Women’s emotions about divorce run the gamut. Some feel profound relief at being out, some are in shock and stay numb for chunks of the process, some are elated to start over, some feel terror at the prospect of rebuilding a life from the wreckage of a marriage or significant partnership. Often, women facing divorce feel all of these things, experiencing an emotional rollercoaster as they ride out the Worst Year of their life.
While feelings about divorce and separation fluctuate, in my decade of guiding clients through divorce as a family law attorney, the one universal emotional experience I have witnessed is the fear and grief that come when preparing for a custody battle.
A person fighting for what he or she believes is best for her children brings out a visceral mama (or papa) bear response that is powerful to behold; that power can be an asset when forging through the slog that comes with litigation. However, it can also be a liability for providing children and young adults an emotionally stable safe harbor.
Regardless of how fraught your relationship with your ex, settling your child custody case is always preferable. You love your child. Your ex loves your child. The Judge does not. It is almost universally better for the people who love your child to make decisions about where he/she/they will live, go to school, and spend their time. If you can find a way to make it work so that your children get to spend time with both of you without going through the Family Court system, you should do so.
Sometimes despite best efforts to resolve the issue of child custody between you and your ex-partner, you find yourself staring down the barrel of the gun known as a child custody battle. This post will walk you through how to get ready.
Hiring the right attorney is hands down the number one most important factor when facing a custody battle. Every custody battle has unique aspects, and having an attorney that understands the facets that will complicate yours— be it substance abuse, infidelity, bankruptcy, or anger management— is essential. Part of hiring the right attorney is hiring someone who will be honest with you about the likelihood of achieving your goals in a courtroom. Throughout my career, I have (unfortunately) known family law attorneys who will adopt their client’s position as their own, who will fight blindly to achieve those goals, even if the law is not on their side. This is not the attorney you want to hire. Being promised the sun, the moon, and the stars doesn’t translate to a win— level headed advice and strategy grounded in a sound analysis of the law is what gets results.
It feels validating and just straight up good to hear from an attorney that you are doing everything right and that your ex-partner is the problem. But if you are hearing this from your attorney, you are not getting your money’s worth: There are always problem areas on both sides of a case. If you don’t know yours, how can you fix them?
Hire the lawyer who levels with you, who works with you to clean up your side of the case in addition to pointing out the flaws in your ex-partner’s position. Empowerment is not the same as cheerleading. You need honest feedback and solid strategic thinking to get you the best possible outcome.
In almost every state, the overarching standard for making a child custody determination is what is in the “best interests of the child”. Those magic words…best interest of the child…can mean entirely different things to different judges. Legislatures in the various states realized this and most created lists of factors for the Court to consider when determining the best interest of the child. While each jurisdiction is different, some common factors include:
I recommend that you speak with your attorney early in your case about the local child custody factors and whether or not your jurisdiction has a presumption of joint custody. Know these factors and consider them as you make decisions about your new life. These can be big things— whether you should stay in your child’s school district rather than moving to a new one—- or more minor choices that reflect a willingness to promote your child’s relationship with their other parent, like helping your child buy a Mother’s Day card. Leaning in to smile for a joint photo at the end-of-year school celebration may be excruciating for you, but that picture of your kiddo with both parents will mean a lot to your child, and demonstrates goodwill to the Court.
Cases are won and lost in Discovery, which is the legal term for the process where each party discloses information to each other. Your custody battle hinges on your ability to provide your attorney with documentation of the incidents and circumstances surrounding the custody arrangements you are asking the Court to grant.
Keep track of all of your pertinent documents: Your children’s medical records, receipts showing payment for their extracurricular activities, report cards, notes sent home from school, e-mails, text messages, and social media posts. Turn them over to your lawyer in a neat and organized manner. Do NOT write on the documents. They will speak for themselves.
In addition to documents, keep a journal or log of your ex-partner’s interactions with you and the children. One of my clients kept a journal for years and it was a devastating piece of evidence…a contemporaneous record of what happened. It bolstered her credibility in Court. An opposing party of mine once kept a calendar. On the calendar he marked every time my client was late or my client missed visitation with the children and the reason given. Again, this was a devastating piece of evidence! If you haven’t done so, get yourself a journal (electronic is fine) or calendar and start writing down things as they happen.
Be careful what you put in writing to your ex. Your e-mails and text messages will be used as evidence. Avoid quacking back and forth at each other. Do not call your ex names. You and your ex are now in the business of raising children together. Your texts and e-mails should have a business-like tone.
Watching your words extends to your online presence. As tempting as it is to put your ex on blast on social media, or to Vaguebook his or her various flaws, it is NEVER a good idea. Social media is not for sharing the details of your custody battle, your feelings about your ex, or anything having to do with your separation. Posts can and will be used against you in Court. On top of being potential evidence, social media venting does nothing to promote a good co-parenting relationship.
If you can afford to do so, consider therapy or a divorce coach. I am a believer that every person who is going through a custody battle should be in therapy or working with a divorce coach. Custody battles are emotionally tough…someone other than you is going to make large, important decisions about your children. The incredible angst that comes with knowing your precious children’s futures are in someone else’s hands is nothing short of terrifying. Therapy or coaching helps you process your fears and be more present for your children; a level head and present parent both translate to better outcomes in Court.
More importantly in the context of a custody battle, therapy or coaching is an excellent way to prepare to testify. The circumstances surrounding a break-up (especially if there was domestic violence or trauma) can be difficult to talk about. The parts that affect your children can be even more painful to discuss. I’ve learned that the more a client has processed and talked about their story, the more clearly and coherently they can talk about it in Court. There is a noticeable difference in my clients’ testimony when they have worked with a therapist or coach.
While this article focuses on gearing up for a Court battle, I would be remiss if I didn’t emphasize that there are alternatives to duking it out in front of a judge. Many of the same mechanisms for getting divorced can work for hashing out custody. Don’t be afraid to explore all your options before you head into battle.
Litigation is costly, both financially and emotionally. However, it’s worth the price tag if you’ve exhausted all other options.
©2011-2023 Worthy, Inc. All rights reserved.
Worthy, Inc. operates from 25 West 45th St., 2nd Floor, New York, NY 10036