Unfortunately, it happens. Sometimes parents are unable to agree upon where their children should primarily reside (or which parent their children should live with) when they have separated or have filed for divorce. Sometimes, both sides feel that their children should primarily reside with themselves and that they are the “better” parent. When there is no agreement and the issue of custody/parenting time cannot be settled, litigation ensues. Custody litigation is an emotional process for all involved. How could it not be? It involves your children. But custody litigation is a complicated process. As a matrimonial attorney, I have handled many custody matters and have witnessed other litigants unknowingly make critical mistakes that affect the outcome of their cases. This is my attempt to help those on what NOT to do in a custody battle:
a) DON’T REPRESENT YOURSELF: It is indisputable that custody litigation is complex and costly. Some litigants opt to represent themselves to save money or because they believe they cannot afford an attorney. Self-representation can have disastrous results, especially in a custody battle. There are too many legal nuances that you will not know. You may think you are able to effectively represent yourself, but I strongly recommend that you retain counsel, preferably counsel who has significant experience in trying (and settling) custody matters. You are too emotionally involved and you will not know the procedural or substantive legal issues that are intertwined in every custody matter.
b) DON’T LIE: I have seen parents embellish facts and sometimes lie outright in an attempt to bolster their positions in a custody matter. It always backfires. My advice is simple: Do not lie to the Court. Do not lie to the custody expert. Do not lie to your attorney. If your lie is discovered (and it usually is), your credibility will be forever impacted. You may not be able to repair your credibility in the eyes of the Court. The judge will remember the fabrication, and you better believe the opposing party’s attorney will remind the Court too. Similarly, do not lie to yourself. Are you seeking custody for the wrong reasons? What do you truly believe is in your child’s best interest? Be honest.
c) DON’T VIOLATE ORDERS: The judge always remembers the litigant who violates their order. If the judge is the ultimate trier of your matter, why plant any bad or negative seeds about you or your conduct with them? Do not engage in self-help. Breaching the terms of a binding and enforceable order will only reflect poorly upon you, and the judge will take this into consideration.
d) DON’T KEEP SILENT: If you do not understand the process, ask questions. It sounds simple enough but I often find litigants keep to themselves when they shouldn’t. They bottle up their emotions, become riddled with unnecessary anxiety or let themselves wallow in stress. Instead, they should be talking it out and asking the appropriate questions can help them resolve those concerns. As I always say to my clients, your children need healthy parents, and that includes mentally healthy. Do not be scared to ask questions. You are entitled to answers.
e) DON’T COACH YOUR CHILDREN: .Custody evaluations with forensic experts are commonplace in a custody battle. Each party will have an opportunity to meet with the custody expert to provide their insight and their opinion as to their family dynamic and the reasons for why they find themselves in that position. Children are involved in this process at this point, and often meet with the expert alone, and sometimes with each parent in the presence of the expert. In many states, the Court might also interview the children. I have seen litigants try to prepare their children for either the Court interview or the appointment with the expert. It is one thing to explain to a child that they are going to meet with the expert so they are aware of what to expect and are not scared. But I have seen the opposite extreme: when a parent attempts to fill the child’s head with talking points, including prompting them to speak about all the “bad things mommy (or daddy) did.” Firstly, a litigant should never speak poorly or disparage the other parent to their child. This has a negative consequence for the child. Furthermore, coaching a child on what to say to an expert is obvious and transparent. An expert (and eventually, the Court) will know when a child has been told what to say. Do not do it.
By Ashley Tate Cooper – Family Law Attorney