Do I stay put to avoid risking custody of my kid?


From Friday's Globe and Mail

April 11, 2008 at 9:15 AM EDT


My wife and I are separating after a three-year marriage. We tried counselling - which was useless. We tried mediation, which has gone nowhere. Now, on the advice of my lawyer, I'm not going anywhere either, until we have a separation agreement. Without one, I'm told, I risk being viewed as the party who jumped ship and that would work against me when it comes to custody issues surrounding our two-year-old daughter. So we've been living under the same roof, in separate rooms, for three hellish months that just took a turn for the worse: Last weekend, my wife brought home her new boyfriend, who spent two days lounging on my couch, watching my TV and sleeping with my wife in our marriage bed. It ended badly, with a shouting match between me and the new chump and we almost came to blows. I'm at my wits' end and might just leave to avoid a physical confrontation. Should I stay or should I go?


Okay, ten-hut, soldier.

This is domestic jungle warfare, hand-to-hand combat at its most savage and visceral, and you're behind enemy lines.

Your gun's jammed, full of mud, you've seen a lot of good men go down, and the soft pop-pop-pop sound of bullets hitting the ground is getting closer.

The temptation is to go scorched-earth, grab the radio and scream for a napalm hosedown of the whole situation, leaving everything in the vicinity charred and smoking.

But don't do that. In fact, don't do anything. Stay ultra-cool.

Even if your wife praises her new boyfriend's sexual prowess in front of you, and mocks yours: Do nothing. If screams of erotic transport shake the walls, and your daughter is screaming, bawling, saying, "Daddy, what's happening," comfort her, of course, but apart from that: Do nothing.

Am I coming through loud and clear, soldier?

I'm basing my advice on the sage counsel of two members of Damage Control's crack legal team: criminal lawyer Irwin Isenstein and Eric Shapiro of the family law firm Skapinker and Shapiro. I've retained their services on a pro bono basis to help me with the legal aspects of your problem.

One thing upon which they concur: If you lay a finger on anyone in this situation, or utter anything resembling a threat, you are, jurisprudentially speaking and custody-wise, screwed.

Or, as Mr. Isenstein puts it: "All it takes is a phone call and you're gone."

If you're arrested for assault or uttering threats, and charged, the terms of your bail will probably be that you not return to your apartment. And you may even be prevented from seeing your kid.

And it'll end in tears for you in court. Even if you feel you're in the right, even if you're provoked - don't touch anyone. Don't even touch the phone.

In any situation involving couples, cruisers and flashing lights, the possession of the Y chromosome puts you at a distinct disadvantage. Or, as Mr. Shapiro puts it: "In domestic disputes, everyone has their own version of events, there are usually no witnesses and, to be fair to the police, it can be hard to sort out what really happened."

You could get hauled off anyway.

I know it doesn't sound fair, soldier. But as Tom Berenger, playing Sgt. Bob Barnes, says in Platoon: "There's the way things ought to be. And there's the way things are." (Right after grabbing a joint some private is smoking and bringing his battle-scarred face up to the other guy's with a growl: "You smoke this ... to escape reality? I am reality!")

But at the same time, crazy as it may seem, your lawyer is right: It would be a mistake to move out. If you do, Mr. Shapiro says, your soon-to-be-ex gains control of how often you can see your daughter.

"It could be every week, or it could be once a month," Mr. Shapiro says. "If you leave, it's up to her discretion. She gets control over the situation."

Leaving confers upon her a sort of instant custody. And that, too, will go badly for you in court.

So stay put, soldier, no matter how intolerable the situation becomes. If it gets to be too much, go for a walk, see a movie. But stay hunkered in your bunker until the issue is resolved. If you haven't begun litigation proceedings to get this case before a judge, do so immediately. From there, it can take six to eight weeks or possibly even longer, Mr. Shapiro says.

And that may be a time of hell, a time of pain for you. But what can you do? That's the reality of your situation. You can't escape reality. You can try, but if you do, well, I have one thing to say (and I want you to imagine the tip of my nose almost touching the tip of yours, my scarred, stubbled, and world-weary face filling your field of vision, and my spit spraying as I bark out the following):

"I am reality, you little worm! You want joint custody? Then take the pain, soldier! Stay still and don't utter a peep! Don't even flinch! Or I guaranfriggintee you will end up one of those sorry sad-sack sumbitches who hardly ever gets to see his kid! Do I make myself clear, maggot?"

Sorry to be such a hard-ass. But it's for your own good. I just want to see you make it back to civilian life in one piece, to see you and your daughter laughing and playing in the sunshine, waking up and making pancakes together.

Happy, in other words.

David Eddie is a screenwriter and the author of Chump Change and Housebroken: Confessions

of a Stay-at-Home Dad.