January 8, 2014

Five Steps to Winning Your Child Custody Case

By Jef Henninger -

There is nothing more serious in family courts than dealing with the custody of children. While every jurisdiction has their own unique set of law on this topic, some basic principles apply to every case. While some states use the terms legal custody and physical custody interchangeably, the focus of this article will be on the physical custody of the children. Furthermore, some jurisdictions will change the procedures if the case involves married and divorced couples versus non-married couples. The tips in this article will apply to either scenario.

1. What is your motivation for winning?

Unfortunately, children are often used as pawns in heated divorced cases between the parents. Before you start off on a huge custody battle, decide what you really want and why you want it. I don’t think enough people really focus on this issue. Is the other parent really that bad? Are you just looking to save money? Your sole focus in any child custody case should be the best interests of the child. In other words, do you think the children would be better off with you or the other parent? Why do you think that? When I ask these questions to my clients in the average custody case, they often don’t have solid answers. Of course, there are more specific cases where the other parent has substance abuse issues or is otherwise a danger to the child.

2. Prepare for battle

Most people are not prepared for a custody battle. Besides not knowing the procedure, its tough to understand the emotional toll that such a battle can take upon you and your family. Furthermore, custody battles also take a huge financial toll on the family as well. Money is like ammunition and while the person with more ammunition doesn’t always win the battle, it does give a huge advantage to the other side. Married couples going through a divorce should be in the same basic financial position. However, parents of either side often get involves in the custody battles since they want to protect not only their child, but their rights to the grand children as well. I have seen too many cases where one side’s parents are rich and the other side’s parents are not. This huge imbalance can seriously impact the case. One way to handle this issue is to recognize it from the beginning. It should come into play in every aspect of the case because you cannot go blow for blow with the other side. You will have to be creative in how and when you deploy money for the case.

With regard to the emotional aspects of the case, you have to be in it for the long haul. In the beginning of the case, everyone is ready to fight. 12 months later, some of that fight may go out the window. Unfortunately, the emotional drain coupled with the financial drain leads some to just throw in the towel. While every case is different, I have seen some clients succeed 12 to 24 months into a case that seemed hopeless from the beginning. Their resolve to see the case through played a big part in the victory.

3. Select the right attorney

This is a fascinating topic as everyone has their own criteria for how to find the best attorney. Simply put, there is no benchmark for determining who is the best. Physical characteristics, location, religion, age, hourly rate, firm association and other random factors will likely not help you. Instead, I suggest you look for an attorney that has demonstrable experience in such cases. An attorney just saying that they have handled these cases doesn’t help. Some attorneys will take anything that walks in the door. Of course, the sheer number of cases handled does not equate to them being a better attorney. How do you get along with this attorney? He or she will be a very important person in your life and you need to establish a good relationship with him or her. Furthermore, you need to make sure that this attorney has a plan to win your case. Most clients that leave their attorney for us, often tell me that their attorney did not seem to have any plan. Without a plan, there is no strategy and in such a case, it will be very difficult to in.

4. Focus on what matters

This is a very emotional issue; there is no getting around that. Clients have a tendency to want to focus more on how bad the other side is as a spouse rather than if they are a good parent. Often times I ask my clients how their complaint about the other side impact their parenting skills. Half the time, there is no impact. If there is no impact, it doesn’t matter.

This is where having a quality attorney really comes into play. Your attorney should be the gate keeper between what you want to say and what actually gets before the court. All too often, attorneys let their clients do whatever they want to do. While the final decision is ultimately up to you, the last thing you want is a yes man (or woman). Trust me when I say that most judges will ignore most of the garbage that you put in there and could even draw a negative inference against you. Likewise, don’t feel the need to go tit for tat with the other side. Just because they don’t have a lawyer that restricts what is in their moving papers, doesn’t mean that you need to match them. Instead, your lawyer can help you formulate a general response to the allegations and then hopefully turn it around on them.

5. Defend against accusations right away

Unfortunately, many people will say anything to gain an advantage in a custody case. False allegations of domestic violence, child abuse and substance abuse are common. Some of these allegations may be overt, such as complaints to police and other agencies, where as other allegations could just be threats or hearsay from third parties. Regardless of how and when these allegations surface, you need to deal with them ASAP.

For example, if there is even a hint that someone will claim that you have a substance abuse problem, you need to speak to your attorney about a substance abuse evaluation. You should also start lining up character witnesses that can testify as to your lack of alcohol and drug use. Don’t assume that you can just deny everything. If you don’t get a substance abuse evaluation and other evidence early, the other side can move for their own evaluation. While we hope that such experts are not hired guns, some are and there is a good chance this evaluation will not come out in your favor.

The same goes for mental health issues. Many people have various mental health issues and they are perfectly fine parents. However, in a custody battle, even minor mental health issues can be blown out of proportion in order to paint you as a crazy person who should not have custody of the child. Thus, a psychological evaluation may be necessary. Don’t assume that your treating doctor can write you a letter. Most of them will not want to be involved since they cannot charge insurance companies for writing such detailed letters. Furthermore, your own doctor may be biased. Thus, you may have to pay out of pocket for your own evaluation but trust me, it’ll be worth it.


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