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Avoid Losing Child Custody in Divorce


What should I do to maximize my position regarding child custody in a divorce action?

That is a frequently asked question and there are some programs for you to best position your case if there is a contest custody dispute.

Some pointers to realize are when you are in a contested custody situation or anticipate there is going to be a contest custody dispute to follow and those are as follows:

1. Have you been the primary caretaker?  Typically one parent is the most responsible for the basic needs of a child in a relationship.  That can be defined as the “primary caretaker”.  In other words, who is the parent most involved in the child’s daily life, including doing their homework, feeding the child, bathing the child, reading to the child, taking the child to school and picking the child up, taking the child to the doctor, etc.    Those parents who are more involved can sometimes be considered the primary caretaker and that given them an advantage in a custody trial.

2. Are you involved in the child’s extracurricular activities and school activities?  That is an important detail. Question yourself if you are involved in their extracurricular by taking them to practice or by going to their games.  Question whether or not you are taking them to the doctor and if you know the names of the doctors and dentists. Question whether or not you know the names of the school teachers and the names of the coaches for their extracurricular activities.  If you can answer affirmatively to these different areas, then the court is more inclined to follow the belief that you are the primary caretaker as the court many times wants to maintain a status quo or stability in the environment of the child.  If you have no involvement in the children’s education or extracurricular then the court is going to question and you may end up with a visitation schedule that may be limited to alternating weekends.  If you are not involved, get involved.  In the end, that will help significantly in your position of the case but it will also help the relationship with the child or children.

3. Is there a question regarding the parental fitness?  What is meant by this is there a substance abuse issue or an alcohol issue that the once spouse will say that the other spouse spends their extra time away from work drinking or having a substance abuse problem.  Judges take these issues of substance abuse extremely seriously and they can impose random drug testing or ask for psychological evaluations that will involve interviews with various witnesses.

4. Have there been issues of domestic violence?  The statute makes it clear that if there is a domestic violence restraining order against the spouse that creates a rebuttable presumption that it would not be in the child’s best interest to award custody to the parent that is perpetrating the domestic violence.  If in fact there is domestic violence and you have a restraining order against you, you need to follow the requirements to overcome the presumption and that includes among other things to attend batterer’s or anger management classes.  The code also talks about other factors but it is important to recognize that a domestic violence issues is very serious as it relates to all aspects of your case including custody.

5. If not a domestic violence, physical confrontations create problems.  Physical
confrontations between the parties/spouses, regardless of whether or not the physical confrontations result in domestic violence is extremely detrimental to the children and especially if they are present.  If there are problem of anger issues, it is important to maintain composure and truly act as an adult by walking away from the confrontation. The end result can be significant.

6. Do you have a paper trail that could be used against you?  A paper trial is any type of hard copy of written communication between you and other spouse.  If you have text messages or emails where you are disparaging or denigrating the other parent, you can rest assured that the other attorney representation that spouse will mark those as an exhibit and will have those, or at least attempt to have those, admitted into evidence if that attorney can lay the proper foundation.  If there is an email where the dialog between the parents has nothing to do with the benefit of the child (if it is condescending or disparaging) the judges look very suspicious on such conduct because they believe that kind of conduct may carry over to the treatment of that parent when alone with that child and that is never good parenting.

7. Is there any disparagement with the other parent?  Judges look favorably when parents promote their relationship with the other parent.  A parent who  constantly puts the other parent down is disfavored.  That negative attitude about the other parent does not win you points with the judge when that judges has to consider which parent to place the child.  In essence, you need to show the fact that as a parent you recognize the importance of the other parents relationship with the child.

8. Is there anything positive to say about the other parent?  A common question asked by psychotherapists, psychologists appointed by the court to make recommendations of custody pertains to whether or not there is anything positive that can be said about the other parent as a person and as a parent.  If you cannot answer that question in some affirmative fashion, the court shall not look favorably on you as a parent. Remember, the dynamics involving the parenting of a child with a separate home is incredible intense.  The dynamics involved in the relationships between the beginning of the relationship and the time when there is the separation creates an automatic conflict and it is important to remove yourself from completely being negative and contemplate the components of the other parent’s relationship.  A parent that can only say about the other parent that they “love their child” is a parent that may not be able to maintain custody.

9. Should I maintain composure?  It is critical to maintain good judgment and
self-control if you want to prevail in custody.  If you cannot show the judge that you have good judgment and that you can teach your child the difference between right and wrong, the difference in disobeying and obeying laws and rules, the ability to teach a child the priorities of respect, the ability to teach a child to be a functioning citizen, you will have problems being awarded custody of a child.  There are occasions at a trial when the emotions are at their maximum, where on cross-examination a parent becomes outrages and loses his/her composure on the witness stand.  Those outbursts on the witness stand and while under the microscope of a judge have significant results and the consequences are dire.  Remember that the judge is observing you as a witness.  That judge does not know you, will never know you again and is only looking at you for the first time while you are on a witness stand, placed under oath.    The scrutiny while you are under cross-examination carries great weight to a judge when that judge in the limited fashion that that judge has to determine custody is asked to make a decision.  If he/she finds that a spouse cannot control themselves in a courtroom, how is that person supposed to control themselves outside in the real world when they have to teach their child the rights and
wrongs of life?

Following your attorney’s advice will maximize your position in the case.  There is a maxim that says the essence of law is logic because logic is based upon reasonable people because reasonable people do reasonable things.  Remember that most of the things that happen in a courtroom are the same types of things that happen in life.  It is a microcosm of your life.  With that said, if you think through a fact pattern logically, you are doing the same thing a judge will do.  The only difference is the judge is thinking and analyzing from a logical standpoint and that judge is applying the laws the affect the fact pattern.  Much of what the law is predicated is logic.  Therefore, when you attorney give you advice, try to follow that advice and if you do, you will maximize your possibilities of obtaining the expectations you are after.


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