodial proceedings are having on the parties’ daughter. We often see allegations by one parent that a child is being “alienated,” meaning one parent is attempting to influence the child to have negative feelings about the other parent. Alienation is often motivated by a desire of a parent to achieve a “win” in the custody litigation or seek revenge. The “purpose” is served by efforts to negatively influence a child to harbor unkind feelings toward the parent who obtains a favorable ruling from the Court on issues impacting legal or physical custody.
This writer believes parents should address their motivation in seeking custody orders before they begin custody litigation and discuss the impact litigation will have on the health and welfare of their child. Are orders sought out of necessity or because of anger or a need to inflict pain on the other parent? To achieve answers to these questions, it is recommended that a consultation be scheduled with a mental health professional familiar with high conflict divorce. Counsel for a party who expresses concern about custody related issues may want to reach out to opposing counsel and suggest the parties attempt through a common therapist to discuss concerns and solutions to issues that are better resolved by agreement than through litigation.
Of course, one cannot adopt a “one size fits all” approach in resolving custodial issues. Where there are issues of safety or physical or mental abuse that impact a child, it is essential for a parent to seek orders from the Court. The critical question for a parent to consider is the long-range impact litigation will have on a child and is there a better alternative to a court-imposed decision to achieve a child centered resolution.
In the case of the Frankel and Hoppy family it appears mother is reporting a serious impact the litigation is having on mother’s relationship with the child, leading this writer question whether the family attempted to talk through their issues rather than involve the Court.
Robert Eisfelder, founding partner of boutique law firm Robert W. Eisfelder PC, has been practicing family law in Los Angeles for over 40 years. He regularly handles complex family disputes involving significant estates, as well as matters involving significant support, custody or division of property.