Can My Ex-Wife Prevent Me From Letting Our 9-year-old Walk to School?

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I wish I knew how to answer this dad, but I don’t, so I’m crowd-sourcing. If you’re a lawyer, or have been through a custody battle with Free-Range implications (here kashdtitey
the subject of a Law Review article
), please weigh in.

The one resource I did direct the dad to is California Safe Routes to Schools. This organization believes in kids walking to school and tries to make sure all kids can. Here’s the national site, in case you want to contact them yourselves. And I’ll be speaking at the Oregon Safe Routes to Schools conference in Eugene this Monday night, June 20 — free! — in case you’re anywhere near there.  Anyway,  here’s the letter I just got:

My ex-wife is trying to get a court order that bars me from letting my nine-year old boy walk to school next year (he’ll be in the fourth grade). We live only 750 feet from the school and there is only one stop sign. She is a classic helicopter parent.
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I am in the state of California. Can she legally do this?
I sure hope not. Here’s my blog’s list of state laws regarding kids and supervision. Looks like there is no California edict against 9-year-olds walking (thank goodness!). But I just don’t know how this plays out in custody disputes. – L.

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Walking to school at age 9 should not be considered a crazy-dangerous activity.

Walking to school at age 9 should not be considered a crazy-dangerous activity.

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52 Responses to Can My Ex-Wife Prevent Me From Letting Our 9-year-old Walk to School?

  1. Steve June 15, 2016 at 11:06 am #

    “The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation.”

    — Adolf Hitler, ‘Mein Kampf’

    So yeah they can do pretty much anything when the excuse is ‘protecting children’.

  2. Jennifer June 15, 2016 at 11:11 am #

    While I certainly hope a child can walk 750 feet to school, I’m going to weigh in as a therapist who works with young children suffering the ravages of parents’ nonstop battling after a divorce. The reality here is that the actual “danger” this child is in has nothing to do with whether he walks to school or not, and everything to do with the incredibly negative impact parental conflict has on kids. Instead of fighting this battle out in court, which will most assuredly be followed by another, and another, and another, focus energy on finding ways to effectively coparent after divorce – mediation, couseling, whatever it takes. I’m not saying it’s easy, I’m saying the lifelong effects of not solving this issue that will underlie everything else are far more negative than any single parenting decision.

  3. K Virtue June 15, 2016 at 11:13 am #

    Where does this issue fall in the whole scope of the custody hearing? Are there other more critical issues you need to hold the line on? I think you need to take the whole set of issues into consideration and fight the battle you NEED to win. This could be an easy concession of there are other more critical issues.

    Second answer: Build into the custody agreement that you both need to take Co parenting classes TOGETHER (both because it is a good idea any way, and because It may be good for her in specific.
    Third answer: Ignore it if you can. If it is not specifically addressed in the custody agreement, it doesn’t exist (and you can do what you wish)

  4. James Pollock June 15, 2016 at 11:39 am #

    Jennifer is absolutely right.

    My ex and I didn’t fight over any aspect of the divorce except custody. Unfortunately, the custody issue remained active for YEARS because my ex-wife was convinced that THIS time, her demand for custody would be rewarded.

    As to the specific issue presented:

    The judge who oversees the case CAN order that the child not be allowed to walk to school. So, it’s best to prepare a strong argument for why the child should be. There’s no secret “legal” way to make this argument, beyond stressing at all times that allowing the child to walk to school is in the child’s best interest. The best argument AGAINST allowing the child to walk to school is that it is in some way dangerous… so note everything you’ve done to ensure that it is not. Walking the proposed to route with the child to familiarize him with the route, identifying anything potentially hazardous… is there a dog that might threaten the child if it were loose? Is there a street to cross? Is there a sidewalk or otherwise safe place to walk? Be thorough… your ex-wife will be.

  5. Donna June 15, 2016 at 12:12 pm #

    The issue in this case it not the legality of walking to school, although the Judge will definitely prevent you from allowing your child to walk to school if it is illegal. It is not even a determination as to whether walking to school is dangerous or safe, although, again, a Judge who believes it to be unsafe will not allow it to happen. The issue is whether one legal parent has a right to allow a child to do something, ANYTHING, against express wishes of the other legal parent, no matter how legal or reasonable that action is.

    Take it out of the context of walking to school. If your son wants to get his ears pierced and you are adamantly opposed to this happening, would you think it okay for your wife to just blow off your opinion and take him to get his ears pierced, saying “it’s not illegal so I’m doing regardless of what you think?” Probably not. In fact, you’d probably be pissed off.

    You are not a single parent. Your child has another parent with equal say in his upbringing. Were you still together, the boy would not get to walk to school unless you both agreed. You would not just ignore your wife and send the boy to school on foot anyway while her back was turned (or maybe you would and that is why you are divorced). The judge may enforce that stance, not because there is anything wrong with walking to school at all, but because it is improper for one parent to unilaterally make that decision against the wishes of the other parent.

  6. BL June 15, 2016 at 12:35 pm #

    @Donna
    ” it is improper for one parent to unilaterally make that decision against the wishes of the other parent.”

    But any method of getting to school is unilateral if both parents don’t agree. Not just walking. There seems to be a tacit assumption that not-walking is the default.

  7. James Pollock June 15, 2016 at 12:56 pm #

    The issue is whether or not walking to school is in the best interests of the child. We tend to assume, generally, that it is, some folks seem to assume, generally, that it is not, most people can think of exceptions to the general rule they support. For example, although I think walking to school is generally fine, there are some cases where it wouldn’t be. Say the school is ten miles away from the home, or that there is a limited-access freeway between the school and the child’s home.

    In cases where sole custody has been awarded, a court has already determined that one of the child’s parents will be the primary decision-maker for the child… that parent will decide what school the child attends, where the child lives, what religious tradition the child will be raised in.

    In cases where joint custody has been assigned, the parents have demonstrated a willingness and a capability to continue to work together in parenting their child(ren). This is almost always better for the child(ren) and is supported, formally and informally, by the court system, but it doesn’t always work.

    The question was, “can she legally do this?” and the answer to that question is yes, it is possible in general.

    As to whether or not it can happen in your case, specifically, or is likely to happen in your case, requires the advice of an attorney who is licensed in your jurisdiction, is familiar with local child custody law, and is familiar with all the details of your specific case. (I think Donna meant to say this, but forgot).

    There may be other, larger, questions. Why does your ex-wife feel that legal action is appropriate? Are there alternative avenues to address her concerns? (Note that “address her concerns” does not mean “accede to her wishes”.)

  8. Donna June 15, 2016 at 1:37 pm #

    “The issue is whether or not walking to school is in the best interests of the child.”

    However, when you start asking courts to decide minor parenting decisions where there is no real best interest of the child debate such as mode of getting to school, the Judge is often going to side with the parent who doesn’t want the something done. I’ve seen it happen numerous times. Most recently, a friend of mine is a recreational pilot from a family of recreational pilots. That is what the whole family does for fun. He wanted to take his child flying. Mom of child was opposed. The judge said no. Not because he believed that children should not fly in private planes or that friend was an unsafe pilot, but solely because mom didn’t agree to the activity and it was something that he believed both parents should agree upon for it to happen. And this was in California.

    The fact is you are asking the court to make a decision for which there is no real best interest concern either way, unless one mode of getting to school is measurably less safe than the other. It is a minor, inconsequential parenting decision. I know everyone here likes to get rabid about free ranging and believes that children who are not allowed to walk 750 feet to school are going to harmed for life and are destined to forever live in their parents basements, but the reality is that how a child gets to and from school is just not all that important in the grand scheme of their life.

  9. Warren June 15, 2016 at 1:39 pm #

    Everyone is assuming they have joint custody.

    Maybe she is seeking a court order is because she doesn’t have joint custody.

  10. JKP June 15, 2016 at 1:55 pm #

    In order for the child NOT to walk or bike the 750 feet to school, the parent would have to drive them or walk them there themselves (it’s too close for any bus system to agree to bus the child to school). If the court agrees to allow the mom to have her way (against the objections of the other legal parent), then the father is forced to shuttle the child back and forth from school. Maybe doing so will make him late for work every morning and is not a reasonable burden to place on him.

    Sometimes in order to prevent this back and forth micromanaging of each parent’s day to day routine with the kids, there can be a “parallel parenting” custody agreement, where the kids have different rules at each house and only the big decisions need to be made jointly. When parents can’t agree on anything, this can be better for the kids than dealing with their parents constantly bickering over each decision.

  11. Peter June 15, 2016 at 1:57 pm #

    Say the school is ten miles away from the home […]

    BAH! I used to walk 10 miles to school! In the snow! Up hill! BOTH WAYS!

    (No offense intended, I just couldn’t resist.)

  12. James Pollock June 15, 2016 at 2:09 pm #

    Peter: Bah. At least you had shoes. We used to have to program our computers with 0’s and 1’s. And sometimes we were out of 1’s.

  13. Donna June 15, 2016 at 2:11 pm #

    “Everyone is assuming they have joint custody.”

    I didn’t assume that they have joint physical custody. I have no idea which parent has physical custody of the child.

    However, a granting of custody does not terminate the parental rights of the non-custodial parent. In fact, the preference is to keep both parents in equal standing as parents unless there is a reason that one should not have decision-making ability. Custody is often bifurcated between legal and physical custody, with both parents being granted legal custody even if only one parent has physical custody. This seems an odd thing to worry about if both parents haven’t retained some decision-making ability, but maybe I just don’t spend enough time in the world of messy divorces.

  14. Anna June 15, 2016 at 2:19 pm #

    I like Donna’s answer: a good reminder that, divorced or not, the parents still need to work out parenting issues together. It’s easy to get up in arms about the insanity of various family court rulings (I certainly hear about plenty that seem crazy), but the simple fact of the matter is, the law is not the ideal way to make mundane family decisions, and if you ask the law to settle such things for you, you shouldn’t be surprised that the results are less than ideal.

  15. Warren June 15, 2016 at 2:50 pm #

    Personally I say let him walk. He’ll successfully do it dozens of times before she gets you in court. He’ll come to like it.

    Then if she gets her way be honest with your son when he wants to know why he can’t walk anymore. Your mom won’t let you. Take it up with her.

  16. SteveD June 15, 2016 at 2:54 pm #

    Does divorce help adults become happier?

    http://www.divorce.usu.edu/files/uploads/lesson4.pdf

  17. EtobicokeMom June 15, 2016 at 3:07 pm #

    This person needs good legal advice and good parenting advice. Rules regarding custody vary from state to state (province to province). We don’t know if this parent has joint custody, sole custody, if the other parent has sole custody or there is some other arrangement in place. Without knowing that, no-one with any legal expertise is going to weigh in (self included). Also, whether or not allowing a child to walk to school alone is, in fact, a custodial decision as opposed to a day-to-day decision is going to depend at least to some degree on what the local and state legislation has to say on the topic. For instance, a custodial parent very much CAN insist that a non-custodial parent use legally mandated car seats, and can deny access if the access parent does not have them. So, if walking, or not, is the subject of legislation, it could be a custodial decision.

    Then there is also the bigger picture – the child’s overall well-being and the fact that his parents are about to go to court about whether he can walk to school or not. There has to be a better way to resolve this. He should investigate the availability of parenting co-ordinators and/or family mediators in his area.

    But most of all…. never, ever, ever, rely on the internet (even such well-meaning areas as this) for legal advice. Go see a local lawyer.

  18. Brad June 15, 2016 at 3:19 pm #

    I’m in a joint-physical, joint-legal custody situation with my child. The judgement and decree we filed with the court says “Each parent shall honor the other’s parenting style, privacy, and authority. Each parent will make ordinary day-to-day decisions about the child while the child is with him or her. Neither parent shall interfere in the parenting style of the other, nor shall either parent make plans or arrangements that would impinge upon the other parent’s authority or time with the child without the express agreement of the other.”

    This language has helped to head off a number of issues with my ex, by explicitly carving out our rights to parent as we see fit, in an effort to keep these kinds of relatively petty disputes out of court. (Not trying to minimize the questioner’s situation; but it pales in comparison to what happens in family court every day.)

  19. James Pollock June 15, 2016 at 3:23 pm #

    ” Custody is often bifurcated between legal and physical custody, with both parents being granted legal custody even if only one parent has physical custody.”

    In my state, a court cannot order joint legal custody unless both parents agree to it. If the court must rule, it must award sole legal custody to one parent or the other (or neither, I suppose, although I doubt this comes up much.) It’s in ORS 107.169(3).

  20. Donna June 15, 2016 at 4:22 pm #

    “Then if she gets her way be honest with your son when he wants to know why he can’t walk anymore. Your mom won’t let you. Take it up with her.”

    Yes, because putting your 9 year old in the middle of an argument between his parents is wonderful parenting that makes for successful, well-adjusted adults.

  21. Harrow June 15, 2016 at 4:37 pm #

    I don’t see any reason to bar the mother from dropping by to drive the kid to and from school every day if that’s what she really wants to do.

  22. Donna June 15, 2016 at 4:44 pm #

    “In my state, a court cannot order joint legal custody unless both parents agree to it.”

    But your state is not California and we don’t know that they didn’t agree when they got divorced. Or that there is joint legal custody. It just seems like an odd thing to worry about if you have full decision-making ability and your ex has none. Or if your ex has all the decision-making ability and you have none.

    But the whole thing seems odd to me now that I read it again. At first, I had the impression that this was all speculative – dad wants to let kid walk, mom doesn’t, mom is threatening to go to court, dad is wondering what might happen if she really did; typical divorced parent crap that usually works itself out without anyone going to court after tempers die down. And maybe that is all that it is. However, on reading it again, Dad states that the mother is “trying to get a court order,” which implies that she has already filed something with the court.

    Dude, get an attorney. It is one thing to ask random people on the internet for their thoughts on an argument you are having with your ex-spouse, but if you have an actual case in court, you need an actual attorney.

  23. James Pollock June 15, 2016 at 5:06 pm #

    Donna, I responded to your statement:
    ” Custody is often bifurcated between legal and physical custody, with both parents being granted legal custody even if only one parent has physical custody.”

    Your answer to my response was
    “But your state is not California and we don’t know that they didn’t agree when they got divorced.”

    Can you point me to the references to California or parental agreement in the original statement? I don’t see them.

    On the other hand…
    “Dude, get an attorney. It is one thing to ask random people on the internet for their thoughts on an argument you are having with your ex-spouse, but if you have an actual case in court, you need an actual attorney.”

    Called it! Specifically, I said:
    “As to whether or not it can happen in your case, specifically, or is likely to happen in your case, requires the advice of an attorney who is licensed in your jurisdiction, is familiar with local child custody law, and is familiar with all the details of your specific case. (I think Donna meant to say this, but forgot).”

  24. JKP June 15, 2016 at 5:13 pm #

    James – the letter Lenore posted specifically says that he is in California, and Lenore referred him to California resources. That’s why Donna is saying your statutes form Oregon don’t apply to California. Read the letter again.

  25. James Pollock June 15, 2016 at 6:17 pm #

    “the letter Lenore posted specifically says that he is in California”

    Duh?

    “That’s why Donna is saying your statutes form Oregon don’t apply to California. Read the letter again.”

    Read the comment you’re responding to, again, and get back to me when you understand what’s being discussed.

  26. Theresa June 15, 2016 at 6:33 pm #

    Donna I guess when the kid ask why he can’t walk with his friends the school Dad should lie and not tell how because of Mom he can’t go. What would you have Dad say?

  27. James Pollock June 15, 2016 at 6:39 pm #

    “I guess when the kid ask why he can’t walk with his friends the school Dad should lie and not tell how because of Mom he can’t go. What would you have Dad say?”

    Son, you’re too old for imaginary friends.

  28. Donna June 15, 2016 at 6:45 pm #

    James, Can you point me to the relevance of your statement as I don’t see it?

    If you just thought I needed to know about divorce law in Oregon … thanks? I don’t have any intention of ever practicing there, but that tidbit of knowledge may come in handy one day if I have an Oregon friend seeking a divorce. Otherwise, it seemed like a completely and totally pointless statement that in no way further illuminated anything in this discussion.

  29. KronWeld June 15, 2016 at 7:03 pm #

    ” Donna June 15, 2016 at 6:45 pm #

    James, Can you point me to the relevance of your statement as I don’t see it?”

    Well I’m not James, but you did say ”Custody is often bifurcated between legal and physical custody, with both parents being granted legal custody even if only one parent has physical custody.”

    You didn’t say in California. You said often. James is saying not in his state. You ask James for the relevance of his statement. It has the same relevance as your statement.

    Neither statement has any relevance to this situation. As previously stated by others, the man needs a lawyer. One who knows the relevant laws.

  30. Donna June 15, 2016 at 7:04 pm #

    “Donna I guess when the kid ask why he can’t walk with his friends the school Dad should lie and not tell how because of Mom he can’t go. What would you have Dad say?”

    Because we said so and we’re the parents? Kids do not belong in the middle of arguments between their parents. They should not have to pick sides over any issue. Nothing derogatory should be said about the other parent. (Unless there is a genuine issue like addiction or abuse that needs to be discussed and even then should only be discussed in the most positive way possible). Sometimes that means that you have to actually be the grown up, bite your tongue and not say what you want to say until you are having beer with your buddies.

  31. Donna June 15, 2016 at 7:09 pm #

    “James is saying not in his state.”

    No, James is saying not in his state if the parents disagree. I said nothing whatsoever about the mechanism for granting bifurcated custody. I simply stated that it is often granted, not that it is often granted against the wishes of one or more of the parents.

  32. James Pollock June 15, 2016 at 7:13 pm #

    “James, Can you point me to the relevance of your statement as I don’t see it?”

    You made a general claim about how custody is divided. (this part is especially for JKP’s benefit: without reference to whether or not it applies in California.)
    I pointed out a different approach to the general you described (specifically NOT claiming that it applies in California)

    It was at that point that you suddenly were interested only in rules that apply in California. This is the rhetorical flourish known as “moving the goalposts”. Were you aware you were doing this while you were doing it?

    “If you just thought I needed to know about divorce law in Oregon”
    I guess I don’t, which is why I never said “Oregon”, but I figure you have about as much reason to know custody (not divorce) law in Oregon as you have to know custody law in California, which (coincidentally) is about as much as I need to know about custody law in California. Which is why I suggested fairly early on to consult with someone knowledgeable (and licensed!) to discuss the applicability of custody law in California.

    “Otherwise, it seemed like a completely and totally pointless statement”
    And yet, you took the time out of your busy schedule to quote and address it (poorly), by complaining about the three assumptions I didn’t make. I mean, if you’re going to complain that I’m telling people that courts can’t always assign joint legal custody, how important was it to inform them that Oregon is not California? I mean, do you think I’m too stupid to know that Oregon isn’t California, or is it the casual readers of this blog that you felt needed to be informed of this staggering revelation? Pretty insulting either way.

    To sum up:
    You got snippy, intentionally insulting, and engaged in moving the goalposts, all because I pointed out a specific exception to a general rule you posted. Ouch.

  33. Donald June 15, 2016 at 7:16 pm #

    Divorce fights are amazingly common. Either party (or both) do whatever they can in order to hurt or get even with the other. They most commonly fight through the children. This always backfires. For example if mom uses junior to inflict pain onto dad, it will build resentment that junior has against mom. This resentment can build into lifelong consequences. The resentment can be small that it’s overshadowed by her strong desire to get even. However this small resentment erodes just like dripping water. It’s so small that it’s forgotten about. Only when the damage become catastrophic does it become noticed. By that time, it’s too late.

    (Fast forward 20 years into the future) Mom- “OMG! Why does junior hate me so much”?

    This is so obvious to me that it’s hard to comprehend why others don’t see it.

  34. James Pollock June 15, 2016 at 7:19 pm #

    “This is so obvious to me that it’s hard to comprehend why others don’t see it.”

    It’s difficult to think clearly while you’re in the middle of the emotional turmoil that is a divorce (usually. If your “conscious uncoupling is cool and rational, good for you, I think, but you’re not the typical case.).

  35. Donald June 15, 2016 at 7:22 pm #

    I agree with Donna.

    Pretend this fight is not about walking to school. It’s about one parent that will allow the child to get an ear piercing but the other is against it. Only then can you understand it better without your free range or bubble wrap parenting style cloud the issue.

  36. James Pollock June 15, 2016 at 7:30 pm #

    “I agree with Donna.”

    On that issue, so do I.

    Between two fighting adults is exactly where a good parent does NOT want their child to be. It’s hard to put “good parent” in front of “aggrieved former spouse”, but you should be trying your best to do it, any time your child(ren) can see or hear you. Yes, it’s even harder to do when your former spouse won’t, but it will pay off in the long run. Your children are neither blind nor deaf. They can see who’s being an asshole, and who’s putting them first.

  37. Donald June 15, 2016 at 7:33 pm #

    @James

    I agree with you. (which itself is amazing)

    When things get emotional, logic often takes a back seat. What determines this is the ‘fitness’.

    I often compare this ability to physical fitness. For example you can become so unfit that to walk 2 miles would make you very winded and sore. In other words you can have a low resistance in physical matters.

    In the same way you can also have a low resistance and allow emotion to disregard logic or any rational thinking.

  38. James Pollock June 15, 2016 at 7:53 pm #

    Donald, it goes back to the second comment on this article… Jennifer nailed it right off (not surprising, it’s her field of endeavor).

    On the other hand, divorce is AMAZINGLY stressful. It affects the mind, the body, and the soul. People can’t help but be affected by it. It builds up, over time, usually years, and then all surfaces at once as soon as one side or the other (or both) actually say “I want a divorce!”

    I’ve got fifteen years of perspective, now, and I think I did a pretty good job of focusing on my daughter (which, I think, the court recognized when the time came to involve them.) I made a conscious choice to try to avoid bad-mouthing my ex-wife in front of my daughter… a favor she did NOT return… but there were slips, and my daughter is perceptive enough to have picked up cues even as I tried to hide them.

    I try not to judge people who cannot control themselves in such a time, because I don’t think that anyone can (although, of course, some do a better job than others.) When asked, I counsel restraint and prioritization of the children. (No, not restraint of the children…)

    It’s ALREADY amazingly difficult for the children. Parents adding their shit to the childrens’ burden is godawful parenting. But parents are humans. All we can do is try to do better.

  39. sigh June 15, 2016 at 9:51 pm #

    My ex threatened to report me to the authorities when I allowed my then-8-year-old son to walk alone to school (a mile).

    Sadly, he went on and on to my son about what a terrible decision Mom had made and how dangerous it was and how he could have been kidnapped. This did a lot more damage than the walk to school did. In fact, the walk to school did wonders, until Dad pooped all over it.

    Still, there was no sense fighting about it. I simply stopped allowing my son to walk. It was devastating to me, but I told him we all had to agree as a family that it was a safe thing to do, and I said we’d have to wait until Dad thought it was safe.

    What I really wanted to say is that Dad is a paranoid destructive idiot, but this was only one of many awkward moments of co-parenting, and the kids have seen that Dad is, indeed, very self-centred and not too emotionally evolved. This is a sad part of their lives, but I’ve come to see it as their sacred journey with their dad.

    Help your kid cultivate empathy for the helicopter parent. What does Mom value? Safety? Predictability? Explain that this can be met in a number of ways. Mom’s strategy is to not walk to school alone. Maybe there’s another way for son to get his needs met: self-mastery, responsibility, etc… kids are great at coming up with strategies. But don’t legally insist he walk to school.

    I agree with above comments that this puts the kid in an impossible situation.

  40. Donald June 15, 2016 at 10:01 pm #

    @James

    Again I agree with you. (twice in one day! OMG)

    Things can get so stressful that a person can’t think straight. Iv’e been there. I talk a lot about the emotional part of the brain calling ‘martial law’ and logical/rational thinking is shut out because it’s an ‘extravagant luxury’. Iv’e been there as well.

    Getting past this can feel impossible! It isn’t. How to achieve this is hard to explain. All of the pages on my blog are about this, even the bureaucracy pages. It’s an example of the non thinking regulations and it’s very similar to the automatic programs in our head. (running on autopilot)

    http://www.onmysoapboxx.com/puppet

  41. James Pollock June 15, 2016 at 10:20 pm #

    “Again I agree with you. (twice in one day! OMG)”

    Pfft. If you just start by assuming that I am always right, as I do, and adjust accordingly, it can become a regular occurrence. Just relax and let it happen…

  42. Troutwaxer June 15, 2016 at 11:33 pm #

    I think there’s another issue. I see the description of the wife as a “classic helicopter parent,” and I’m wondering what else is going to be an issue in the future? What if the child wants to play flag football or soccer in the local “parks and recreation” league? Do both parents agree that the child needs swimming lessons, or does the helicopter mom believe that swimming is dangerous? What about riding his bike to a friend’s house?

    Did the breakup happen over differing parenting styles?

    In other words, what kind of precedent does this set for the rest of the child’s life and for the relation between parenting and risk? I think Dad has to ask these questions too, and possibly discuss them with his ex-wife and his lawyer. Is it worth making the point, as quickly as possible, that “arguing with reasonable risks will cost you several thousand dollars each time you do it?” And how do you weigh this against the question of “making the kid’s life hell due to a horrible custody battle?”

    Did I mention “get a lawyer?”

  43. JDL June 16, 2016 at 1:12 am #

    In the hopes of ending the back-and-forth between Donna and James, I will add my two cents. My answer presumes the dad mentioned in the letter has either sole physical custody or joint physical custody of the child. This is a reasonable presumption, because the fact that dad is letting the child walk to school implies that the child is staying overnight with dad on a regular basis, which implies dad has physical custody to some extent.

    OK. “Custody” is not a random word. In the legal context, it means you are acting as parent during the time the child is in your possession. With that comes the authority to make reasonable parental decisions. Allowing (and indeed, forcing) your 9 year old kid to walk the length of two football fields (including end zones) to school is hardly unreasonable. (Perhaps sometime in the future, a legislature might declare that allowing a child to walk to school is per se child abuse, but fortunately we are not there…yet.)

    When evaluating the issuance of an order that would interfere with a custodial parent’s parental authority, California courts do not use the “best interests of the child” standard. Rather, an order will issue only if necessary to prevent likely harm to the child.

    This issue rarely comes up in the context of something as silly as letting a child walk to school. More often, one parent wants to restrict the other parent from discussing certain religious teachings with the child, e.g. Marriage of Mentry, 142 Cal.App.3d 260, or restrict one parent from having homosexual guests in the presence of the child, e.g. Marriage of Birdsall, 197 Cal.App.3d 1024. In each of those cited cases, the courts refused to issue an order absent a showing of likely harm to the child.

    So, I would say that the chances of a court issuing an order prohibiting dad from allowing his kid to walk to school would be slim to none, absent any evidence that the child will suffer harm as a result.

    Caveat to dad: I am not a family law practitioner. So, my advice would be to retain a lawyer that practices in the family law courts of your county.

  44. James Pollock June 16, 2016 at 3:50 am #

    “In the hopes of ending the back-and-forth between Donna and James…”

    To summarize, in hopes of ending something that ended a good many hours ago, you ultimately offer the same advice I gave twelve hours previously, which is “get the opinion of a licensed professional who knows and practices custody law and the specifics of your case”.

    I would like to now formally add to that, “and ignore the legal advice you got from literally everyone else.”

    The parenting advice, pick and choose what you like. I think Jennifer’s advice up there in the second comment is the best of it, YMMV.

  45. SteveS June 16, 2016 at 4:37 pm #

    JDL, you bring up a good point and I think Donna (and possibly someone else) also said the same thing in an earlier post. In my experience, courts are very reluctant to step in and micromanage what one parent does. This doesn’t stop parents from trying, however.

    This is sad because the child is the one that is most likely to suffer. If would be nice if the judge in this case were to tell the mother to stop wasting the court’s time and put more effort in getting along with her ex.

  46. Betsy in Michigan June 16, 2016 at 6:08 pm #

    Article 12 of the United Nations Convention on the Rights of the Child:

    1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

    There are other useful items contained that an attorney might reference, too – get a lawyer. Everyone’s comments about divorced parents’ strife are well-considered, but keep in mind that there are parents who sometimes divorce BECAUSE they cannot agree on how to parent! I’m going to go out on a limb here and say that walking to school in a safe environment is a basic human right for a 9 year old. You know, giving a child the basic life skills they need to have a good life, instead of growing up to be an irresponsible, incapable, frightened snowflake.

  47. Donald June 16, 2016 at 6:25 pm #

    “Divorce fights are amazingly common. Either party (or both) do whatever they can in order to hurt or get even with the other. They most commonly fight through the children. This always backfires.”

    Just to add to my earlier comment.

    My Ex was a helicopter parent as well. We are civil to each other and don’t resort to ‘tit for tat’ (thank god!) However the kids soon learned that dad treated them as young adults and mom treated them as helpless pets.

    The kids are 21 and 25 now and this is no longer an issue. However my kids still respect that I acknowledged them to have enough intelligence to become self reliant. This is paying dividends and will continue for years to come.

  48. Kimberly June 17, 2016 at 1:29 am #

    The short answer to this is yes, she can petition the court to not allow the dad to allow the child to walk to school. There is no law that I know of that says the Judge must issue the order. It will be up to the Judge’s discretion and the father is within his rights to respond to her petition. Assuming the Judge is rational and there are no toxic waste dumps or hard-core gang territory the kid has to walk through, as long as the dad responds with a well thought out argument supporting his kid walking, I can’t see the Judge issuing such an order.

    This is just my opinion based on my own experiences in California Family Court. Of course, my ex took off in the middle of the divorce, so there wasn’t really anything for us to argue about.

  49. James Pollock June 17, 2016 at 3:04 am #

    “This is just my opinion based on my own experiences in California Family Court. Of course, my ex took off in the middle of the divorce, so there wasn’t really anything for us to argue about.”

    I’m jealous. My ex kept up the custody fight for almost a decade, total, before and after the divorce was granted.

  50. sexhysteria June 17, 2016 at 5:30 am #

    Steve has said it all!

    “The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation.”

    — Adolf Hitler, ‘Mein Kampf’

    So yeah they can do pretty much anything when the excuse is ‘protecting children’.

  51. Steve June 17, 2016 at 4:32 pm #

    “The child is the one most likely to suffer”

    ah yeah lets see…

    Morty (to Summer, worried voice): Do.. do you think mom and dad are gonna divorce??
    Summer (to Morty): I think its ok to dream, Morty…

  52. B June 21, 2016 at 5:00 pm #

    I’m fighting a similar battle right now about letting my daughter walk 4 houses away to a little waterfront. The ex thinks my daughter risks abduction, which is clearly a very, very, very, very remote possibility.

    ugh.

    Fight the good fight!