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


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J. Rochelle Cavanagh, Esq., Contributing Author

While no two custody cases are ever the same, there are some general guidelines that hold true for every single case, regardless of the circumstances.

The following is a list of general guidelines I consider crucial for every litigant to follow from day one of their custody case. Some of them may be obvious, but I have seen several cases turn because one party neglected to follow one or more of these rules.

Do not discuss proceedings with your children

If we appear in court, I almost guarantee that a provision prohibiting either party from discussing the legal proceedings or the divorce will be in the very first order issued by the Judge. Throughout these proceedings, you should do your absolute best to isolate your children as much as possible from what is going on. The children should not know when you are going to court, what you are going to court for, what the judge decided, etc.

Obviously, you won’t be able to keep it from your children forever. Whether it is when you or your children’s mother moves out of the home or after some other occurrence, your children may begin to ask questions. In those instances, I recommend clients discuss with their children’s mother how and when you want to tell your children about the separation.

If possible, have this discussion with your children together, and in the context of these discussions do not delve into the details of the divorce (custody schedule, child support, who is keeping the house, etc.). Simply tell your child that you are trying to work it out, and as soon as you know for sure what is going on, you will let them know. These conversations are by no means easy, and can be devastating for both parent and child. There are several good resources on how to talk to kids about divorce or separation, and ask your attorney to recommend some books or pamphlets if you would like.

Do not ask your child who they want to live with

At first glance, asking your children what they want in all of this may seem considerate — as if you are taking their opinions and desires into account. However, courts hate when parents do this. The reasoning is similar to the above: Children should be isolated from these proceedings, and even if they in some way do eventually become involved, they should not be asked to choose sides by their parents.

If you have a contested custody matter, your children will have an attorney appointed for him or her to represent their wishes. Further, even if your children tells you he or she wants to live with you, the probative value of this statement at a hearing or trial is almost worthless for several reasons:

  1. It is hearsay and probably inadmissible.
  2. The court will draw a negative inference from the fact that a party has discussed living arrangements with their children and put them in the position of having to choose sides. To the court, this displays an indifference to the emotional well-being of any children, which can be very problematic.
  3. Even if a child has informed a parent that they want to live with them, the court is not going to consider that as the actual desire of the child. It is not uncommon for children in these situations to express to both parents a desire to live with them. After all, it is likely that a child has great affection for both parents, and until recently, was living with both of them 100 percent of the time. A younger child does not understand that this cannot continue after a divorce, and older children will try to gain favor from each parent by telling them what they want to hear. Your child’s attorney will represent his or her wishes.
  4. Your child does not determine where he or she lives until they are 18 years old. This means even if they say they want to live with you and they truly mean it, and if the court allows it into evidence, a child’s desires is only a consideration for the court when determining custody, not a determining factor. The court has one prevailing concern in child custody cases, and that is the best interest of the child. While a child’s wishes can certainly affect this (more so depending on the age, maturity and judgment of the child), it is not the only consideration.

Get involved

One thing a court will consider when determining custody is who has been the primary caregiver. A large part of this is which parent goes to doctor’s appointments, parent-teacher meetings, concerts or games, etc. It is very difficult to win a custody case when a parent takes the stand and cannot name the child’s teachers, doctors, dentist, friends, etc. If you don’t already — get to know these people.

If you use drugs or drink excessively, stop

This one may seem self-explanatory or even ridiculous to many, but courts absolutely can and will drug test a litigant. They can do it with little to no notice, and they can order a hair follicle test, which goes back several months. Testing positive for a controlled substance or having a urinalysis come back with high alcohol levels can be fatal to a custody case.

Dress appropriately for court appearances

Again, this may seem straight forward and obvious to many, but the appropriate attire for court is formal business dress. Judges can feel that a litigant who shows up in a T-shirt and sweat pants doesn’t respect the court, and this sends the wrong message. Litigants should also consider that a judge will ultimately hear the evidence and determine who can best care for the children — this takes into consideration many factors, including which parent can get the child up for school, get them clean and make sure the child dresses and looks appropriate. When parents do not look clean and appropriate themselves, it is difficult to convince a court they will be sure the children will look clean and appropriate.

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

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