An Attorney’s Guide to Child Custody Battles: Part II


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J. Rochelle Cavanagh, Esq., Contributing Author

All custody cases are different; however, there are some general rules everyone should follow — regardless of their circumstances.

This list of general guidelines is vital for anyone going through a custody battle. Some may seem self-evident, but you would be surprised how many cases take a turn for the worst because one or more of these rules are ignored.

Write and speak to you child’s mother as though you are being watched and recorded

You very well may be! In New York, you can legally record someone without their knowledge so long as you are a party to the conversation. Meaning, if you child’s mother calls you, she can record you. She might even try to bait you into saying something inflammatory to her by pushing your buttons.

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Making even a small mistake can be severely detrimental to your custody battle. Avoid trash-talking your spouse in the presence of your children.

Emails, text messages or Facebook messages are even worse, because they can easily be saved and recalled. Courts will carefully consider which parent has the ability to foster and support a relationship with the child and the other parent. If your child’s mother has a stack of emails where you are calling her terrible names or a phone recording where you are threatening her, it becomes very difficult to convince the court that you will be able to effectively co-parent your child together. Keep all your communications with her civil and act as if the judge is listening at all times.

Keep social media to an absolute minimum

If possible, don’t use it at all during your case. The first thing I do when I get a new case is go on Facebook and search the opposing party. I cannot tell you how many custody cases have been won or lost due to things parties have written on Facebook, Instagram, Twitter, etc. Even things that seem harmless on their face can be detrimental.

Do not talk about your soon-to-be ex with your child, or let anyone else do so

In New York, the single biggest inquiry courts make when determining primary custody is which parent will facilitate a healthy relationship between the child and the non-custodial parent. In the view of the courts, it is in the best interest of children to have a healthy and loving relationship with both parents. If a party is trash talking the other parent to the child, this exhibits to the court that the name-calling parent does not have the capacity to facilitate such a relationship. Further, it is detrimental to the child’s emotional well-being.

Whatever has happened between you and your child’s mother, they are still your child’s “mom” and your child most likely still has a great deal of love and affection for them. When kids hear one parents bashing the other, it is the child — not the spouse — who will ultimately suffer. While most courts will impose an order right away prohibiting either party from “disparaging” or talking badly about their spouse to their children (or allowing any third party to do so), I ask my client’s to take it even further and  refrain from talking about their soon-to-be ex with  any children altogether.

Do not grill your children over your spouse’s activities

Another thing that courts detest is when children report to their attorney or a psychologist that their visitation with a parent is spent getting an inquiry about what is going on with the other parent. For example: “Does your mom have a new boyfriend?” “What time is she making you go to bed?” “Is she letting you play violent video games?”

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It is best to keep all communications civil, since many states only require single-party consent on recordings.

Your parenting time with your child should be about you and your child, and your bonding time with them. When the focus is continuously brought back to mom, it is disrupting to your own bond. Further, this makes kids incredibly uncomfortable, and if they are subjected to this type of questioning every time they are with a parent, it can affect how much time your child wants to spend with you.

If you have concerns about the way your child’s mother is handling her parenting responsibilities, that is something we can discuss, investigate and bring to the court’s attention in other ways. Also, please note this rule extends not only to you, but to anyone else your child comes in contact with in your presence. I see this most with litigant’s mothers/children’s grandmothers. It doesn’t matter to the court if you are not the one disparaging the child’s mother directly — you are responsible for making sure you bring your kids around people who will respect this rule.

Keep in mind all the other ways kids can see or hear you talk about their mother. If they can overhear it when you are on the phone or they can see it on Facebook, you are still in violation of this rule.

Most importantly, attorneys hate surprises

I understand that there may be things that have happened during your marriage or even after the breakup that you may not necessarily be proud of; however, I have to know about these things before we go into court or a settlement conference. I can ready myself for almost any argument, but I can’t do it if I do not have all of the facts in front of me. So please be honest and upfront with me if there is any issue you think will be brought up by your child’s mother during these proceedings, so you and I can discuss how best to handle it before I am standing in front of a judge.

These rules should be taken into careful consideration by anyone who may be going through a custody battle. While you may skim over some that you feel aren’t applicable or are too obvious to merit much attention, one wrong move can severely hamper your chance at winning custody. It’s better to be safe than sorry.

Editor’s Note: This is the conclusion of a two-part series discussing general guidelines you should follow while going through a custody battle.

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