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9 Mistakes That Will Hurt Your Custody Case


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By Jan Grossman, Esq.

In our experience, these are typical of the kinds of mistakes that our clients make in custody cases. When clients come to us, we assist them in dealing with the stressful interactions with their ex during litigation.

Here are nine things you can do that will hurt your chances for winning custody of your child.

1. Forgetting who’s most important.

In a custody battle no matter how angry, hurt, or frustrated you get, you need to remember that this isn’t about you. It’s about your children. When you present your custody case to the judge, that judge will always be thinking, “Is this best for the children involved?” The judge’s responsibility is to try to make sure that their decisions are fair to everyone, but to a good judge the most important people in a custody or divorce argument are the children.There are different guidelines in each state that help a judge determine what to do in a custody situation, but in addition to those guidelines, each judge will be looking at the evidence and testimony from both sides that answer his or her questions about the following:
  • Who provides the most emotional and moral support to the children
  • Who takes care of the children at home
  • Who’s in charge of their education, at home and at school
  • Whether one parent has a history of alcohol or drug use
  • Whether domestic violence is involved
  • Whether one household is safer for the children than the other

2. Not keeping track of every interaction

Because the judge is going to rely on evidence as well as testimony, you need to keep track of anything and everything that could relate to their decision on custody. That means making notes of what happens when a child is at the other parent’s home, or times that your ex doesn’t pick up the children as agreed. It’s particularly important to write down anything that your child tells you about things that made them unhappy or uncomfortable when they were with the other parent. But make sure they’re telling the truth – even the most honest child may react to the negative emotions involved in a divorce, and try to influence one parent against the other.You may not be able to record any telephone conversations, but you can save text messages. This is very important if those text messages contain threats or complaints. Save all of the e-mails and texts that you get from your ex, and from your children, if they’re talking about things that could be tied to the custody decision. Save any handwritten notes or letters, and keep the envelopes if they came in the mail. The envelopes will show the date they were sent, and if you’re trying to prove a pattern of abuse or threats, you’ll need to have things in order by date, if possible.Keep in mind that your ex will probably also be doing the same thing, and that leads to the third mistake, one that’s very hard to avoid sometimes.

3. Getting mad, and letting it show

No matter how angry, upset, frustrated, or downright furious you are at things that other people say and do – your ex, his new girlfriend, your lawyer, his lawyer, or even your kids – you’ve got to keep your cool. Find ways to vent your emotions that won’t hurt you and your family. Get together with a friend you trust and talk things through; you’ll get a new perspective on the situation, and just talking about what makes you mad will often help you release the anger. If you need to keep everything private, write down all of your emotional reactions in a journal and imagine all of your anger and sadness flowing down into the paper and out of your mind and heart. If you’re alone at home (and don’t have neighbors who will be worried if they hear you!) then go into a quiet room, close the door behind you, and do all of the screaming and shouting you want to move your anger outside of yourself. Cry your heart out in the shower if you need to. Get strength from your church community, from your social groups, and from your family, but don’t try to involve them in the situation. You can even try meditation or exercise to keep you grounded and healthy.It’s very important that you don’t show your anger and frustration to your kids. They need to be able to cope with their own emotions, and they can’t handle yours too. Worse, anything that you say will make them think they have to pick sides. They’ll be unhappy if they feel they have to defend one side or the other, or if they think they’ll get in trouble for wanting to spend time with both parents. This rule goes for anyone else in your family, or your circle of friends, who has a relationship with your children, your ex, or both. Not only do you need to avoid making them feel they have to choose between you, you need to ask them to be careful of what they say in front of the children, whether it’s good or bad. Your mother might be furious at your ex, but your kids don’t need their grandmother telling them how horrible he is. For more ways to protect your children during a divorce, read this article.Whatever you do, don’t lose control in front of anyone who has the power to hurt your case. Have you ever watched a police drama and heard an officer say “anything you say can and will be used against you”? Think about that phrase before you let your anger show.

4. Talking trash instead of talking logically

Whatever you do, don’t say negative things about your ex in front of the judge. You can tell your lawyer about problems, bad habits, threats, disrespect, or any other issue related to your ex that have led to your decision to separate or divorce, but when the case gets to court, all of those things need to be part of the evidence file. If it’s obvious that staying with your ex isn’t a good decision for you or for the children, and especially if you need to show that he’s not a good person for the kids to be living with, all of this needs to be backed up by proof. The judge may very well ask you to explain or give more detail, but unless your lawyer advises you to say negative things about the other person’s case, don’t. And if you do, remember #3 above.The best way to make your case for custody is to show logical reasons why the children are better off living with you, and let the evidence speak for itself when it comes to your ex. Here are some things you can point out (as long as they’re true):
  • You’ve been the one with the primary responsibility for getting the kids to school, making sure they do their homework, helping them with after-school events, and communicating with the teachers and school administrators.
  • The children have always lived in that house or apartment, and moving to a new place would be stressful, especially if they’re younger.
  • Your ex has moved too far away from the kids’ school(s) to make it easy for them to stay in the same school, especially if it’s in the middle of the school year.
  • You make enough money to care for and provide for the children, especially with a fair award of child support.
  • Your family lives close by, your children have a great relationship with your family, and they’re available to help you with child care in an emergency.
  • You have been the “primary caregiver” and the one who has cooked the meals, done the laundry, taken the kids to the doctor and dentist, and in general made sure they’re safe and healthy.
All of those points will make your case for custody, especially if you have evidence that backs them up. On the other hand, spending too much time talking about how awful a person, father, or husband your ex is won’t really impress the judge. Even if your ex has a history of cheating on you, not contributing money to the family, losing his job, drinking too much, lying, or all of the above, unless the judge thinks those things will put your children in harm’s way when they’re spending time with your ex, the judge may not really take them into consideration. However, if you have documents and evidence that show a pattern of these negative behaviors, that is something the judge will read through. The fact that you’ve presented them as facts instead of as an emotional speech will usually make your case stronger.Stick with the facts. Talk about things that have happened, not what you felt about those things.

5. Trying to look perfect

Just as you need to avoid describing your ex as a monster, you need to avoid looking like you’re trying to describe yourself as an angel. We’re all human, and the judge knows it. What’s more, when you try to look too good in front of the judge or custody evaluator (if one is called in), they may start doubting whether you’re telling the whole truth in other situations. If you’re exaggerating the good things, people might think you also tend to exaggerate the bad things.Be honest about the situation. What you and your children are going through is stressful, and that means things aren’t going to always go smoothly at home. Show the judge that you’re staying calm, and that you’re doing everything you can to keep home and school life normal and regular for the kids. If your ex is actually being helpful and supportive towards the children – or even helping you! – then saying so will prove that you’re trying to do what’s best for the kids in the end, and that you’re making them the most important part of the process.Finally, don’t try to speak for the children. Even if you feel they’ll be happier with you, and even if they’ve said so, let the evidence speak for itself. If they’re doing well with you, that will be obvious. If they’re having problems when they’re with your ex, you need to document this (see #2 above) so that’s part of the evidence as well.

6. Asking for too much protection – or not enough

Part of any custody agreement is visitation. Whether you end up sharing custody of the children and they live part-time with each of you, or whether you’re given full custody, the judge will try to make sure that your ex has time with the kids regularly. Usually the only reason for not letting one parent visit with the kids is if there’s a document history of physical or sexual abuse, or the person has a history of criminal behavior and/or violence. Even then, the judge may award supervised visitation – that’s where there’s a third party always with the visiting parent and the children, to keep the children safe. For example, your ex might be able to spend every other Saturday with the kids, but only at your mother’s house, while she’s there. However, unless you have evidence that your ex is a threat to the children or anyone else in the family, it’s generally not a good idea to ask for supervised visits. Let the judge decide if that’s appropriate.On the other hand, if your ex is abusive towards you or the children, do something about it right away. You need to call the police, get help, and make sure every incident is documented. Unfortunately, if your ex has a history of violent behavior but you don’t report it until months or years later, the judge may question whether you’re making things up just to help your custody case now. If your ex hurts one of the children, take the child to the doctor right away and get copies of the medical records. Even if it was an accident – for example, the child fell off the swings while your ex was with the kids at a playground – you will want to have it part of your evidence file.Physical abuse is a crime. Yelling and threats aren’t a crime, though they can cause mental pain and distress. If you or your children are being physically abused, call the National Domestic Violence Hotline at 1-800-799-7233 (1-800-799-SAFE) as soon as possible.

7. Not following the court orders

Even before your custody case is settled, the court will set up a schedule for shared time with the children, unless there is reason to think that they’re in danger. Often this means that the children will be staying with you in the family home during the week, and your ex will be spending every weekend with them, or every other weekend. This might mean that he comes and gets them in the morning and they’re back in the evening, or it might mean that he picks them up on Friday afternoon after school and returns them to your house on Sunday afternoon or evening. The judge will be trying to make sure that the kids’ normal school routine stays the same, while giving each parent enough time with the children.Once this schedule is set, you need to follow it. That means if the kids are scheduled to spend this weekend at his house, you can’t suddenly decide that you want to take them to the zoo on Saturday morning. It also means that anything that you need to put on the kids’ calendar, like a birthday party at a friend’s house, relatives coming into town to visit, or a sports event a child is competing in, must be agreed to by both parents – particularly the parent who is taking care of the children on that day. This might sound hard, but while your custody case is being decided, you need to prove that you’re prioritizing the children in your schedule.And this also means that your children have to stick to the schedule. If they get a last-minute invitation to go to the mall or to the movies, they’ll have to get your ex to agree that they don’t have to visit that day. Make sure this is something that stays between your ex and that child, and don’t try to interfere. On the other hand, make a note of any times that your ex isn’t willing to be flexible and help the kids do what they normally do with their friends. It’s one more piece of evidence for your file.This doesn’t mean that you have to agree to a parenting time schedule that you know won’t work, or isn’t fair to the kids. Before you sign any agreement that sets up the schedule, make sure it really will be the best for the children. Once you sign the agreement, it may be very hard to change the schedule before, or even after, the judge has made a decision for permanent custody.

8. Not keeping track of what’s going on

Speaking of schedules, here’s one more thing you need to add to your already packed calendar: all of the hearings, court dates, filing deadlines, and anything else that requires you to be in court, show up to answer questions, or submit a legal document. If you miss any of these meetings or deadlines, that will be a big negative mark against you. Naturally, if there’s an emergency, the court will be more understanding, but if you know several weeks in advance that you have to be at court at 2:00pm on a specific date, then you need to work with your employer to make sure you have the time off to keep that court date. Unfortunately, this can be one of the hardest things for a working mother to cope with, so if you think you’re going to have problems getting time off in the middle of the work day, explain your situation to the judge and the court officials, and ask to be prioritized for early morning, evening, and weekend slots.You also need to keep track of all of the documents, and all of the things that are being discussed and decided. And you need to understand what’s going on. If you’re not clear about what’s being talked about or why, then you may not get the best results. This is where a good legal adviser can really help. If you don’t have a lawyer, you still need someone who can help you with some of the more complicated aspects of legal documents and filing.

9. Forgetting about the real goal

Remember what we discussed in point #1? The real goal of all of this is to make sure your children get the outcome that’s best for them. Let this thought help you cope with the day-to-day difficulties. Keep calm, keep in control of the situation, and keep looking at the long-term goal: getting custody of your children, and keeping them safe and happy.

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