Sole Custody-Family Law’s Fighting Words
Written by: Tracy Augustin
We are all aware of our First Amendment right to freedom of speech, but did you know that there are exceptions or limitations to this freedom? Some of these exceptions include the following types of speech: obscenities, child pornography, threats and false statements of fact. Another exception is the “fighting words” doctrine which has been defined by SCOTUS (Supreme Court of the United States) as speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight, is directed to the person of the hearer” and is “likely to be seen as a ‘direct personal insult.’”
And, unfortunately, the fighting words doctrine is alive and well in Arizona family law cases with the simple utterance of two short words: SOLE and CUSTODY.
This is especially true in cases where both parents have been involved with the children since day one, and there are no readily apparent fitness issues. Nowadays, with the Maricopa County Superior Courts leaning towards joint custody (joint legal decision-making), to even ask for sole custody without a darn good reason is typically unheard of. That is unless, of course, you want to start your case with both guns blazing.
Usually, when one parent petitions for sole custody, the other parent will immediately take this phrase as a personal insult and proceed to lose their minds. Let’s just say the gloves come off at this point. FIGHTING WORDS. And, unless the push for sole custody dies down quickly, there will likely be some bloodshed throughout the journey.
Interestingly enough, this exact scenario is happening right now in a high profile celebrity divorce case. After 18 years of marriage, Antonio Banderas and Melanie Griffith have announced the end of their happily ever after. However, unlike other ugly celebrity divorces (think Charlie Sheen divorcing any one of his wives), this couple has made public announcements that their divorce is going to proceed amicably. According to a statement made to “Today,” the pair held that they would be ending their marriage in “a loving and friendly manner, honoring and respecting each other…”
THEN, the bombshell: although she is seeking joint legal custody, Griffith is seeking sole physical custody of their daughter, Stella.
Although I have no idea what Banderas’ position is on this matter, I can tell you that this request sounds like fighting words to me. To make matters even more ludicrous, their daughter is 17 years of age. I can all but guarantee that these two, no matter how friendly their divorce is, will not be done divvying up the honey pot by their daughter’s 18th birthday in September.
In the State of Arizona, custody orders only apply to minor children. That said, it seems as though Melanie’s push for sole physical custody is, in all practicality, a moot point anyway. And, if that’s the case, why would she even request this? Do you think things are as quiet on the divorce homefront as they might want us to believe? Or, do you think Ms. Griffith is trying to use fighting words?
Bear this in mind when it comes to petition the court for custody orders, whether it be a divorce proceeding our not.
Do you really feel that sole custody is in your child’s best interest, or are you simply posturing in hopes to gain some sort of strategic advantage? If the latter inquiry holds true, then my advice is to re-think the strategy. When I hear of parties asking for sole custody orders without any valid reasoning, I wait for all hell to break loose.
For in family law cases, those two simple words are FIGHTING WORDS.