How Your Custody Case is Different From Other Legal Cases

Disclaimer: I hate the word "Win" when it comes to custody cases. I often tell my clients that if we litigate their custody case, there will be two for-sure winners, and those are the two lawyers involved. This is what we do for a living. When we try custody cases, we are paid--a lot--to do it. Staying out of the courtroom is the only way to win in your custody dispute.

However, I am using the words "win" and "winning" in this discussion of litigated custody cases. It is the way my clients see it. It is the way I see it, too, because I like to prevail in court. But at my core I know that the there are no winners of a custody trial when you're talking about the families.

Here’s the thing you absolutely must remember about a disputed custody case: It is a competition. Sometimes it isn’t whether you are good or bad, it is very purely a competition. It is a determination of who is “best” rather than who is right or who is wrong.   

You must always remember this competitive aspect of these cases. The judge has a lot of leeway. It is part of the judge's job to watch the testimony unfold and to weigh everything and to determine who, in his opinion is the best person to have the primary role in parenting a child.

Let me compare it to other types of cases where the judge may have less discretion in how he rules. In contract cases, for example, it is a matter of  "Did you fulfill your obligations under the contract?"

In criminal cases it is “Did you murder the guy or not?”

In many custody cases, the answers to the essential questions of the case are not so black-and-white.

Think of it as a race of sorts. Parents start out on equal footing—straight out of the starting gate. They often finish in a dead heat, the winner pulling to the front by a nose. I cannot tell you the number of times I have heard judges say, “This is difficult because we have two good parents here…”

Why is it important for you to understand this? Because during the course of your custody dispute you will be tempted to do things that will hurt your case immeasurably because of your emotions. You cannot afford this in ways that do not affect other types of cases. In that contract case we mentioned above, the deeds are done (or not done, as the case may be) and it is up to the court to weigh that effect on the relative obligations of the parrties to the contdract. A show of raw emotion (not unheard of, but uncommon in contract cases) is not too likely to shape the outcome.

In a custody case, however, the wrong show of emotion  or those nasty (tape-recorded) phone calls to your child's other parent can be determinative. In a custody case, there is an evolving picture forming of which the judge will be taking note.

I have had many a client wail, “But, is that enough to cause me to lose custody?” It may not be that your action in that case is “enough” to cause you to be considered a bad or unfit parent; it might, however be enough to make the judge believe that your spouse is the better fit for the job of custodial parent.

Always remember that photo-finish line.

Therefore, you cannot afford to ignore the fact that your actions and your attitudes (as evidenced in your actions) may affect your case far more than in other types of cases and far more than you may be able to realize at the front end.

I once had a client who repeatedly allowed her son to be late for school.

"He's only a few minutes late each time," she said.

This is something I did not expect in this client. I represented her in her previous divorce case in which custody was disputed--we won handily. She is a great mom, this I know. But the other side discovered this tardy situation, subpoenaed the school records and made a big deal out of it. The kid's grades had slipped--probably not because of the tardies, true, but still.... And there are a few other factors which, although none of them would be overly-worrisome alone, when added up, they had a bad, bad cumulative effect; especially where Dad looks so good, as he does in this case.

My heart sank over this. I wished I did not have to deal with this tardy thing, as I believe it was the tipping point, and there is little, if anything, I could do to combat it. The judge saw two good parents out there in front of him, but one good parent can’t get the kid to school on time, and his grades are slipping…where do you think that leads?

I try to emphasize to my clients that this is a competition. You must be the “best” of the two parents in most cases in order to prevail. That is why I tell my clients that they must be as perfect as they can be—more perfect than they have ever been before. It means swallowing their anger and hostility even where lashing out would be warranted.

There is a lot of sacrifice on the part of the parents in maintaining and winning a custody case because it is a race to be designated the “best” from a set of two good people. It may call for a little abstinence on the part of the parents, or pride-swallowing so that true feelings about the other side don't come out around the kid. Where it becomes a contest between two "good" parents, then a parent has to make the case and the strategies of the case priority, subjugating everything else (like sleeping 5 minutes longer) to the goals of the case. Truthfully, it takes a lot of maturity.

Please remember this as you chart your custody case’s course. Please do yourself a favor and be on your very, very best behavior. Please do yourself a favor and do everything you can in the “right” way. You will be judged.

For more information about custody cases, visit our website or amazon.com for the book: The Broken Home Broken Heart Series: A Family Lawyer's Practical Advice for Custody Agreements and Disputes by Cynthia Moody.

Who Are You Dealing With, Here?

My father was an attorney.  I was around the business all my life.  My undergraduate degree was in psychology, so I never intended on following in Dad's footsteps until toward the end of my college career.  About that time it became quite obvious that my early marriage (at 18 in my second year of college) would preclude me from winging off to exotic academia for graduate studies in psychology.

 

Yes, law school was a fall-back plan, borne of the twin elements of necessity and heritage.  It must have been a strong pull because my brother followed my suit, then his daughter after him.  Our sister is one of our capable paralegals.  All three siblings ended up in the biz--and a niece to boot.

 

Happily, fate has a way of working these things out.  I got the best of all worlds in my profession: a good living, a family tradition, and a fascinating study of human nature that is every bit as enriched as that of which any psycholgist can boast.  I believe I have the best ring-side seat to human drama that there is.

 

In fact, in a burst of hubris one day I told a therapist friend of mine, "You have such a cushy job!"  He took afront and said, "Why, on earth, would you say that?"

 

My answer: "Because I do about everything you do, but after my guy leaves I have to file Motions and fight with attorneys and make decisions about his liife, and go to court.  You get to say, 'See you next week'"  He was forced to agree.

 

And the pressure is immense.  The potential for a family law attorney to disappoint is huge. Most of us have so many balls in the air that occasionally one is bound to drop to some extent.  Calls don't get made back in time, results aren't what the client expects--it is hard to please anyone involved in a domestic litigation.  Judges and divorce lawyers often say that if everyone leaves the courtroom somewhat upset, then probably the right thing was done.

 

But, still, I love my work, and I take pride in the fact that it appears to me to be one of the most important jobs on earth.  I call myself a "family lawyer."  What that translates, however, is "divorce lawyer" in the vast majority of cases, and divorce is a big deal to families. 

 

When someone's home shatters, especially a child's, it rends their very hearts.  I feel that the service I give, guiding people through these awful times can make their children's lives a bit more tolerable by my influence in their parents' mess. 

Even clients without children suffer terribly when their marriage ends.  It is my hope that my representation not only protects their legal interests but  makes the process a bit easier on them.

And that's what this blog is about. 

I hope that this blog and my other writings can be a help to those many of us out there who are suffering from family legal troubles.  I don't presume to give you legal advice, per se.  You need your own attorney in your area to do that.  But I have a lot of practical advice and insights that I can share with you. 

 

I hope that you will share, too.  I am interested in your stories, else I would not be typing on this blog.  I hope you will visit my other site, Broken Home Broken Heart and view the resources there and, yes, buy my books! 

 

But most of all, let me hear from you!  c.