Michael P. remembers the day he went over to his estranged wife's apartment to pick up his son Tommy at the end of a weekend visit. Tommy's mother was passed out in bed, even at midday. The boy sat alone watching cartoons, wearing the same clothes Michael had put him in a few days before. The coffee table was strewn with drug paraphernalia, remnants of the previous night's partying.
But when Michael talked with an attorney about fighting for sole legal and physical custody, the response was hardly reassuring.
"'I won't tell you it can't be done,'" Michael recalls the lawyer telling him. "'But the odds are against you and it'll be very expensive.'"
Michael surrendered; a joint custody arrangement was eventually worked out. But nine months after thedivorce, his ex-wife was caught stealing drugs from the hospital where she worked.
"If I had fought for custody, we would have been in court about the time she was arrested," he thinks, looking back with regret. "I might have won."
It is with a measure of sympathy that this father now looks at the highly publicized case of Daniel Greene, the Massachusetts father recently arrested for allegedly kidnapping his two-year-old son. Greene has said,through an attorney, that he believed his son was in "imminent danger" at the hands of his former wife,Suzanne Hirsch, of Oneonta, New York.
"I can certainly sympathize with the father's predicament," says Michael. "You think, 'Maybe I can getcustody, but it could take years and cost thousands of dollars and meanwhile the kid is still living inthe same situation I'm trying to get him out of.'"Should Kids Be Able to Choose?
While Greene and Hirsch trade abuse allegations, their son, Patrick, now 16, has indicated a preference to remain with his father and stepmother. According to experts familiar with custody decisions, a judge is likely to take the boy'sviews very seriously.
"There's a presumption that around age 13 or 14, kids get to decide," says Marcia Boumil, director of the ComprehensiveFamily Evaluation Center at Floating Hospital for Children. "At that age, a child is old enough to pack her bags and say 'I'm outta here' and there isn't a lot you can do about it."
On the other hand, children of any age are rarely asked what they want directly. Boumil, and others who advise judges, ask children a series of questions or engage in activities designed to get at their real feelings. Younger children may be asked to draw pictures of where they live.
"I want to see if a preschooler draws Mommy's house or Daddy's house," Boumil says. "And when older children saythey know exactly what they want to do, I need to look at the reasons. Is it because Daddy never makes him do hishomework or Mom is always working?"No Say, No Guilt
Experts say it is crucial for a child in a bitterly contested custody case to understand that the decision of where they will live is, in fact, not theirs.
"Particularly for younger children, it is really a great relief to know it is the judge's decision," observes Sharon Gordetsky, a psychologist in private practice and a member of the council of the American Psychological Association. Boumil agrees, while noting that is not uncommon for children to suffer anxiety knowing that their fate is in someone else's hands. Still,the alternative is even worse for them, she believes.
"Kids can't think they have control because they have to live with the guilt of the decision," she says. "Then they takethe right to pound on themselves when they see Mom alone."
No matter what happens in the Greene case, there is widespread agreement that Patrick's preferences should be respected. Still, there is little doubt that the teen has suffered irreparable damage, whether or not his father acted out of love and concern in whisking him away from his mother 14 years ago.
"In fact, it turns out not to be in the child's best interest, what the father did," observes Gordetsky, "because thechild has been living a lie all these years, asking 'Who am I really?'"