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To Err is Human

The recent, highly publicized, child custody case between Usher and his ex-wife brings to light several issues inherent in navigating post-divorce child custody matters.

Despite the word “final” in the “Final Judgment and Decree of Divorce,” the terms within the Decree are anything but final, particularly when child custody is involved.  This is because custody is based on what is in the best interest of the child.  This can, and often does, change as the needs of the child materially changes and/or the child’s environment materially changes.  If such a material change occurs, there may be grounds for a modification, or change of custody, from the original custodial award within the Decree.

Typically modification actions progress in the same manner as a typical civil case.  However, in certain extreme or emergency circumstances, the process can be expedited and an emergency hearing can be set for the matter.

In Usher’s case, his ex-wife claimed that the near drowning of their five-year-old son in Usher’s pool constituted such an emergency, requiring an immediate change of custody from Usher to her for the protection of the child.  The Judge found that there was not sufficient evidence to conclude that a change of custody would be in the child’s best interest, and found that the incident at the pool was not due to unfit parenting, but was simply a tragic accident.

Predicting what will, or will not, constitute grounds for an emergency modification of custody is very fact intensive and will vary greatly from situation to situation.  However, there are a few important things to keep in mind if you ever find yourself dealing with an emergency with your child:

If your child is in your custody at the time of an accident or emergency:

  1. Get your child to safety and contact whatever emergency/medical authorities are necessary.
  2. Contact the other parent immediately.  Do not try to hide, withhold, or cover-up whatever has happened.

If your child is not in your custody at the time of an accident or emergency:

  1.            Do what you can to help the situation.  This is not the time to place blame, get angry, or litigious…calling your attorney to file for a change of custody on your way to the hospital is likely not the best course of action (unless, of course, the danger to your child is immediate and ongoing and court intervention is absolutyely necessary).
  2.     Take a step back.  Assess the situation and think about whether this was an accident that could have happened to anyone, or if there is a legitimate reason to be concerned for your child’s well-being.  Dealing with hostile parents after a traumatic event is likely not going to benefit your child.  Only after you have done what you need to do as a parent, should you then contact your attorney to determine what course of action may be appropriate.

Either way, its important to remember, that (1) if you are not confident that the current custodial arrangement is in your child’s best interest, there is something you can do about it, (2) to err is human, and accidents happen even to the best of parents, and (3) make sure you are keeping your child’s best interest at heart and, then, act accordingly.

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