How to Win Custody

Custody cases are complex creatures.  There are many moving parts to a custody case, and not one issue is more important that another.  Winning and loosing a custody case is usually everything, and sometimes the only thing parents cling to in a divorce case.  Having an attentive lawyer is certainly important, but there are other issues for every parent to think about.  I can't count how many times that parents have asked me how they best can prepare to win (or not lose) custody.  The answer isn't a simple check-list of things to do, or things to avoid. The answer involves a host of issues that are intertwined in a divorce case, that I wouldn't know where to start or what topic is more important.  Certainly, the topic is convoluted.  It's easier to openly discuss what not-to-do in a custody case.  So, I have comprised the most important things parents should NOT DO when entering a custody case:

 

No. 1 thing NOT TO DO in a custody case.  Control issues usually hurt a parent's attempt at securing custody.  Keeping the children away from the other parent is usually frowned on by the Court system.  As a general matter, the Judge wants to secure the most time and involvement of both parents into a child's life.  Doing things to prevent this from happening isn't going to make you look good in a custody case. Additionally, an important factor in deciding custody is the ability of the custodial parent to foster a relationship between the children and the other parent.  So, if you're unable or seem unwilling to foster a relationship between the children and your spouse, kiss custody (and your children) good-bye.

 

No. 2 thing NOT TO DO in a custody case.  Never accuse the other spouse of doing sexually inappropriate things with the children (when you know, it's not true).  These types of accusations, when not true, show obvious tendencies to alienate the children from the other parent.  Some parents think that by bringing this issue up, falsely, will guarantee a custody win - when actually the opposite is true.  There is ample case-law to suggest that the parent making false accusations of this sort, is the parent that should not have custody.  So, only bring this issue up, if you strongly believe that it's occurring and you have some medial corroborating evidence of the abuse.

 

No. 3 thing NOT TO DO in a custody case.  Do not accept a job that involves extensive travel or odd work hours.  It really boils down to a matter of practicality.  If you're not physically able to care for the children at night (because you're at work or out-of-town), then the natural result is that you will not have custody.  This the the main reason why stay-at-home moms usually get custody (its not that they're the better parent, it's just that they're more available to provide care).  

 

No. 4 thing NOT TO DO in a custody case. Under no circumstances should you be introducing or involving your children with a new boyfriend or girlfriend.  It doesn't matter how well he or she gets along with your kids, and it doesn't matter how well this other person's kids get along with your kids.  Putting your kids in contact with a significant other and or children of a significant other is a giant mistake in divorce.

 

No. 5 thing NOT TO DO in a custody case. You shouldn't even try to represent yourself in a custody case.  While I am a firm believer that many people are capable of representing themselves, litigation in a custody case is highly emotional and you shouldn't try this on your own.  Plus, its difficult to blame ourselves for our own mistakes, so if the case doesn't go your way, you'll be quick to blame the Judge and the Court system (and you'll likely do this openly).  This could have a disastrous affect on how you act and are perceived in Court.

 

No. 6 thing NOT TO DO in a custody case.  Do not be overly rigid.  Having firm ideas as to what custody and parenting time means to you is important.  However, always try to be flexible.  For example, if the Judge or a Custody Evaluator asks you how you would see a visitation schedule, if your spouse had custody, most parents panic and become overly rigid. Their answer is usually, "I don't know why he/she would get custody" or something like that.  Generally, the question was only a test to see how rigid you are and unwilling to be flexible to maximize time between the child and the other parent.  In this case, you have fallen into a common custody trap.  The correct answer would have been, "well, I don't know.  I would like to have maximum amount of time with my child, what are my options in that scenario?"  

 

No. 7 thing NOT TO DO in a custody case.  Do not attend every court date.  Attending court dates when you need to be there is vital.  It's required by law, if the Judge orders you to be present in Court.  But, that's where it should stop.  Most divorce or custody cases involve "status conference" dates.  These court dates are set usually 30 days apart and are designed to inform the Judge as to what is happening behind the scenes.  Are we close to settlement?  Is discovery complete?  Can I help getting the parents over a disagreement?  These are the typical questions of a Judge.  Do not attend these court dates.  You do not have to be there.  And being at every single court date is a strong indicator that you either have control issues or something worse on the psychological spectrum.  The Judge will know this.  Your spouse's attorney will know this.  And if there is a Guardian Ad Litem appointed to help with a custody decision, he or she will know this.  

 

No. 8 thing NOT TO DO in a custody case. Do not hire a lawyer that holds themselves out to be a "dad's rights" lawyer or a "mom's rights" lawyer.  This is a giant mistake. Unfortunately, divorces are emotional creatures, and many parents are drawn to the marketing power of these lawyers. Radio and TV ads from these lawyers build fear in a parent's mind that without this type of lawyer, custody will be lost.  Not only is this not true, the opposite is true.  Because the Court system follows the child's best interest standard, furthering a mom's interest or dad's interest is actually in contrast to what the law provides.  And guess what, you lost custody before the case started.  The best lawyers are the ones that appear neutral, and yet make your interests seamlessly connected with the child's interests.  This is what I have always called "interest melding" and only this approach is effective.  

 

No. 9 thing NOT TO DO in a custody case.  Do not get a Guardian Ad Litem involved in your custody case, when you should be going to a Custody Evaluator, and vice versa. Guardian Ad Litems (GAL) are simply divorce lawyers that are there to assist the Court in deciding custody.  They do not have clinial psychological training.  If your spouse has psychological issues don't rely that the GAL will be able to flush it out.  Many parents with psychological disorders have amazing impression management skills, meaning they have skill sets that not only mask the disorder, but they appear very likable.  Many parents have hired my office with the GAL not on their side, where me forcing the case to a Custody Evaluator (usually, a clinical psychologist) uncovers the disorder and wallah, my client gets custody.  Same goes the other way:  if you have Custody Evaluator involved in your case, and there are really no psychological issues on the table, but custody may simply be decided on other factors, a GAL may be the better approach (and less expensive).  

 

No. 10 thing NOT TO DO in a custody case.  Do not think that you can enter a custody case without planning a way to pay for it.  Many parents with good custody cases, lose at the end because they simply didn't plan ahead to pay for it.  When your payments fizzle out, many custody lawyers, at least the good ones, will drop the case.  Custody lawyers don't like doing this, but putting together a good custody case (and trial), takes a lot of time and eats up a lot of the attorney's resources.  If you can't pay for it, you will likely lose your case simply because of the financial weight of the attorney's fees involved.  If you want custody, do the following:  (1) decide you want custody (at the beginning of the case); (2) get a great custody lawyer; (3) and get finances to pay for it.

 

If you have additional questions about this topic,

call Paul D. Nordini at (630) 306-6300 or

email at: paul.nordini@divorceinfosite.com