438. Child custody through divorce: Navigating the courts and building a custody schedule that works with Michael Fried

Michael Fried (00:00):

Originally it used to be tell me why one parent shouldn’t have sole custody. And over the past 10, 15 years, it’s more like, why shouldn’t there be 50/50?

Dr. Sarah Bren (00:17):

When faced with divorce, navigating child custody can be one of the most emotionally charged and overwhelming parts of the entire process. Questions about where your child will live, how decisions will be made, and what’s actually in their best interest can leave parents feeling scared, uncertain, and pulled in many different directions. Hi, welcome to Securely Attached. I’m Dr. Sarah Bren, a clinical psychologist and mom of two. In this podcast, I’ve taken all of my clinical experience, current research on brain science and child psychology, and the insights I’ve gained on my own parenting journey and distilled everything down into easy to understand and actionable parenting insights so you can tune out the noise and tune into your own authentic parenting voice with confidence and calm. Today, I’m joined by Michael Fried, a partner at the New York-based family law firm, Berkman Bottger Newman & Schein. They help families navigate divorce and child custody through mediation, collaborative law, and litigation.

(01:18):

Michael is an experienced litigator and trial attorney practicing exclusively in the field of matrimony and family law since 1997. Michael has assisted individuals navigating difficult matters related to equitable distribution, child support, spousal maintenance, and contested custody matters with patience, skill and sensitivity. In our conversation, we unpack what courts are actually looking for when they’re making custody decisions. We also talk about why the legal landscape has shifted towards shared parenting in many cases and what the “best interests of the child” really means and looks like in practice. We talk about how custody schedules are developed, why there isn’t a one size fits all approach, and how children’s developmental needs should shape the decisions parents make. We also explore the emotional side of custody, including why approaching the process is something to “win” often backfires. We talk about what helps children adjust to living in two homes and the communication strategies that can make co-parenting more successful, even when the relationship between parents remains difficult.

(02:25):

So whether you are currently navigating a divorce, anticipating a custody conversation, or simply wanting a better understanding of how as a parent you can protect your child’s emotional wellbeing through one of life’s biggest transitions, I think you’ll find this conversation both practical and reassuring. I hope you enjoy my conversation with Michael Fried.

(02:51):

Hello, Michael. I’m so glad to have you joining me this week on the Securely Attached Podcast. Thank you so much for coming to the show.

Michael Fried (02:58):

Well, Sarah, thank you for having me. This is great.

Dr. Sarah Bren (03:02):

Yes. Your partner at Berkman Bottger Newman & Schein, which is a New York City law firm. And you specializes in family law. And we’re going to be talking a lot about divorce. We’ve done episodes on the podcast about divorce in general because it’s a podcast about child development and families and a lot of families go through these big transitions and they’re tough. And I want it so that I think the reason why we keep focusing on it is because we’re trying to come at it. There’s so much complexity. And we’ve talked about collaborative divorce. We’ve talked about the importance of maintaining a healthy attachment during separations with our kids, but we really haven’t talked at all about custody and the nuances and complexities from a legal standpoint, from a development standpoint, from a family systems health standpoint. And so it’s definitely something that like a lot of parents are focused on and worried about.

(04:04):

It can be a barrier to entry. It can be a massive stressor during the process. So that’s what I was really hoping to have you on today to talk about and share your expertise. Before we dive into all that, maybe you could just start by sharing a little bit about yourself and the work you do and how you work with families.

Michael Fried (04:27):

Sure. So I’ve been practicing now for, it’ll be 30 years in January. I’ve been a partner with Berkman Bottger Newman & Schein now for the past six years. And what we do, we’re matrimonial and family law attorneys. That’s all that we do. But what sets us apart from other firms is that we offer three different ways of resolving disputes than specifically in custody disputes. So the three different ways are through mediation, collaborative law, and then the final way, the traditional litigation route. So I handle the litigation for the firm. It doesn’t mean that every case I have goes to trial or even goes into court. What I try to do is resolve my matters amicably, but if for some reason it can’t work out, we’re in court and we’ll litigate. So the three different areas, mediation. So I have partners that are mediators. I myself, I’m not a mediator, but I also work with litigants who need someone to consult with them.

(05:39):

So I’m a consulting attorney in a mediation. So the parties will both go into the mediation together without attorneys. But before the mediation, I’ll speak to my client and give him or her tips as to what they should be looking out for in the mediation. So the goal in the mediation is for the mediator to build a bridge to a resolution. They’re not giving either party any legal advice. They’re just basically setting forth, “This is what’s out there. What would you like to do?” So that’s one area, again, that we handle. Another area is collaborative law. And I don’t do collaborative law. I do have partners that do collaborative law. You have to be specially trained and licensed as a collaborative attorney. And what they do is this is where each party has a collaborative attorney and then experts are brought in. It could be forensic psychologists, could be accountants on the financial end, and they work collaboratively towards a resolution.

(06:46):

The difference in collaborative law though is in the event that the parties can’t come to a resolution, then those collaborative attorneys can no longer stay on the case, which it provides the impetus for parties to try to resolve their matter for having to then retain new attorneys. The problem with collaborative law is that you become so vested as a collaborative attorney in the process and have a lot of knowledge about the case. But in the event that the case can’t be resolved, you can’t stay on the case and you can’t use that knowledge. But again, it does put pressure on the parties to try to come to a resolution. And then the final way that we can resolve disputes is through litigation. But once again, like I said, doesn’t always mean you’re in court. It just means two attorneys trying to work out the resolution of the case.

(07:43):

And if they can’t, they get the court to assist them to resolve the case. So it’s one of the things, again, that sets our firm apart is that we do offer all three types of litigation. And sometimes I’ll know from the moment that a client comes to our office, this might be a great opportunity to do mediation. However, there are instances where I say this cannot go to mediation or collaborative law. And that’s when there’s unfortunately domestic violence.

Dr. Sarah Bren (08:17):

Obviously domestic violence and anything where we’re talking about like, this isn’t safe. We need to really call in supports to keep everyone in the family system safe. Other than that, how do you guys. You’ve probably gotten pretty good at this point, doing this as long as you have, of kind of matching people with the right path. What are the things that you look for to say, “Ooh, this could be a really good mediation pathway or collaborative could be really helpful here. I think this really needs the litigation pathway.”

Michael Fried (08:52):

So what I do look for is instances in which I see a potential client is maybe a little more passive than the other parent. I may want to push them towards the litigation route because if they’re on their own and the other spouse is more assertive, that other spouse’s voice may be heard more in the mediation. And I’ve had a lot of instances where I’ll tell a client, “I think you’d be best not to proceed with the mediation because your voice may not be heard as much.” Sometimes they need that support of an attorney so that we become their mouthpiece. A lot of times clients get. And look, it’s totally understandable. It’s not normal to be dealing with these issues. They’re highly sensitive matters dealing with children. And it’s emotional and it’s very difficult for them sometimes to get their point across. On the other hand, I’ve had clients that are very assertive and most importantly, flexible.

(10:08):

Somebody that’s looking to maybe. And looking towards the child’s interests, putting the child’s interest over their interests. I think those are the types of individuals that are best suited for mediation. Those that can assert their position, that are flexible and really want to put their children’s interests first.

Dr. Sarah Bren (10:33):

Yes. Okay. And I would imagine most parents want to put their children’s interests first and their emotions get in the way. And that insight and to be able to say like, “I know this is going to be really challenging for me to…” When we talk about custody, I mean, when I speak to parents, and granted, I speak probably more often to mothers than fathers, but I still speak to a fair amount of dads who are navigating divorce. And I think for every single parent I talk to, mother or a father, one of the biggest fears about a divorce is I’m going to see my kids half the time now. And it’s incredibly painful. It’s incredibly scary. There’s a lot of grief. There’s a lot of anxiety. And those feelings, when not really processed, dealt with, permitted to kind of exist and be worked through, they can really create a lot of chaos and impulsivity or withdrawal or reactivity.

(11:55):

It can become really volatile really fast. What do you see when you’re working with families that are trying to just grapple with the fact that they have to think about custody now in a different way than they’ve ever had to think about it before?

Michael Fried (12:10):

So the problem is human nature itself. The problem is that people will go into this and they want to win. And it becomes about what can the court do for me? What can I get out of this mediation? What do I get out of this court proceeding? As opposed to looking at what, like I said earlier, putting the child above your needs. And I find that a lot of times I have parents that come to me and all they want to talk about is how bad the other parent is, how bad dad is, dad did this, dad did that. And while it’s okay to express that to me, what I look to do is I look to try to change their thinking about putting your best foot forward in terms of how you can present the best way to the court or to a mediator saying, “I’m looking at it in terms of what can I do for my child?

(13:17):

What can I do? How can I put them in the best possible environment?” And mediators, courts, they look to. And again, the standard in New York is the best interest of the child. And that doesn’t mean who’s the best parent. It means what can we do to put this child in the best possible environment so that they could thrive in the future? So by doing that, I’m not focused. I don’t want my clients focused in on the negative attributes of the other side. What I want them to do is be able to express how they are going to put the child in the best possible situation, the best environment for them so that they can thrive. So I try to dispel the notion of parent bashing and make it more about being, I guess, problem solving. How do I put the child in the best possible position to thrive?

Dr. Sarah Bren (14:23):

Yeah. And if the standard is, what is the best for the child? And we’re seeing that you know better than me, but it seems like the chances that a custody case going to be less than fifty fifty is the exception, not the rule. Most of the time it’s fifty fifty split. Do you see that to be the case? You do the legal side, we do the mental health side. And I feel like we work with so many divorcing parents where the work really is helping a family cope with the grief and the loss that comes with sitting in the reality that like what’s best for the child. And even if it doesn’t feel good to you. And what’s also most likely to be the outcome. Again, not talking about domestic violence cases. I’m just talking about your average, the middle of the bell curve of your divorcing families.

(15:36):

That this is a big piece and figuring out radical acceptance and like figuring out how to cope with the reality of this and really then by doing that work, be there for your kids in a way that allows the kids to cope with the changes that come when you’re doing fifty fifty custody. Where do your take on that? Do you find that that’s the case? Do you find that you’re helping clients work through that reality and prepare themselves for that reality or are you seeing it to be different?

Michael Fried (16:08):

Well, so there’s been a trend over the past, I would say 10, 15 years. Originally it used to be, tell me why one parent shouldn’t have sole custody. And over the past 10, 15 years, it’s more like why shouldn’t there be fifty fifty? And one of the reasons when we’re looking at fifty fifty, there has to be a sense of cooperation, of working together, parents working together. And that’s why one of the most important factors when we look at best interests of the child is one parent’s ability to foster the relationship between the other parent and the child. Absent that, if you don’t have that, how are you going to work on a fifty fifty arrangement? Because working on a fifty fifty arrangement, there’s a lot of logistics behind this. When somebody has sole custody, let’s say it’s maybe just alternate weekends. It’s very simple to say like, “Okay, Johnny, at the end of the week, you’re going on the weekend, you’re going to be at dad’s and then you come back here.” But with a fifty fifty arrangement, there’s the need to be able to cooperate and coordinate more between the parents.

(17:31):

And that’s why when we do this, and one of the best features. We’re now in 2026 and we’re all living on our phones and we have these apps. And one of the best apps, and I don’t work for them, I’m just telling you that OurFamilyWizard, we use this all the time. It’s actually endorsed by the courts. I’ve had many instances. I was in court last week and the court ordered both parties to enroll in OurFamilyWizard. And just to give you a little bit of background, OurFamilyWizard is an app which basically it takes care of any and all communications between parents in a custody dispute. And there’s a date stamp when there’s a text communication via OFW where you know the time the communication was made and you also know the time when the communication was then opened by the other side and responded to. So it’s a safe platform.

(18:36):

And most importantly, the parties know that these communications are going to be viewed by the attorneys for the child, the attorneys for the parties, potentially the forensic psychologist, potentially a parenting coordinator. So there’s already an understanding, “Hey, I have to be careful and make sure I’m doing the right thing.” So there’s safeguards there. And there’s even a tone meter where if your conversation gets to be a little, let’s call it adversarial between one parent to another, you’ll actually get a notification to maybe make it a little, let’s do it a little softer.

Dr. Sarah Bren (19:20):

Okay. So it’s creating accountability. It’s creating some scaffolding for maybe some emotion regulation in there. It’s creating some sense of like, okay, even though it’s really hard to communicate perhaps because there’s conflict in this relationship, there’s this sort of protected space where people are like, “I’m going to have support. I’m not alone in this communication.”

Michael Fried (19:52):

Correct. That’s correct. And for us as attorneys, we then have everything at our disposal. We have the text messages. We have the emails. Also, there’s a calendar, a shared calendar, which also can be monitored as to who puts an entry in on a certain date and when it’s reviewed. So it takes away the he said, she said that is prevalent in custody matters. It makes it, again, like you said, there’s accountability. And in that sense, when you were talking about a joint custodial arrangement, if the parties can work on their communications, it will work. And I’ve had clients that we’ve resolved their case and five years later they’ve come back and they’ve contacted me and they say, “It’s been so much better.” And I always tell clients that usually once that the proceedings are over and things calm down, the communications work so much better between the parties because now they have a shared interest and that’s the welfare of the child.

(21:06):

But when you’re in the courtroom and you see the judge with the robes, again, it’s human nature that you’re going to try to win. And the goal here for your listeners is this isn’t about winning or losing. This is what’s in the best interest of the child. How do we get there? And it’s more about putting your child in the best possible environment.

Dr. Sarah Bren (21:34):

And I’m curious because you’re seeing this shift where maybe 10, 15 years ago it was more common for that standard hasn’t changed, but our definition of it, our understanding of what is really good for kids seems to be more nuanced and more informed. And so if you’re seeing this shift, that more often than not, what’s being decided by the courts as the best interest for the kids is this joint custody. Does that give us any insight into like, is that because the courts are considering more information about child development and like relationships with multiple secure attachment figures can be really supportive to child development? Is it because it’s. What’s causing some of that trend?

Michael Fried (22:30):

I think from what I’ve seen and talking to clients, there’s been more of a sharing of roles and responsibilities to daily tasks in terms of feeding, in terms of caretaking, nighttime routines. And I’ve had clients that have actually prepared journals and during drop offs, they’ll exchange the journals and say, okay, especially when there’s a child that’s ill and they’ll put the medication down like, okay, I gave Dimitab this amount of milliliters. Okay. When you get the child, you have to do the medication in six hours. There’s a lot more of a sharing of responsibilities. And I think it’s really roles have changed with parents over the past, I would say 25, 30 years. And people are working. Mothers are working. And it’s not a situation where you had, from the 1950s, where you had a stay at home mom that would never look to go out and work you.

(23:50):

You have parents that are both working. They both take responsibilities. And I think that has a lot to do with it. I think it has a lot in terms of the sharing the roles that you don’t have a parent that is coming into this unfortunate circumstance of a divorce saying, “I’ve never changed a diaper. I’ve never fed my children, never gave them a bath.” You have parents that are hands on. I could tell you, when I was growing up, my father couldn’t do any of that. And it was always my mother doing everything. And I have now a 26 and a 23 year old. My wife would never have put up with me saying, “I don’t do that.” So I was always the one getting up in the middle of the night, taking care of them. On the weekends, being up at five, six o’clock while I let my wife sleep because she worked hard during the week. So I’ve seen a huge swing in that respect. And I think it’s come across to judges and mediators that it’s not a one parent situation anymore.

Dr. Sarah Bren (25:08):

Yeah. And I think that that really says something wonderful about the direction that we as parents are headed. Like you said, there’s more sharing of the load. There’s more paternal involvement in family life. And we have a more just interwoven existence with our family systems. And that’s a healthy family system. And even if the family system is, I always say this, you’re a family system, whether you divorce or you don’t. Even a divorced family system is still a family system. It’s now a different shape and size. It has a new form, but if you have kids, you can’t completely undisentangle yourself from that other person.

(26:02):

And even if custody isn’t fifty fifty, there’s still a relationship that exists. Whether it’s a healthy relationship or not a healthy relationship, whether it’s an estranged relationship or not, there’s a thread that is now permanently connected inside of these relationships. And so when you understand that, I think it makes it far more. It’s still difficult, but I think it makes it more understandable why putting in the work to try to figure out a way to maintain the health of the family system as much as possible. In whatever way works for your unique family system, obviously. But it’s hard.

(26:45):

But being open to this possibility, you were talking about the families that you’ve seen that have the journal that they pass back and forth when they cross over the custody arrangements. When you’re working with families and you’ve seen it work well, when you’ve seen families cope with the grief and figure out a way to be resilient in the face of shared custody, what are the things that you’ve seen help families? What tends to be strategies you’ve seen people use that are effective, like that way of sharing communication and keeping people in the loop even if it’s, we don’t want to talk directly?

Michael Fried (27:27):

Right. And again, I think it’s a shared goal of making sure that the child is thriving during this difficult time. I think being able to recognize that your child’s needs take precedent over your own is where that’s really where I’ve seen the best communication between the parties, putting their differences aside. And I’ve had really difficult, contentious custody cases that have gone to trial where the parties are, I mean, just can’t stand each other, but they had a common goal of making sure that these children thrive. And it’s difficult to kind of compartmentalize your feelings for the other and yet being able to still co-parent. It’s I think the most difficult part of this. And even in the most, I would say, cooperative situations that have gone through mediation, there’s still that feeling of mistrust and unfortunately hatred towards that other parent. But when it comes to being there for the children, being at their activities, telling the other parent, “Hey, the child’s sick.

(29:01):

I’m not going to do the visit tonight. I could hear it in their voice. They’re not doing well.” Making that sacrifice for the child is everything that I see. And just for your viewers, there’s so many different ways in which we do these schedules. I mean, half the time what I’m doing is trying to understand what the children’s needs are, their activities. A lot of times you have children with special needs. You have to look into how does a schedule fit into their needs. So when we’re looking at a fifty fifty schedule, there’s so many different ways of doing it. Some people do, there’s different, there’s like what’s called a two, two, five, five where let’s say one parent will have Mondays and Tuesdays every week. The other parent will have Wednesdays and Thursdays every week and they alternate the weekends. So it actually turns out two days with mom, two days with dad, five days with mom, five days with dad.

(30:13):

It works out. Now that may work with some people because there’s stability. The children know every Monday and Tuesday they’re with mom. Every Wednesday and Thursday they’re with dad. Sometimes we do a two, two, three, which is a little different because let’s say Mondays and Tuesdays they’re with mom. Tuesdays and Wednesdays they’re with dad. Then they flip Monday and Tuesday the next week with dad. Wednesday, Thursday with mom. That flipping provides you with a two, two, three. Mom, two days. Dad, two days. Then the weekend, then you switch. So when we’re doing these schedules, we’re looking at not only what’s good for our clients, because I’m representing mom. So I’m always looking out for what’s in her interest, but also with an understanding that is this something that’s even possible for your children?

Dr. Sarah Bren (31:14):

Right. Because I’m thinking about, I work with so many neurodiverse kids that are like, the switching of that could be really, really challenging.

Michael Fried (31:23):

Right. So there are some instances where I’ll say, you know what? 223 is not going to work and 2255 is not going to work. We may have to do a three, four, four, three. So it’ll be four days with mom, three days with dad, and then flipping it. There’s so many different ways. And what’s important for your viewers to understand is that there are so many different permutations that can be done in order to work out a schedule. But besides looking at, well, I’m working, I can’t do this. Most importantly is can the children handle the back and forth, the shifting? What’s the age of the child? Because look, at an earlier age before they’re entering into school, it may be okay. But as they go higher and higher into their development, it may not be okay. And then you also run into the situation when they’re 10, 11, 12, maybe even 13.

(32:26):

They don’t want to spend the time with mom. They don’t want to spend the time with dad. And then you’re into a whole different aspect where as a parent, you have to still promote the relationship and say, “You need to see your mom. You need to see your dad.” And so there’s so many different dynamics. It really depends on the age of the child, their ability to adapt to this changing of now two households. Going from one household to two households. And I’m sure, Sarah, you could tell me that that sometimes is so difficult for a child of any age to be able to adjust to. So it all depends on their temperament.

Dr. Sarah Bren (33:12):

It does. And I think the preparation too. I will often say it’s not what you do, it’s how you do it more than that will predict the outcome for the kids. Let’s just say you figured out a custody arrangement and a schedule that’s like, this is the only one we can figure out. This is the only one that will work. And maybe it’s hard for the child. Finding ways to work within that schedule to make it easier for the child is still an option. Anything, I always say whenever there’s a change and whenever there’s big transitions, new sibling, new school, a move, a divorce, whatever. So the metaphor I’ll always give is like when something big changes, it’s like a snow globe. It shakes the whole snow globe.

Michael Fried (34:04):

Right.

Dr. Sarah Bren (34:04):

And it feels like everything is in motion. And it takes a while for all of that snow to settle. And so one is just understanding like, “Hey, we’re just talking about where you’re sleeping tonight, but it seems like all of a sudden school is being weird for you. Like you’re having trouble there or your appetite’s weird or you’re having behavioral regressions.” But you have to recognize that the change will touch every aspect of a child’s experience at the beginning and we can see it pop up in weird places. And to just be able to say like, “This makes sense. Okay. We need to kind of lean in, create more support.” But I think things that can help whenever there’s big transitions is looking for anchors. What can I create that feels very reliable, very consistent, very predictable, very in my child’s control? Maybe that looks like they get to really participate in creating the space in each place that they’ll be sleeping in.

(35:04):

Do they get to have some say in how the room is set up and what goes in it? Are there certain things that matter to them? One of my kids loves the feeling of flannel sheets. Even in the summer, I’m like, “I don’t know how you do it.” But they love that soft feeling. And it’s like, how can we make sure that these little details are present in both places and that both parents kind of respect these preferences and needs of the child so that they can create an environment that feels really soothing and really consistent and predictable for that kid.

(35:40):

Organizational systems too, I’m thinking of. Making sure that everybody has a system for packing the backpack. Everybody has a system for all the steps for the nighttime routine and that those elements are present. If we need to have two levees that live in both places, if it’s a little kid or backup levies, if one didn’t make it in the car, is there comfort items that are consistent and reliable for all ages? Teenagers need their music players. They need their whatever, things that are important to them for feeling like they’re in control of their environment and have a place to go and soothe and reset that feels consistent across those two spaces. Those can be really helpful when you’re dealing with a lot of back and forth.

Michael Fried (36:35):

It’s actually interesting you mentioned that because I know we do put in our agreements that, especially when we’re dealing with younger children, that both parties need to cooperate in making sure that the children have the necessary items they have for the visit with the other parent. And it all comes back to being flexible, being cooperative, which by the time we’re ending up resolving our case, it’s there. And these people wouldn’t enter into these agreements if they didn’t think they can do it. So yeah, it is interesting to see from the start of the case where they said, “There’s no way I’m giving dad this weekend or that weekend to the end of the case where they see the light at the end of the tunnel and they say, I understand it’s not always about me. It’s about what’s best for the child.”

Dr. Sarah Bren (37:36):

Yeah. I mean, it’s the process, right? I mean, at the beginning, it’s high threat, high stress, high rage, anger, denial. It’s all the things that’s all very raw. And I would imagine hopefully in a successful divorce process, that all will start to subside as things start to feel more safe and start to feel more grounded and there’s more acceptance of the reality. And there’s more of a learning, okay, this is hard, but I can handle it. And I could see that there’s an arc to the process emotionally. And hopefully by the time you get to the really finding the nitty gritty details out, we’re lower on the arousal.

Michael Fried (38:25):

Yes, definitely.

Dr. Sarah Bren (38:34):

I want to take a quick pause because one of the hardest parts of divorce is that it rarely affects just one person. It impacts you, your children, your co-parenting relationship, and your entire family system. And in the middle of all that, you’re often expected to figure out what kind of support everyone needs and where to find it. At Upshur Bren Psychology Group, we’ve created a place where you don’t have to do that alone. Whether you’re trying to decide if divorce is the right path, if you are navigating the divorce process itself, or adjusting to a new co-parenting relationship, or maybe you’re helping your children adapt to life across two homes, our team is here to support every stage of the journey. We offer a wide range of services, including individual therapy for parents, therapy for children and teens, co-parenting support, family therapy, parent coaching, and divorce-specific support groups.

(39:28):

Because our clinicians work collaboratively under one roof, your care is coordinated across the whole family. Instead of managing multiple providers on your own, you have one trusted team working together to support everyone involved. With in-person sessions in Westchester, New York, and virtual services available worldwide will help your family move through this transition with greater clarity, confidence, and connection. If you’d like to learn more, you can schedule a free 30 minute consultation by clicking the link in the episode description or visiting upshurbren.com. That’s U-P-S-H-U-R-B-R-E-N.com. Okay. Now let’s get back to my conversation with Michael Fried.

(40:10):

So if parents are beginning to negotiate a custody arrangement, are there things that you would. Advice you’d give them before the process starts? Are there things that parents, it’s good to document, it’s good to take note of for both supporting your case in what’s the best interest of the child, but also to make sure that you’re taking stock of all the things your kid might need in this arrangement?

Michael Fried (40:42):

Yeah. That’s one of the things I always tell my clients at the start of a case. Keep a journal. Keep a journal of daily activities with the child, what you do, what they do. The routines. Routine is so important when you’re dealing with this because children, they love structure. They love structure. They don’t like to be out of their norm. And so I like for clients to be able to provide me, because I’m their mouthpiece. If I’m in court, I need to be able to express to the court, look, my client, she’s been the primary caretaker since day one. She does this, she does that. And on top of that, she’s always advising dad of school events, parent-teacher conferences. So I need that information for me. As a litigator, evidence is food. That’s how I live. So I need this information in order to bring it to the court’s attention.

(41:49):

So I want to know, and by the end of the case, I usually know more about their lives than they do because you learn trends, you learn things of how they react to stress and things like that. Because I need to be able to express to the court, yes, under this stressful situation, my client did the right thing and did X, Y, Z. So yes, it’s so important to be organized. Organization is key in any facet of the case, whether it be custody or the financial aspects. Organization is everything.

Dr. Sarah Bren (42:27):

Do you find that people tend to over-document some noise and miss the really important stuff? Short of recording your entire life, what are the things that really move the needle in terms of what’s best for the kid and tracking that stuff?

Michael Fried (42:46):

Yeah. I mean, always from a medical sense, in terms of how they care for the children when they’re sick. In terms of academics, doing homework, making sure that they get their homework assignments done, things like that. When I speak to my clients, I tell them I don’t want a book. I want short paragraphs, just what happened during the day, anything out of the ordinary, bedtime routines, what were they? I want to know in the beginning what the routine is. And then I want to know as the days go on, have there been any variations to that? So I want to know a baseline first of how everything takes place in the household from bedtime routines to wake up routines to after school, what happens after school, to the weekends. How do you spend your time with them during the weekends? Get that baseline. Then I tell them from there, any variations.

(43:51):

I only need to know any different variations. If they were sick, how did you address it? Things like that. So that I can express to the court, this is what my client does with the children. And under certain circumstances when there’s been changes, this is how she’s handled it.

Dr. Sarah Bren (44:10):

Got it. Got it. And I mean, I know we’re talking about this from the sort of first pass of determining custody and kind of that initial process. But once families divorce and have a custody arrangement, as the kids get older, are there transitions that happen after divorce that would create a reason to revisit custody?

Michael Fried (44:34):

Sure. That’s a great question. And it does happen. And oftentimes disagree, but it’s a living, breathing agreement and it’s subject to change because children get older. Children’s needs change. As they get older and they, like I said earlier, sometimes they don’t want to spend as much time with mom and dad, not because mom and dad have done anything, but they want to hang out with their friends. Sometimes there’s just changes in their needs as they are growing. Because remember, custody is only determined up to the age of 18 in New York. And as a child gets older, their wishes are become more. They’re addressed and they’re looked at more than if you have a child that’s three or four years old. And I always say a 13 or 14 year old is like an 800 pound gorilla in the room. They’re going to do whatever they want.

(45:30):

And that’s really what happens. If they want to spend more time with their friends, they may not want to have a 223 or a 2255. And sometimes we have to adjust because that’s what’s in the best interest of the children. So the legal standard to modify custody is a change of circumstances.

(45:55):

And sometimes, unfortunately, it’s due to one parent not acting in the right way and maybe missing visits or not spending the appropriate time or doing the appropriate things and we need to modify. Sometimes it just happens naturally because of a child’s needs. So it does happen. It happens often, unfortunately, just so your viewers know that you could work out a settlement, but you may end up coming back to deal with these modification issues, not only with custody, but also financially with child support as well.

Dr. Sarah Bren (46:37):

And is that something. Do you have any advice for families in terms of when is it worth it to say, “Okay, I’ve tried as much as I can on my own and I need a little help with this process again?”

Michael Fried (46:47):

Sure. So there are many instances where I have clients coming in saying, “Dad is dropping off the child 12 minutes late or five minutes late.” And this may happen one or two times. And I’ll say, “I think what we need to do is we need to keep track of it, keep a record of it. If it’s pronounced, it’s a basis to actually change custody from joint custody to sole custody.” But you want to do it when you have enough ammunition as a litigator. I don’t want to have a single instance here or there. It’s got to be a pronounced course of conduct that would necessitate a modification based on a change of circumstances and that it’s in the best interest of the children to modify the custodial arrangement. So I tell my clients, monitor it. Again, journal it. Keep your brief notes on it. But if it’s something that’s going over and over and over again, then come to talk to me.

Dr. Sarah Bren (47:56):

Okay. It’s good to know that it’s not a one and done. This is a long-term support system with your legal team. You don’t have to just start over every time.

Michael Fried (48:09):

Right. But you want to make sure that you do it right the first time. And a lot of times people will go in on their own thinking that they can handle this even though they’re not attorneys. And they end up coming to me when there’s already a schedule that’s probably not only not in their best interest, but not in the child’s best interest. So it’s important to have legal representation at the outset of a divorce as opposed to trying to do it on their own.

Dr. Sarah Bren (48:41):

Yeah. Yeah. Well, if people want to get in touch with you, if they want. You have a podcast as well. Can you share a little bit about where people can connect with you?

Michael Fried (48:52):

Absolutely. So the best way to connect with me is by email. So my email address is M-F-R-I-E-D@berkbot, B-E-R-K-B-O-T.com. So it’s mfried@birkbot.com. You could learn more about the firm through our website, www.burkbot.com. I’m on LinkedIn. I have a podcast, Five Minutes with Freed. We’ve done over 250 episodes so far, started during COVID. And so I could be found through LinkedIn, through the website as well.

Dr. Sarah Bren (49:37):

Amazing. And we’ll link all that in the show notes too, so it’s easy for people to find.

Michael Fried (49:40):

Terrific.

Dr. Sarah Bren (49:41):

Thank you. Thank you. This was really helpful to hear about all this. Thank you.

Michael Fried (49:45):

And I want to thank you so much, Sarah. What you do is so important also for us because what you do is beyond our pay grade, basically. And so I wish I knew more, but it’s good to have people like you to lean on when dealing with these issues and having an outlet. I always strongly, I tell my clients it’s so important to have therapy because I need you to be strong through this process because you feed me the evidence I need in order to best advocate for you. So I need you to be healthy mentally, physically, and through your work. It’s a great help.

Dr. Sarah Bren (50:29):

Yeah. And we know the research really bears out that one of the biggest protective factors for kids when their families are going through anything really challenging like divorce is parental mental health and physical health. So if you have support and you are approaching this as. You talked about we want to put the kids’ needs before your needs. And I do think it’s so important to put the kids’ needs first, but I also think I would tweak it ever so slightly to you need to put the kids’ needs before your immediate distress in the moment, but your needs are so important to honor. But these core needs, not maybe a need for vengeance in the moment as much as a need for safety, security, to feel seen, to feel like understood. And if you have that, whether through your legal team or your mental health team, your kid is going to benefit from that because this whole process is going to benefit from that.

Michael Fried (51:33):

No question. Absolutely.

Dr. Sarah Bren (51:36):

Thank you so much. And it was great having you on.

Michael Fried (51:40):

Thank you.

Dr. Sarah Bren (51:46):

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