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Zen And The Art Of Litigating Child Custody

The best strategy to win the fight may be not to fight.

There is a semi-famous quote attributed to Buddha that basically says:

Holding on to anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned.

As an attorney who handles custody and visitation cases for a living, I can tell you that nothing will sink your case faster than poorly managed anger toward the other parent. Keep in mind that I am referencing “poorly managed” anger here. If you are divorcing, chances are you probably harbor some anger at the other parent. This is natural, and for the most part, courts are aware of this and even expect it somewhat. That being said, courts expect parents to set their anger aside when it comes to issues involving children.

Anger toward the other parent can impact custody and visitation in a number of ways. Sometimes parents will unreasonably deny the other parent contact with the child or attempt to place restrictions on contact when none are warranted. (For example, in some cases this may involve a parent insisting on “supervised” visitation when it is not warranted.) In other cases, a parent may denigrate or say negative things about the other parent to the child. This can negatively influence the child’s perception of the other parent and lead to a number of problems. (Sometimes this phenomenon can be referred to as Parental Alienation Syndrome.)

Ultimately, the essence of a custody case is that a judge is trying to make a decision about how each parent is capable of meeting a child’s needs. The problem with clients that cannot properly manage their anger is that they tend to make the case about their ex’s shortcomings, rather than about how he or she can meet the child’s needs. When this happens, the judge will end up with a very negative perception of your co-parenting ability. As you can imagine, given the priority that the law places the ability of each parent to “cooperate in and resolve disputes…affecting the child” – a judge’s negative perception in this regard can be bad news for your case. Further, if your focus is on demonstrating your spouse’s shortcomings, rather than the positive aspects of your parenting, a judge could question your ability to meet your child’s basic day-to-day needs.

To give you a sense of how this dynamic can play out in a case, I am going to give you a snippet of testimony provided in actual custody cases. (I’ve changed names and paraphrased the testimony to protect client confidentiality). In the testimony below, each parent is answering the question “Tell me about a typical day in which you are caring for your child.” Pretend that you are the judge. It is your job to be objective, fair, and determine what parent should have primary physical custody of the child. This is the first time you are hearing about this family and the issues in their case.

Parent 1:       Usually Johnny will wake up around 6:30 or so. So I will get him up and fix him breakfast. Most mornings I will make him cereal or oatmeal, but I’ve really been trying to have him eat more oatmeal lately, because I think it is healthier. I also like to put fruit in his oatmeal, and I think Johnny likes it. He’s really enjoyed cut-up bananas and strawberries recently.

If it is a weekend, we will usually relax until later in the morning. I like to have at least one playdate or other activity scheduled on the weekend. Johnny has a number of friends that go to his preschool who live in our neighborhood, so I try to set up playdates with the other parents pretty regularly. We also will go to the pool or the playground just about every weekend.

If it is a weekday, I will drop him off at preschool usually around 9:00. We have a really good preschool near our home that Johnny really enjoys. Like I said, he has a number of friends there. The teachers are also very good at educational activities, which I like. So far Johnny has learned all of his letters, colors and numbers up to 20. They are even teaching him a little Spanish. I also try to help him with this at home, and the teachers are very good about communicating what they are doing at school so Johnny and I can work on things at home.

Usually I will pick him up from daycare around 5:00. At that point we will go home and make dinner. Like most children, if he had his way, he would pretty much eat only chicken nuggets, but I do try to mix in other foods too. Like I said earlier, he really likes strawberries lately, but I’ve also been trying to get him to eat broccoli, and he’s been coming around…

Parent 2:       During my days, I will pick Johnny up from preschool. I generally feed him dinner. Then we will watch TV together, or read books together. Things have been more difficult lately because ‘Parent 1’ has been trying to keep me from seeing Johnny. He has also started using inappropriate language, and I know ‘Parent 1′ uses it around him. I also know that ‘Parent 1’ has been saying negative things about me to Johnny, because he will ask me “Why is ‘Parent 1’ mad at you? ‘Parent 1′ always says you are trying to take me away.” So these are the kind of problems I have been dealing with since all of this started. I think that many of the problems Johnny is having now are because of ‘Parent 1’

What conclusions have you drawn? If this is the only information you are provided and you had to make a decision (and remember, judges only receive a very limited amount of information at trial) – which parent would you choose?

Obviously, Parent 1 was able to give a much better picture of a typical day with the child. In reading Parent 1’s testimony, you get the sense that this parent is very tuned in to the child’s needs. The level of detail about Parent 1’s day with the child makes it clear that this parent is on top of things and knows exactly what is going on with the child.

Parent 2, on the other hand, glosses over the details. This parent starts off addressing the question, but quickly launches into a diatribe about the other parent. Parent 2 may be very attuned to the needs of the child, but based on this testimony – how are we supposed to know that? The one thing that is clear is that Parent 2 is upset with the other parent. If this anger is what comes to mind first for this parent when asked about a typical day – what does that say about willingness to co-parent with the other parent?

The point of this exercise is to give you a glimpse into what judges look for when they hear custody cases – both positive and negative. Judges are looking for parents who are involved with their children, understand their needs, and are capable of meeting them. However judges are also on the lookout for parents with an axe to grind. Having one can be a red flag for the judge who will ultimately be deciding your case.


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