Home » Episode 8: How to Win Your Child Custody Case
A common question from parents starting the divorce process is, ”how do I win my child custody case?” In this episode, Kevin and Pat discuss what “winning” custody really looks like, strategies for preparing and presenting your child custody case, and the mistakes to avoid.
Kevin: I’m Kevin Handy.
Pat: And I’m Pat Cooley.
Kevin: And this is episode eight of the Divorce Rulebook podcast. How to win your child custody case so no other issue in divorce evokes as much passion as custody. And so many divorced couples come into the law firm and their first concern is like how do I win custody? How am I going to get the custody I want? I want to beat the other side. And they’re almost like girding for a fighter at least expecting a big fight for custody. And that’s fairly typical. I find that clients are sort of divided into two camps. One, they expect custody to settle. They think the other parents are a good parent. They’re sort of in the mindset, let’s work it out. Hey, we don’t get along. But I know the kids love the other parent. I want them to spend time with them. Let’s work it out. The other camp is the one I just mentioned that comes in skirting for a fight they want to win at Costa. They’re sort of goal oriented, they want to get control over the kids. They think probably the other parent isn’t a great parent. Perhaps they just want to keep the same life. Maybe they’re a stay home parent. Whatever it is, their goal orient. I want to win at custody. I want to get what I want. Occasionally I will say that does come up where the other parent actually is bad and actually do need to quote when it comes to the other parents using drugs or alcohol, maybe they’re violent and in that case it becomes important. So that’s sort of my view of custody. Do you have any thoughts about any of that?
Pat: Well no, I’m totally in agreement. I mean, there are parents that can work it out. There are parents that sometimes never even need a custody order, but they’re parents that really put their kids first and they don’t have the same degree of anger. I think the parents who want to win, like you said, usually have something motivating them. I feel that when that motivation is anger over something that happened between the parents that winning is going to be tough.
Kevin: Yeah, sometimes clients will fail to separate the issues they have with the other spouse. Maybe the other spouse had an affair or was emotionally absent, and they kind of say, well, my spouse had an affair, therefore they shouldn’t have custody of the kids. Something like that. Something driving the desire to win. In this podcast, we’re going to cover number one, what does winning look like in custody? Number two, strategies for preparing your custody case. Number three, how to best present your custody case to the court. And number four, mistakes to avoid. So let’s start with what does winning look like? I hate the term win. I use it in a title because it’s clickbait, because a lot of people are out there, they think, am I going to win it? But I hate that term because there’s really no winning. And it makes me think of The War of the Roses. Danny DeVito sitting there, he says to his client, I think it was Michael Douglas, he says, There is no winning. It’s only degrees of losing.
Pat: Absolutely. My experience in court, nobody comes out a winner. You may come out on top, you may have won some of the issues, but nobody in custody disputes really wins.
Kevin: Even the best one. No one’s winning now. You’re not seeing your kids for periods of time. The kids are stressful for the kids. Nobody wins in a custody dispute. So given that no one’s going to win in a custody case in the traditional sense, what does winning in a custody case look like? My opinion is it’s having the best outcome for the children. And by that means that the children are going to do the best, they’re going to have the best situation for them.
Pat: Right. I just want to say that’s a really important point, because winning for a lot of people, when you say, what happens when you win? Their reaction is, I get what I want.
Kevin: Right. I have written down I have confirmation bias written down here because people tend to think that whatever they want is best for the children. So they’ll say, well, of course it’s best for the children to be with me all the time because the other parents are jerker. So the listeners should avoid confirmation bias. What you think is good for the children is not necessarily what is best for the children. How do you determine what is best for the children? How do you get a reality check on your desires versus what is truly best for the children?
Pat: Well, that’s very difficult.
Kevin: It is difficult.
Pat: You can, first of all, kind of listen to your lawyer and talk about what courts do, what kind of custody situations or arrangements are made that seem to best suit children. So your lawyer can help you a little bit in that direction.
Kevin: I’m not sure what courts do is necessarily an indicator of what’s best for children.
Pat: Not always, that’s for sure, because it.
Kevin: Depends on the judge. Can they even judge it’s like, well, it’s best for the children to be with the mother and other ones are like it’s best to be 50 50. They may say this stuff too, and then God knows what they’re going to actually do in real life.
Pat: Well, remember, as many people, different people, there are as many different opinions and they are just opinions when it comes to what’s best for children. I mean, let’s talk what are the things with psychologist? You can engage a psychologist to tell you empirically what’s best for the children and after years of research but does that apply to your kids? I don’t know.
Kevin: I think it’s a good place to start though, research. Like maybe if your kids are seeing a psychologist or you are sit down and talk to them. I’ve read books. There’s books about there. Under what circumstances do the children do best? One book came to mind. I wrote down the boy crisis. It’s sort of focused around young boys, but it really applies to all children. And just the book was like the children really need both parents and they need significant time with both parents. And children who are deprived of one parent or the other really don’t do as well, at least according to the statistics.
Kevin: I think it’s important for if you’re getting divorced and you got children, you should read books and really think about what they’re saying and try and keep in check what you want. You may want to have the kids all the time, but is that really best? They really should be with the other parent if there’s nothing significantly wrong with the other parent drugs or alcohol or violence or something like that.
Pat: Even another thing you could consider is looking at are there any children? You know, you think, boy, those kids are great kids, and then maybe look to what their parents did. What do you observe that helped them?
Kevin: Yeah, if you know a child whose parents are divorced and you think, hey, that child is pretty well adjusted, you may want to talk to their parents. And I can almost guarantee that they are amicable. They get along pretty well. They at least put the child first instead of themselves first. They’ll be flexible. I just can’t imagine those sorts of things. It’s very unlikely that those parents are going to be fighting about every little teeny thing.
Pat: Well, my understanding as well from the experts is that what children want is their parents to go back together. Since that’s not going to happen, at the very least, they’ll want their parents to get along. And not getting along is probably the worst nightmare for a child.
Kevin: Yeah. So I have my own notes here about what is the best situation for children and some of it comes from the book I mentioned and other things I’ve read since I’ve been in practice. One is both parents live relatively close to each other and so, like, the children aren’t doing an hour custody exchange drive. And if they’re both parents live close to each other, that means they’re also living close to the kids school activities, friends, I have stayed in the same school district, keep your kids close to their friends, et cetera. Obviously not everyone can do that, but you can. I would say that’s a huge factor.
Pat: Yeah, I’ve heard judges say, don’t make your children spend their lives in a car. So staying close, if you can do it, it’s going to benefit your children.
Kevin: Absolutely. When you present your custody case to the judge, if you have, to the extent you’re facilitating those sorts of circumstances, hey, the child’s going to be the same school. That’s going to go a long way to helping you win. This is just sort of an aside. Probably have that many minutes later. Parents who don’t fight, try to get along, be cordial to the other parent.
Pat: But listen, there’s going to be disagreements that come up. But in intact marriages, you have those disagreements out of the earshot and out of the sight of the children. So when you can’t get along, at least do it outside of the site and earshot of your kids and certainly.
Kevin: Don’T involve the children. Don’t be telling the child to, hey, tell your mother this or tell your father that. Flexibility I’ve written down, look, things come up, birthday parties, play dates and stuff. You want to remain flexible with your custody arrangement. Hey, if the child has an opportunity to go with your ex spouses grandparents on a trip, you should probably let them.
Pat: That’s right. Flexibility is huge. When I have clients that stick to very rigid enforcement of their custody orders, children don’t have schedules that are rigid, so when you try to keep them in a rigid schedule, they lose out. They can’t do things that would have been something special for them to do in their lifetime because a parent is being inflexible. So flexibility is a huge consideration.
Kevin: One of the most common things I see happen with regard to inflexibility is, hey, a child is on a sports team, they’re on the soccer team or the football team. The other parent won’t let them go to games on their time. Yeah, it’s tragic. Now, on the other hand, you shouldn’t be signing your children up for sports without some sort of agreement with the other party.
Pat: Right. You got to be wary of overloading the schedules because, remember, they’ve already gotten the custody exchange as a new thing in their schedule. But I mean, most courts will support at least one activity per season.
Kevin: Absolutely. Those are our views in terms of sort of what a winning custody case looks like. How do you win? You make the situation best for the children. Just one other thing I noted was just that, and I think you mentioned this before is that the children are not uncomfortable when the parents are near each other the last thing you want is a child who is anxious when his or her parents are in the same room because the child thinks that a fight might blow up in front of other people.
Kevin: Pat mentioned, hey, you’re going to be living with this you’re meeting with this other parent for basically the rest of your life.
Pat: That’s right. It doesn’t end at 18. You’re going to have graduations, college, weddings, holidays forever.
Kevin: Yeah. You’re going to have to deal with the other parent. And there’s nothing worse than not being able to be in the same room as the other parent. And frankly, it’s a good thing when you’re able to be in our own family. I know some of our family members have been divorced, and it’s the best one. Hey, you know what? Their ex comes to our parties and stuff and gets along. That’s the best type of situation you can have in these unfortunate situations. So we’re going to take a break, but when we come back, we’re going to talk about the strategies that you can use to prepare your case. So it’s the best case possible to put on in front of a judge.
Pat: Hey, podcast listeners, are you thinking about divorce but are worried about the cost and animosity associated with the traditional divorce process? Well, Snap Divorce has a better way for you to divorce. Through divorce mediation. Snap Divorce eliminates everything bad about traditional divorce. With Snap Divorce, there is no court, no dueling lawyers, and no endless delays. Our experienced attorney mediators help you and your spouse resolve your divorce fairly easily and amicably. Best of all, Snap Divorce does it for a reasonable flat fee. Schedule your free consultation firstname.lastname@example.org.
Kevin: Okay, we’re back. We’re not going to talk about how do you prepare your case. If you can’t resolve your case, you’re going to have to put your case on in front of a judge, and someone’s going to have to make a decision in the case. So how do you best present your case to the judge? One thing I just want to note, the first custody arrangement in a case is probably the most important because it becomes a status quo. And from there on out, I find it difficult to change the custody arrangement. So with the first custody being, hey, you have every other weekend, it’s difficult to come back from that.
Pat: That’s right. It kind of goes hand in hand with the word stability. Judges are not quick to change schedules. Once they’ve been put in place, they will do it. It’s not to say they won’t do it, but it’s work. You definitely have to work to get a schedule changed once you’ve put something in as a status quo.
Kevin: Right. So you want to spend the most time, most effort establishing the first custody schedule. You’re going to have to live with that to some extent, probably for the rest of your custody case. Or if you want more time you’re going to be fighting against that.
Pat: Yeah. It’s really important before when you’re meeting with your attorney that you’ve thought about and outlined what you think is the ideal custody schedule and then work towards that.
Kevin: All right, so let’s talk about strategy and preparing your case. You need to first think about putting on a coherent story, like a theory of the case. Can you sum up what you think the best custody arrangement should be in one or two sentences? Like why you think it should be like that. If you think you should have primary custody. Why? What’s your theory of the case? Do you thoughts about that?
Pat: Well, yeah, it might be he’s worked, I’ve been a stay at home parent, or she’s worked, I’ve been a stay at home parent. So it makes sense for me to continue in that role. Or we’ve both been very active and involved in activities for the children. So that might be the focus of your case, the dual involvement? If you’re pushing for a more equal.
Kevin: Cost at a time yeah, and more difficult cases, it can be, hey, the other parent uses drugs and isn’t a good influence or something like that. And stability, hey, this is the way we’ve done it before, and it goes along with what you were saying. Why change what was working? We’ve done this for a whole marriage. I was a stay at home parent or my spouse travels, or whatever it is. Stability. These are some of the kind of typical fears of the case. Then you have to focus your theory around why is your proposal in the best interest of the children? I think that’s where a lot of people get lost. They forget about the best interests of the children, part of it, and it’s more like, why is it best for me?
Pat: Sure. They’re thinking about their schedules. You think about you’re a parent, you’ll work, you’ve got activities. So what’s best for you is around your work schedule, around your activities. So you’re kind of thinking of yourself. But really what you should be doing is thinking, what can I do? What schedule would work best for the children?
Kevin: Right. What’s the history of caring for the children? How will you keep their life the same? Maybe you’re going to be living in the same school district. How will you encourage visits with the other parent? How are you going to foster that relationship? That goes a long way. Judges will buy into that. They want to see that you’re going to foster the relationship with the other parent, not thwart it. Right.
Pat: You may already be doing that. You may already be saying, hey, I took them over to see their other grandparents do it voluntarily. Show the judge that you mean it.
Kevin: Yeah, I have, like, how parents schedules indicate the outcome of the case. It kind of goes back to stability or what people were doing in the past. A lot of times it’s just people’s work schedules and travel schedules and whatnot will dictate what the custody schedule should be.
Pat: Even more so when the parents are both capable, fit parents, and you’re really just looking to maximize the time with both parents and the schedules become very important.
Kevin: I have keep it focused. When you’re developing your coherent story or your theory of the case, keep it focused to one or two points. It’s not good to take a shotgun approach of like, here’s every single thing that’s bad about the other person, and here’s every single thing about why I’m great. And that is a lot of times what you see in custody is that sort of shotgun approach. You throw everything at the wall and hope it sticks.
Pat: Absolutely. Your strategy should be, why is this the best schedule for the kids? Why does this schedule work the best for my spouse and our particular schedules? And it shouldn’t be necessarily how your strategy shouldn’t be. I’m going to show how bad the other parent is. I’ve been in cases where judges will say to a parent, testifying on the stand, can you say something good? What’s the nicest thing you can say about your spouse? And I’m telling you, it’s amazing. Some people struggle. They sit there dumb, they say nothing, they can’t say anything. So you got to think about that. You should be thinking not you’re going to destroy the other person, but rather you’re going to build yourself up and why your schedule and your proposal works for the children. For the children, yeah.
Kevin: So once you’ve got your theory of the case and say, hey, here’s my theory, I should have six out of every 14 days in a two week period because I can drive the kids to their football games and I can get them to school and the other parents traveling, whatever it is. Once you’ve got your theory of the case down, the next thing you need to do is gather your evidence. You need evidence to support your theory.
Pat: And you know, Kevin, that’s a tough one because very good at the get go. Your evidence is primarily what your clients going to say and what the other parent is going to say. So you start there. But finding evidence is important, perhaps easier in cases. For example, when there’s drug issues where you can ask for a drug evaluation, mental health issues, you can ask for a psychological evaluation.
Kevin: But the vast majority of custody cases are just going to be the two parents testifying. And that is evidence, but it’s not the best evidence. It’s obviously biased. And I had just found that most custody cases are just parents complaining about one another. If you’re thinking about coming in to court, just being like, oh, he did this, he did that, he didn’t do this or she did that, the judge is just going to tune out.
Pat: That’s right. If your theory of the case is stability, then you’re going to be presenting things like school records, look how good they’re doing in school, or what activities are they enrolled in. They’re already in these activities. If they we don’t want to disrupt them. Things like that. You want to be looking for things like that and not yeah, the shotgun.
Kevin: Complaining about the other parent. It doesn’t work because one, it’s impossible for the judge to tell what’s true and what’s not. You got just two people complaining about each other and they’re just going to tune out, frankly. The other thing is, a lot of people times people focus on the minutiae or things that happened in the past. He never washed the dishes for years. Or even things that are somewhat relevant, like, oh, you know, he’s been smoking pot after work for the last three years. Well, why does it matter now when you’ve been letting it happen for three years?
Kevin: If it’s something obviously something serious, but sort of just complaining, it’s not going to really work to the extent you can. And like Pat said, it’s very difficult. You want succinct, actual proof to support your theory of the case I have down here, if you can get it, which is not always, you want documentation, pictures, recordings. You got to be careful. You can’t just tape record someone. But I have a ring doorbell camera. I had a case where my client had a ring doorbell camera and the father would show up, like, blasting, like, really nasty music that was clearly meant to intimidate my client. And she had it all on her doorbell camera and it was submitted to the court.
Pat: Just a word of warning on recordings, if you have something like ring doorbell and it’s caught something, or I had a client who has surveillance cameras, and that came in useful because the person was doing stuff on the property and coming around at night, lurking around, so that can be helpful. But I’ve had other clients in exchanges of custody, each holding up their cell phones and recording the other parent and arguing in front of the kids. So we’re not talking about making your own recordings, but kind of the kind of recordings that are right in the.
Kevin: General course of business, but not something that’s staged exactly. Calendars, diaries, emails, and of course, text messages, which really is the big one of recent text messages in difficult cases. You mentioned this before, it could be drug tests, pictures of drug paraphernalia all over the floor. Maybe someone’s house is in disarray prior court records or arrests. So all that stuff is like that is good evidence if it supports what you’re trying to prove.
Pat: Just two comments. Another good source. Sometimes this is to show bad character, but Facebook publications can affect custody and pictures. There’s nothing like the old adage, a picture tells a thousand words. If you have pictures to show the judge. I’ve had people put together little books of like here we are sitting on the porch. Here we are out playing ball. Here we are a nice little to show the judge that you really are an active involved parent. Pictures are great.
Kevin: Absolutely. You don’t want to throw in everything plus the kitchen things. Think you got to really focus. What supports your theory of the case? Again, being this is in the best interest of children. You don’t want to just throw in things that upset you or mad you. And we mentioned this before, like my spouse is having an affair has a paramount the judge really they’re not going to care about that because unless the paranoia is a drug addict, they’re not going to care. You may care, but the judge doesn’t care. It’s going to affect the children somehow.
Pat: That’s right. Courts do not dictate morality. They don’t want to really want to hear what’s wrong between you and your spouse. They’ll say, we know there’s something wrong because you’re not together anymore. But if it doesn’t directly impact the children, that’s what they’re looking for. How does it affect the children
Kevin: So the next note I have is it’s not really evidence, but I have it in here is get the judge to like you and dislike the other person. I hate to say that, but you know, perception is reality. If you want to gain an advantage, you want to be a very likable person. And you mentioned just like, hey, if you show pictures of you taking care of the kids and if you’re pleasant in court, polite, if you can have documents showing that you are flexible in custody exchanges like, oh yeah, sure, I’ll let you have an extra Saturday. And you mentioned another podcast. Always being reasonable, always being cordial to your other spouse. It not only helps sell your case, it can help you win in court because you’re going to have text messages likely to come in or emails. And if you’re always being polite, the judge is going to form an oppression of you. Whereas if your spouse is they’re cursing and being rude and being inflexible, the judge is not going to start to dislike the other parent and they’re going to like you and it’s going to affect their decision. Don’t you think that’s true?
Pat: Absolutely. It really makes a difference. And that advice goes in the vice versa. I mean, watch what you put in writing. Obviously you’re saying that. You’re saying be respectful, be kind, but remember that if you’re not then the other side will do that to you. They’re going to put that right before the judge. If your emails or texts or communications are improper, let’s say no matter how.
Kevin: Many times we tell people this, they fail to do it. Another piece of evidence is expert custody valuation. Maybe have a custody evaluation and that comes in and that’s always good. That’s good proof. Judges love being able to rest a decision on some kind of expert because it may be obvious, but I don’t know. Judges hate to decide custody cases. They hate it. They don’t want to hear them. They don’t make a decision because they don’t want to play Solomon. It’s like an impossible situation. You don’t know who to believe.
Kevin: You don’t want to have a bad outcome for the children.
Pat: Right? Sure. Before the judges is very limited to a limited period of time. You go in, you have your hearing, you testify, you can only get so much on. They only have so much patience and they’ll only hear so much. Whereas if you do these evaluations, the evaluator spends a little bit more time. There won’t be a five minute questioning in chambers with your child. Your child can actually talk to an evaluator, can be seen by the evaluator.
Kevin: And it’s helpful too, because we mentioned this earlier, is that you want to make sure you’re not suffering from confirmation bias in terms of what’s best for the children, what the children want. And so sometimes if you get an evaluation, the children will be honest with the evaluator.
Kevin: And if you take that to heart and listen, you may be able to resolve your case and do what is in the best interest of your children. So custody evaluations can be good. They can also be very expensive. So not everyone can afford to do a custody evaluation. Next to one I have another good form of evidence is witnesses. It’s usually pretty tough to get witnesses in custody cases. People first of all, they hate coming in court, but they really hate coming to court for custody case.
Pat: Right. Nobody really likes to take sides for the most part. And the other thing I’ll say is a lot of people want to bring in all their family members. Well, there’s a natural bias, which I think the courts can weed that out. But the other thing is, the courts I want to see five or six or seven family members that are all going to say the exact same thing he’s a great parent, she’s a great parent. We saw her raising the kids. So maybe pick some choice witnesses, but limit it. You don’t need ten people to say the same thing.
Kevin: Yeah, I think the best kind of witnesses or maybe it’s like the child care center director that could testify that the one parent is always half an hour late for pickup or is always screaming obscenities or something like that. Some sort of neutral third party witness that can testify to something very specific and factual. I saw this happen, as opposed to like, mother’s a good parent or father’s a good parent. That’s not going to go very far. So then you should really refrain from trying to have your kids testify. Judges hate having kids testify, and usually they end up not saying what you expect. I’ve had clients in the past. I’ll put my children on, they’re going to tell you they don’t want to be with whatever father or mother they’re going to say. They want to be with me all the time. And the kid gets up there and says, I want 50 50.
Pat: Yeah, I can’t really backfire on you because you never really quite know what they’re going to say until they say it. I mean, I had a case where I was sure this kid doesn’t want to be with the dad, he wants to live with the mom. He’s going to say all of this and we get back in chambers and all of a sudden, yeah, I like both my parents. I like living with both my parents, and they’re both fine. They both help me with my homework. And I’m thinking I was like, Here it goes down the drain. And then all of a sudden he said something like, well, he did kick the cat one time, and the judge happened to be fond of cats, and that was the beyond end of that person’s custody. But it was a close call. And as I said, it’s always a risk putting a child on the stand or in chambers to tell the judge something, because they can change their mind at the drop of a hat, and they tend to tell their parents what they want to hear. So when they’re with you, they might say, mom, we want to stay with you. And when they go to dad, they might say, dad, of course we want to stay here.
Pat: It’s a definite risk.
Kevin: I talked to earlier about that. You have to make the judge like you. You start putting your child on, the judge is going to start to dislike you a little bit. So be very wary about putting children. And usually if you have a customs evaluation, as you talked before, the psychologist or whoever is going to talk to the children, and that way you can read the report, see what the child says, you have a pretty good idea, and then that can come into evidence that way rather than having the child testify. All right, so that’s what I have for strategy. Do you have anything else you can think of?
Pat: No, I think that’s the best and everything with a grain of salt, for instance, on the kids, I mean, there are occasions, and I’ll say that they’re rare when it does become necessary or important to have a judge here from a child, but just be aware of the risks. And it’s usually better if the child is older and has specific reasons why they want to live with a parent. And those reasons can’t be because they bought me a car or they give me money. The judge is looking for reasons like, well, dad married somebody else and that person had five kids and I can’t do my homework because they’re running around that they have to have reasonable evasive for their preferences.
Kevin: Right. All right, let’s take a break here, and when we come back, I’m going to talk about how to best present your case in court.
Pat: Hey, podcast listeners, are you thinking about divorce but are worried about the cost and animosity associated with the traditional divorce process? Well, Snap Divorce has a better way for you to divorce. Through divorce mediation, snap Divorce eliminates everything bad about traditional divorce. With Snap Divorce, there is no court, no dueling lawyers, and no endless delays. Our experienced attorney mediators help you and your spouse resolve your divorce fairly easily and amicably. Best of all, Snap Divorce does it for a reasonable flat fee. Schedule your free consultation email@example.com.
Kevin: Okay, we’re back. Now you’ve got your theory of the case, you’ve got your evidence. What is the best way to actually present your case to the judge in court? I have down lawyer to present a custody case in court. You really need a lawyer to make it a good presentation. I think it’s critical. It is very difficult to put on a custody case yourself.
Pat: Yes. I have to agree. It’s very important. I mean, lawyers learn not only what evidence to put in, but also how to read judges, and I think that’s really important too. And if you’re a lay person coming in and you’re just trying to tell the judge something about your case, if the judge has to tell you how to do things and who to question and not to give a speech, you know you’re going to lose the judge, their attention and their focus.
Kevin: Yeah. I can’t think of any time that I’ve ever seen any normal person come in and put on a good case by themselves. What happens is someone come in without a lawyer, they get up on the stand, they start rambling. If the other guy is a lawyer, there’s like an objection within 30 seconds, and the judge sustains it. The person has no idea what’s going on, and it just throws them off. And then they start talking about the same thing again. Objection. It just devolves. And then the judge starts getting within like three minutes. The judge is frustrated with the person. It just goes terrible.
Pat: The other nightmare is when the other spouse is testifying and you as the litigant is questioning your spouse. And it never is like a question that lawyer would ask. It’s a challenge. It’s an argument. And the judge will intervene and say, you’re not here to argue. You’re not here to tell your case. Do you have a question to ask? So again, you’re going to lose the judge, and you also might reveal to the judge a part of your character that would have best been left out of the case.
Kevin: Yeah, it just never goes well. If you’re going to put on a custody case, if you’ve gotten that far where you’re in court and you’re going to be having a trial, you better have a lawyer. The lawyer is going to ask you questions that are going to elicit admissible answers. So the lawyer is going to be very careful what they ask you, and they’re going to ask you them in a manner that will hopefully tell a story in a comprehensive way.
Pat: Also, if you say something that maybe it wasn’t the best for you, they’re going to help you rehabilitate yourself. Like, we can ask questions and bring it back into focus. If you go skew from the story.
Kevin: Presenting your case, we mentioned this before you have a coherent theory of the case. Again, you don’t want to be rambling on about everything that happened from the beginning of time until now. You really want to focus on what are the issues at hand, okay, what’s going on now in the case, what’s in the best interest of the children? And here are the specific facts that relate to that. Be prepared for cross examination. When you’re meeting with your lawyer and looking at case yourself, you have to be honest about your cases. Shortcomings. The thing that comes to mind is sort of, again, mentioned earlier, the text messages you’ll have clients bring to us. Text messages. Look what my spouse said. Look at this nasty text message. You show up in court, and then the spouse presents the rest of the text message that you didn’t turn over, which is as bad if not worse. So you have to be honest about your case circumstance or the one I always think about is that my client was like, oh, my husband, he’s using drugs. He’s on cocaine. Okay? So we showed up in custody court. We asked for a drug test. The judge orders both parties get tested, and they both come back positive for cocaine.
Pat: Right? That’s the interesting thing about that court. That was a specific jurisdiction here. They sent you right across the street from the hearing.
Pat: Say you weren’t prepared. Our client wasn’t prepared. Who also happened to be under the influence.
Kevin: Yes. And if you have a lawyer like we just suggested, you should be going over this. You should kind of be prepared for what the other lawyer is going to ask you. And it leads into the next one is be pleasant during cross examination. This is where most people, they can put on a good case on direct, they can tell their story, they can answer lawyers questions. But then when the other lawyer gets up and starts asking me questions, it’s where they fall apart. It’s where they become nasty, defensive, won’t answer the questions. This is the most important part of the trial. Again, you have to remain pleasant. Answer the lawyers questions. Do you have anything to add there?
Pat: Yeah, I mean, answer their questions, but answer only their questions. Keep it as minimal as possible in a polite and reasonable way. In other words, you don’t want to give them too much information. Don’t be defensive, don’t be evasive. Answer the question. Yeah.
Kevin: Nothing will frustrate the judge faster again and make them dislike you if you’re being invasive or nasty or whatever. And just trust your lawyer. Object that there’s some objectional question that’s asked, and they can ask a lot of things that’s unpleasant that you don’t want to talk about, and you’re just going to have to answer the questions.
Pat: That’s right.
Kevin: Finally, I have a proposed custody order with very specific terms. So ideally, at the conclusion of your case, you should propose a custody or say like, hey, I think hopefully you got a lawyer. Your lawyer is presenting, say, hey, we think that the custody schedule should be this, and I’m handing up a proposed order for your honor to consider. And it’s got all the details, and it makes the life easier for the judge. Do you have anything else to add to how to present your case to the court?
Pat: No, I think we’ve pretty well covered it. It’s a difficult thing. Evidence in custody is scarce. It’s pretty much going to rely on you open honesty with your lawyer. One thing I’ll ask people is after they tell me their story, I’ll say, now, what is your spouse going to say about you? Tell me everything bad that’s in there. Give me your skeleton so that we can be prepared.
Kevin: That’s a good thought exercise to sit down and say like, okay, if I was my spouse or the other parent, what would they be saying about me? And list everything. And then again, you got to be prepared for cross examination to answer those questions and defend yourself.
Pat: Tell your lawyer everything, even if it’s something that doesn’t make you look great so that your lawyer is prepared to deal with it if it comes up in the hearing. But that’s about it being open and honest and keeping to a structure.
Kevin: All right, let’s move on. What are the key mistakes to avoid in a custody trial or custody matter? Number one, I have avoid being nasty. And this is just basically the opposite of what we said before, is be kind, be reasonable, be courteous to your spouse. Avoid being nasty. Avoid being asked in court, in documents, in public, really anywhere, emails, Facebook.
Pat: Don’t post things about your spouse.
Kevin: Your custody case will go downhill if you’re the one on the video of the ring doorbell camera, like giving a finger or mooning the camera. Right. Stuff happens. You’re the one that’s like using the F bomb in text messages. Every other word the judge is not going to like.
Pat: You got to tell a little war story here. One of our attorneys had a client who’s the opposing party because he was angry about paying support, posed the kid on Facebook, covered with dollar bills a picture of the child, and I’ll tell you what really adversely affected his custody case. Yeah, don’t do stuff like that. It’s just not worth it.
Kevin: Judges are human. And if you go back to what I said earlier, you are going to make or break your case. If the judge likes you or dislikes you, it’s really a huge part of the case. So you don’t want the judge to not like you. The next one, this is along the same lines. I say be polite to everyone. That includes just so that includes your spouse, includes a court staff, includes the other attorney. You need to keep yourself in check. Be on your best behavior at all times. I mentioned don’t bring in evidence that can hurt you as well. Again, this is just circling back to what we said before. Don’t bring in the text message where your spouse is something nasty, but you also say something nasty, right. Or don’t ask for the drug test if you’re on drugs, but you get the gist.
Pat: Yeah. And aside to that, if you were doing drugs, stop. And if you are writing nasty text messages, don’t.
Kevin: Right. The next one is don’t give the impression you want the other parent out of the children’s lives unless the person actually really is some psychopath or violent.
Pat: No, absolutely. You want to convey to the court that you recognize the other parent is important as well in the children’s lives.
Kevin: Even if you don’t believe it, right? Yeah, even if you don’t believe, look, unless there’s something serious wrong with the other parents, they are an important part of the child’s life. The child is going to love them. You’re not going to be serving the child, doing the child any good by trying to exclude the person. You may feel like that, but at least for custody, pretend that you don’t. We mention before, don’t not have a proposal for a custody schedule. Be prepared to answer questions about potential changes and the judge may ask you, what if we did this? Or what if we did that?
Pat: It doesn’t fare well if you go in and you’re just like, whatever, you have to know what you want in custody. Don’t be unsure, all right?
Kevin: Don’t act up when the other parent is testifying. That’s always a fun one. Sorry, I’m laughing. Just think of it happens so often that one parent is up there test sign, and the other parent is sitting at council’s desk making faces, groaning or making noises.
Pat: Let me introduce you for just a minute. It is so hard when they’re saying something that’s just so outrageous. It is really hard. And I’m going to tell you as an attorney, I rolled my eyes once and I got yelled at by the judge. So they’re watching you. Remember that they are. They’re just watching you. So don’t make faces, don’t roll your eyes. And if you want to say something to your attorney, write it on a piece of paper.
Kevin: It’s so hard to behave a good percentage of custody cases, the other party will be up there saying something you think is totally outrageous and it’s really hard to sit still and not but you got to do it because then the judge gets upset with you and yells at you or your attorney. So you have to don’t make faces, don’t make noises, don’t make comments under your breath. Finally, I have not dressing for success look. Appearance counts. It does. You come in looking sloppy and dirty clothes and looking like a bomb. They’re going to think you’re a bomb. The judge is going to have an impression of you. Judge, these are professional people. They’ve gone to law school. They usually come to work in suits and robes and stuff like that. Dress for success, right?
Pat: We tell people to dress for the part. I remember my old law firm that I worked for, there was an attorney who kept a couple of pairs of stockings in her drawer because she’d have people show up and they just would look horrible, and she would give them, say, go change, or here’s a pair of documents, put this on. It really makes a difference how you present to the court.
Kevin: The court is looking like, who’s going to be a good parent? Who’s going to raise your children well? And if you look like a slob, they’re going to think you’re a slob. You’re a terrible parent. It’s human instinct. You could say the best things in the world, but if you look terrible, the judge is going to be a visceral reaction.
Pat: Definitely visual images make a difference. And we had a client years ago, happened to be a woman we represented, and the husband was fairly wealthy, lived down in Florida, and he’d show up in court for custody. He’d be dressed to the tees with his three piece suit looking like a million dollars. But when he came to support, he’d have a polyester pants on that were like flood pants up a few inches off his ankles and looked like a bomb. So he knew. And we’re telling you, image matters.
Kevin: It does. All right. That’s all I have for the key mistakes of what you have. Anything else?
Pat: Yeah, that sounds good.
Kevin: All right. So I think that wraps up this episode of The Divorce Rulebook podcast. I’m Kevin.
Pat: And I’m Pat.
Kevin: And thank you for listening to this episode of the Divorce Rulebook Podcast.