August 2008 - How to Win Custody
Lots of parents want to know how they can “win” custody. First
of all, no one wins in a custody case, especially not the child. The best custody
arrangement is one that takes the child’s needs into consideration and
creates a plan that allows the child to have a lot of time with both parents
through a non-hectic, reasonable schedule. That being said, there can sometimes
be a lot of dissent over who should be the residential parent (the parent the
child spends the most time with) and you will want to make sure your point of
view is heard and understood by the court.
If you are in a position were you are trying to convince the court that your
child should live with you, you should know that the court will make this decision
based upon what is in the best interest of the child. What you or your ex wants
doesn’t matter – what will work best for your child is the primary
consideration. The court looks at all of the circumstances involved in the case.
Mothers do not have an edge over fathers. Sexual orientation does not matter.
The court will look at everything involved that impacts the child, including
the past parenting history, the parents’ schedules, living arrangements,
the child’s abilities and needs, child care arrangements, and anything
else that affects the child.
What You Can Do
First and foremost it is important that you are honest throughout the case.
Lies are usually caught. Your job is to show the court why you are more equipped
to have your child live with you. This means showcasing what’s great about
your situation and also making clear what the problems are with the other parent’s
situation. It does not mean you should do a hatchet job on the other parent.
However, you do need to gather evidence that will let the court see what your
concerns are about the other parent.
How to Gather Evidence
Custody cases turn on evidence. It is not enough to testify and tell the court
what a bad parent your ex is. The court needs to see proof of this. One of the
best ways to gather evidence is to keep a journal. Describe situations with
the other parent that concern you. Document how much time you each spend with
your child. Write down information about times your child returns to you dirty,
hungry, tired, injured or otherwise unhappy. Keep track of all the activities
you do with your child yourself. Document visitation disputes or times your
child is returned to you late. Make a list of the daily things you do to keep
your child healthy and happy. Gather together photos you can present to the
court which depict your child with you.
If you are considering audio or video taping your spouse without his or her
consent, talk with your attorney to find out what the laws are regarding this
in your state. In some states it is permissible, but not in others. Answering
machine or voicemail messages are acceptable because the person knows he is
Your word alone is not enough. You should find family, friends, neighbors, teachers,
doctors and anyone else with personal knowledge about your family who can testify
about what a great job you do and what the problems are with your ex. Remember
that witnesses can only testify about information they have learned firsthand.
For example, your neighbor can testify about seeing your ex hit your son, but
she cannot testify about it if you only told her about it and she did not see
it happen. Teachers and doctors likely will need to be subpoenaed, so talk to
your attorney (if you don’t have one, talk to the court clerk about how
to get a subpoena issued). They can offer information about the child’s
special needs and abilities, as well as about which parent has been primarily
involved at school or medical appointments.
Your Child’s Opinion
Your child’s opinion about custody matters, but is not decisive. In most
cases, a Law Guardian or Guardian ad litem will be appointed to represent your
child and find out what his point of view is. Your child may be interviewed
by the judge in private as well. Don’t coach your child or tell him what
to say. Do not make promises to him or offer him rewards if he tells the judge
or guardian he wants to live with you. It is almost guaranteed he will share
this deal with the judge or guardian.
When you are in the midst of a big fight over where your child should live,
it can be tempting to try to limit the other parent’s visitation or time
with your child as a way to strike back or insert some distance. This is a very
bad idea. Interference with visitation is custodial interference and can be
grounds for a complete reversal of custody. A good custodial parent is one who
supports and encourages visitation. Children need both parents and a parent
who sees and understands that will gain a lot of points with the court.
Keep Things in Perspective
Although you hope the judge will see things your way, a custody case should
not be a fight to the death. Once it’s over, you and your ex will have
to continue to see and talk to each other so that you can parent together. Your
child will always be your child no matter how the schedule is arranged. You
need to be able to accept whatever the decision is and move forward to a place
where you can parent together.