A divorce is challenging under the best set of circumstances and if you cannot negotiate or mediate a reasonable outcome to your divorce, then life becomes more difficult as you must enter the world of litigation. Divorce litigation is always stressful; however, when children are involved, your circumstance becomes even more challenging.
Contested child custody matters are the most legally and emotionally difficult matters to be dealt with in family law. They certainly are the most difficult to resolve – costly, contentious and complex since being an active participant in your children’s lives is irreplaceable. That is why litigating the custody of your children is so important to be performed correctly.
While you may be overwhelmed and feel that you cannot present the best custody case possible, there are strategies that you can employ before and during the child custody litigation to present your matter in the best light possible.
If you find that you and the other parent cannot settle your child custody case outside of the courtroom (for whatever reason), a judge will be the one to determine your future relationship with your children. A judge’s number one priority in a contested child custody case is to determine what is ultimately in the best interest of the children going forward. Accordingly, your number one priority is to show the judge that you are a loving, responsible, and stable parent that will provide a safe and supportive home for your children. While that probably sounds intuitively simple, it is much more difficult when you are going through the anguish of a divorce. However, if you are thoughtful and well-prepared, you can present your best side during this very difficult time.
While all suggestions do not apply to every situation, below is a list of general suggestions and tips to present the best child custody case possible. Before implementing these concepts, you should hire an experienced family law attorney and discuss these tips with your attorney.
Show Your Involvement and Responsibility to Your Children
If your child custody litigation is contentious (which it most likely is or you would not be in court), you must demonstrate to the judge that are a fit parent and that you will continue be a fit parent after the trial ends. While your past parenting missteps will certainly be highlighted to the judge by the other parent during litigation, the judge’s focus will be on your present and future parenting abilities. And while you cannot change any of your past behaviors, you can begin immediately to position yourself as a responsible and engaged parent from this point forward.
Preferably, you will have done this long before your child custody case reached the courtroom, but since you cannot change the facts from the past, all you can do is move forward.
It will not be easy. You will certainly be struggling with feelings of anger, betrayal, and loss after separating or divorcing from your partner. If your goal is to be an equal or primary parent, it is critical for you to work through these emotions right now, (with the help of a therapist), but as far as the court is concerned, you must also be able to set aside your own personal struggles to demonstrate that you will be the best parent to your children. Consider the following to show your level of engagement and responsibility to your children:
- Spend as much time as you can with your child(ren)
Utilize every moment of your parenting time to show that you want to spend time with your children. If you miss custodial time, you have missed an opportunity to shine and you may come off to a judge as an uninvolved or distracted parent. Whenever possible, avoid leaving your child with family or in daycare late — unless it is unavoidable.
- Be dependable to your children
Children thrive when they have stability and predictability. Have the everyday things your children need to stay at your home (i.e. appropriate food, clothing, medications, toys, etc.). Pick your children up on time for visits, travel, therapist sessions, medical appointments, school, and sports practices. Return your children on time too. Show everyone involved in the litigation process that you are a responsible and reliable parent.
- Be flexible when life gets in the way
Did you get a call from school saying that your child is sick and needs to go home? Do not call the other parent and ask him/her to go get the child. Do not tell the child to tough it out. Make sure you respond appropriately.Does the soccer coach require an extra weekend practice this weekend? Don’t miss the extra practice, get the child there on time. Whenever possible, rearrange your own schedule to accommodate your children’s lives. This will demonstrate to a judge that you have the flexibility, interest and desire to deal with life’s unplanned events — a skill all good parents have.
- Maintain a clear personal and driving history
While this should go without saying, during child custody litigation you need to avoid doing anything that will present as a major character flaw like an arrest or distracted driving. Moreover, when your children are in the car, make sure they wear their seat belts and use appropriate car seats whenever necessary.Even small things like speeding tickets will be used against you by the other parent in court. Ideally you never want to get a speeding ticket, or other ticket, at any time; however, you certainly do not want to get one while your children are in the car with you while you are embroiled in child custody litigation. Therefore, keep your criminal and driving records spotless, even if that means being lowkey and driving in the slow lane.
- Maintain detailed notes of your time with your children (only upon the express advice of your attorney)
The point of litigation is to prove your point of view to the court. You will want to be able to show a judge that you are a responsible parent, so it may be extraordinarily helpful for you to keep regular notes on activities you do with your children. You should include things like what you did, who was present, any problems, any successes, any concerns, etc. It will also be helpful to note every time you pay or receive child support or pay other expenses for the benefit of your children. If you are required to pay child support, make every payment on time. If you are receiving child support, document every time a payment is missed or late.Most importantly, and because you are involved in a litigated process, you will be required to produce appropriate documents relevant to your child custody matter that are requested by the other side in an official process called discovery. While I will address the general discovery process in another article, it is important to understand that if you maintain records or notes as indicated above, and upon the express advice of your attorney, you may not have to produce these records during the discovery process. This is a complicated area of the law, so it is imperative that you discuss this issue with your attorney.
Create an Appropriate Environment for Your Child to Thrive
The judge in your child custody case will want to see that you can offer your child a safe and supportive environment. Conversely, the other parent may try to seek advantage for his/her case by accusing you of creating an inappropriate environment for your children. Thus, you should do everything in your power not to give the other parent anything that he/she can use against you — no matter how silly it may seem at the time. Remember, child custody litigation is an artificial environment, but it is this artificial environment that will determine how you are to spend many years of your life. Consider the following:
- Scrutinize your immediate circle of friends and extended family
Do not allow anyone around your child who can be viewed as dangerous, irresponsible or a general bad influence. Clearly, this includes anyone with felony or sexual-related offenses, (I didn’t just say convictions) drug users, alcoholics, or drug dealers. Even if your cousin was convicted of a drug crime twenty (20) years ago, it is better to ask her to give you some space during your child custody litigation.It is also a bad idea to invite a sexual partner to live with you or stay overnight while your children stay with you. Often, this will upset your children and make them feel as if they are less important to you. Moreover, this situation can also cause drama with the other parent and that other parent may use this circumstance as an opportunity to manufacture strife between you and the child(ren). Please note, if you have been separated for a while (at least a year or more), it may be more reasonable to introduce your children to a new long-term partner in your life; however, you should only do this by consulting your attorney and a child specialist first.
- Keep your home safe and secure
If you have young children, ensure that your home is appropriately childproofed. Have a home monitoring system installed. If you need help childproofing, there are local services that can help. If you have weapons in the house, especially handguns, keep them locked away, out of sight and unloaded. Frankly during child custody litigation, it may be better to keep weapons out of the house altogether unless you are required to have weapons for your job.Remember, a fit parent knows that danger for your children lurks everywhere. Young children can think packets of laundry detergent look like candy, and older children may be curious about trying the alcohol or prescription medicine you keep in the house. Be aware of these things and keep such items under control, out of sight and out of reach. And while it should go without saying, never have illegal drugs in your home — especially when your children are present.
- Keep your house clean
A little clutter in a house is often expected (especially with children around), but always remember that you are being scrutinized by the court. You need to make sure your home is neat, clean and organized – especially considering that a custody evaluator (addressed in another article) may make an unannounced inspection. Make sure your home is a sanitary safe, and comfortable place to live. When in doubt, hire a professional cleaning service to help you get your house under control and use that service to maintain your home throughout the litigation. In my recommended links section, I provide you some suggested area house cleaners.
- Do not host, or attend, inappropriate gatherings
Be careful about whom you invite to your home and what you do with guests while in the home. Leaving your children alone for hours while you spend quality time with your new boyfriend or girlfriend is never going to be viewed as appropriate by a judge. Neither is letting anyone wander through your house or letting friends-of-friends crash on your couch. During child custody litigation, having large parties, especially where alcohol and drugs are present is a bad idea and taking on new roommates that will share space with your children is equally bad. Remember, your children are absorbing everything they see and hear, but worse, they are likely going to share those experiences with the other parent, custody evaluator, school friends, or the court – even if you told them not to do so.
- Sexual inappropriateness
No matter how innocent your intentions, even the slightest appearance of impropriety can be used against you in child custody litigation. Do not do anything that can be interpreted as sexually inappropriate, such as letting your children sleep in your bed on a regular basis, see you watching adult-themed movies, bathing with your children, or being naked around your children. A court will never accept that these behaviors are ever appropriate and if the other parent finds out about these behaviors (and they will) they will use it against you in court.
- Inappropriate outings
If you have adult interests, participate in them when you do not have time scheduled with your children (that also does not mean to leave your children at home alone, during your parenting time or with a babysitter so you can go out). Do not bring your children to dive bars, inappropriate concerts, or R rated movies just because that is what you like to do. Do these activities on your own time while your children are in the care of the other parent (but remember that the other parent could have a private investigator surveilling you to try and demonstrate that you live a troublesome lifestyle).
- Appropriate babysitters
During child custody litigation, your use of babysitters should be limited, but if you must utilize a babysitter or nanny, ensure that you hire only experienced, qualified babysitters. Perform a full background check (and save the written report for use in court) or use an agency. Provide the other parent with the name and contact information of the caregiver if you are asked. Do not leave your children with anyone who would not pass a background check (i.e. anyone with a criminal record, who uses drugs, etc.) even if it is a family member.
- No physical punishments
Even if you have spanked your child for bad behavior in the past, this needs to stop during the child custody litigation. Do not engage in any physical punishment of your children at this time as it will most often be viewed negatively by the court (yes appropriate corporal punishment may be legal, but it is generally frowned upon by the courts). You should also avoid berating, or harshly criticizing, your children no matter how angry you are. Remember, as difficult as things are for you right now, your children are going through one of the most difficult times of their lives. Perceived emotional abuse by a parent is often viewed as badly by the court as physical abuse.
Demonstrate Your Overall Parenting Skill to the Court
When you go to trial, you will be afforded the opportunity to put evidence (like pictures and videos) before the judge and call witnesses at trial to attest to your “good” parenting skills. However, to have such evidence to present at trial, the evidence must exist (and have been shared during the discovery process) and you need to have people who can testify as to your excellent parenting history and they need to have seen many examples of it. Accordingly, it is best to have showcased your parenting skills as much as possible before you set foot in a courtroom. To do that, consider the following:
- Get to know the adults if your children’s lives
School is an ideal place to start. Meet with your children’s teachers at school; attend Parent-Teacher conferences; go to Back-to-School Nights; email teachers throughout the year with questions or concerns. Also, regularly attend your children’s sporting events, school activities (including practice and rehearsals), religious activities, and the neighborhood parties. Allow other adults in your children’s lives see you being an involved parent. These adults may be the ones to serve as your witnesses at trial (or serve as witnesses for the other parent if they have only seen the other parent involved).Work actively with your attorney to develop a list of reliable and trustworthy witnesses. It will be key for you to find people like a child’s teacher, coach, minister, rabbi, or someone else in a professional position, that can support your desired goals. Always make sure you have their correct contact information and stay in touch, but do not tell these individuals that you want their information, so you can call them at trial – witnesses never “want” to testify. However, they “will” testify if they are properly subpoenaed by your attorney.
- Do not fight in public with the other parent — or with your children
It is never a good idea to openly fight with the other parent or your children. Do your best not to lose your temper in public or show emotionally volatility. While it is certainly understandable that you may be feeling emotional during this difficult time of your life, you must learn to control these emotions and avoid unleashing them at the wrong times. Moreover, you must be especially mindful from allowing emotional outbursts to occur in public. Instead of unleashing your feelings to the world, rely upon your close friends, family members, or a therapist to work through your emotions in a constructive manner.
- Take the high road and do not speak poorly about the other parent
Though you will be tempted to speak ill of the other parent – do not do it. Avoid criticizing the other parent, their new romantic interest, or their family in public, on social media, or in front of your children.
Preparing for Your Day in Court
As your trial approaches, you need to work more closely than ever with your divorce attorney to present your best case. To achieve this, consider the following:
- Always tell your attorney everything — EVERYTHING
Your first and most important litigation strategy is to be completely honest with your divorce attorney at all times. This means telling him/her if you have ever made any personal/parenting mistakes. While it may be tempting not to admit to these flaws (especially if you are embarrassed by them) you can bet that the other parent will have no problem bringing up your prior bad behavior. Telling your attorney everything means that he/she can plan and prepare for it, neutralize it, or add useful context to the situation. Avoiding disclosures to your attorney will only harm your child custody case, your children and your chances of getting the custody arrangement you desire.
- Never put your children in a difficult position – even if the other parent is doing so
In most cases, your children will not testify at trial. Moreover, it will not likely work out well for you if you ask your children with whom they would rather live or if you do anything to try and convince your children that they should ask to live with you. Frankly, coercing children in such a manner may actually harm your child custody case. (Remember what I said at the beginning of this article, a child custody case is not about what your children want, instead it is about what a judge thinks is in their best interest.)
- Show empathy for the situation that your children are now facing
As much as you want custody of your children, you must be able to demonstrate that you care more about their best interests than you care about your own. A child custody case is about what a child needs – not what you need. Demonstrate to the judge that you care about their needs first and about giving them the best life possible.
- Never lie to the court
Every parent wants to be the best parent possible to their children; however, every parent makes parenting mistakes and every parent has different parenting styles and goals. But no matter how tempting it may be to make your story a little better, do not lie to the court. Generally, the court will figure out that you are lying and hold it against you.For example, if you let your young child watch an R movie or you received a speeding ticket while she was in the car, admit that it happened, admit that you made a mistake, and let everyone know that it will not happen again. The court understands that people make mistakes, it just wants to know that a parent will forever try to avoid making those mistakes again. Conversely, if you lie about these events to the court, and the other parent presents a witness to contradict you later, you look worse than if you had answered truthfully and provided some context or insight to the situation.
- If this is not the first determination of custody — focus on what has changed since the last custody order was implemented
If you are litigating to change your existing custody arrangement, then you need to focus on what has changed since that original custody determination. If the other parent has shown negligent behavior, you obtained a new home in a great school district, or you can now offer a more stable environment for your children than the other parent, explain these facts to the court. Do not focus your case on why the prior custody determination was incorrect, instead showcase how different your situation is now and how much your children would benefit from your proposed change in custody.
The key in all of this is to be the best parent you can be to your children. While these tips are meant to help you succeed in obtaining your goals during child custody litigation, if you review these tips once again, you may notice that each one of them are also hallmarks of good parenting — whether there is pending litigation or not. Your children will always do better when they receive the best parenting possible — no matter what the custodial arrangement may be.
Of course, every child custody case is different, and your best strategy will be tailored to your unique situation. Consider consulting with an experienced divorce attorney as early as possible in the process to receive personalized and strategic advice on how to prepare to present your custody case. If I can be of assistance, please do not hesitate to call.