6 Rules to “Win” Your Child Custody Case
August 6, 2022 | by J. Scott Milner
The goal of this article is to provide some rules and guidelines to help you not lose your child custody case. Following these guidelines will also have the added bonus of making you a better parent and co-parent, which in the end, should be far more important to you than winning.
You’ll notice right away that I pulled a bit of a bait-and-switch by changing my wording from “winning” to “not losing.” That’s because child custody isn’t about “winning”, and people who think about it that way tend to lose. Child custody suits are about doing what is best for a child. And if you can keep that point in mind, you’re half-way to where you need to be to ultimately prevail.
To help you understand how to not lose your child custody case, I’m going to first go over four very general observations about judges and juries. I’ve made these observations over nearly 20 years trying child custody cases. Why is this important? Because a judge or jury will be the ultimate decider of your case. It’s important to understand what they value, and what they do not. Even as you attempt to settle your child custody case, the strength of your case – and therefore the negotiated result – will be influenced by how those involved in the negotiation believe a judge or jury will view it.
After I outline these 4 general observations, I’ll outline 6 specific rules for not losing your child custody case. These are rules that naturally follow from these observations.
It is important that you follow these rules before, during, and after your child custody case. Your actions long before the case will be examined by the judge or jury. Your actions after the case will be examined in the event the case reopens; which unfortunately, happens often.
Observations About Juries and Judges
Before we get to the specific rules that will help you not lose your child custody case, let’s go through some general observations about judges and juries.
1. They place a high value on cooperation & kindness.
Judges and juries are human beings. And because they are human beings, they tend to make decisions in favor of the person they’re most comfortable with. After twenty years of practicing family law, I can tell you that the people they tend to feel most comfortable with are cooperative and kind.
It is equally important to understand the reverse. People who come across as uncooperative and unkind make judges and juries uncomfortable. They are less likely to side with these people in their decisions. This concept seems obvious for some, but it is difficult to accept for others. The latter believe judges and juries should ignore what they consider personality traits and rule solely based on objective facts. But this is not human nature, and therefore not reality.
To understand why judges and juries tend to side with those they are most comfortable with in child custody cases, it is important to understand that judges and juries take their job very seriously. They take it so seriously they consciously or unconsciously ask themselves “if this were my child, who would I place him or her with?” With this in mind, it should not surprise you that they typically favor the person they’re most comfortable with.
It is also particularly important to judges that they place a child with a parent who will support the child’s relationship with the other parent. The judge wants the child to have a healthy relationship with both parents. They see choosing a primary conservator as trusting that parent with the responsibility of maintaining the other parent’s relationship with the child. Your actions should make them feel comfortable placing this responsibility with you.
2. They value those who put their children’s needs above their own.
Judges and juries tend to believe parents should put their children at the top of their priority list. That doesn’t mean they expect you to ignore your own needs, but it does mean that your children’s needs should be a top priority in your decision making.
To determine whether this is the case with a particular parent, they look closely at decisions the parent has made and actions they have taken in the past.
Putting children’s needs first would seem a simple concept, but it can be very difficult for many people. Often, people convince themselves they are making decisions with their children in mind, when in fact, they’re not.
Particularly in the context of child custody cases, parents’ anger and distrust of the other parent often cloud their judgment. They unconsciously put their conflict with the other parent above the needs of their children. They masquerade as crusaders fighting for their children’s interests, not realizing that their children would have been far better off had the crusade never began. Children often enter adulthood emotionally scarred as a result.
3. They are often forgiving of those who take ownership of their mistakes.
If you find yourself in a child custody case, chances are high you’ve made mistakes. If you believe you haven’t made any mistakes, you should read the next sentence very closely.
Everyone makes mistakes. And unfortunately, a large part of child custody litigation involves parents and their lawyers lambasting each other for their mistakes. Sometimes these mistakes are pretty serious.
Like all human beings, judges and juries can be very forgiving of even really bad mistakes, so long as those mistakes are addressed appropriately. And they can also be very unforgiving of mistakes if they are not. Understanding what makes people forgiving of mistakes and what makes them unforgiving is important.
So, what makes people – and therefore judges and juries – forgiving? People are more likely to be forgiving of our mistakes when we take ownership of them. When we take full responsibility. When we don’t blame other people. And when we have shown a true commitment to not make the same mistake again.
And what makes people unforgiving? When we don’t take ownership of our mistakes. When we attempt to justify the mistakes, blame others for our mistakes, or when we do not show a genuine intention or commitment to not making the same mistake again.
4. They tend to trust experts and neutrals above everyone else.
If you end up in trial in a child custody case, chances are the outcome of your case is not an obvious one. There are points to be made on both sides and the ultimate decision will not be easy for the judge or jury. To make matters worse, both sides tend to have very different views of reality. In the short time the judge or jury has to weigh the evidence and make a child custody decision, it is often hard to know what to do or who to believe.
For these reasons, judges and juries tend to look to neutrals – guardian ad litems, amicus attorneys, therapists, etc. – to help them determine what to do. Why? Because they know these people have been on the case far longer than they have, have seen more, and have had more time to think about what child custody arrangement is best. Due to this, neutrals tend to be the most powerful people in the courtroom outside of the judge or jury.
Rules for Not Losing Your Child Custody Case
Okay, so now that we’ve gone through some general observations, let’s go through some specific rules that naturally follow.
Rule #1 – Never communicate in a way that makes you look mean or petty.
Guess what the #1 piece of evidence used in child custody cases is? Text messages. Emails are a close second. And that long-winded, insult-laden, and/or accusatory email you just had to send last night? It’s going to be displayed in large print on the courtroom wall. And the judge or jury is going to read every word.
Remember Observation #1? Kind, cooperative people don’t tend to send long-winded, insult-laden, or accusatory emails.
But what about just one long-winded, insult-laden, accusatory text or email? You can send just one right? No, you can’t. It is a defect of human nature that we often draw conclusions about people based on one act (or one writing). A judge or juror sees that one diatribe you just had to send, and she may assume that is the way you are generally. And if you do it twice, she’ll be sure to.
Is it the end of the world if you do send that text or email? No, it’s not. We have a rule for dealing with that too (Rule #4).
Rule #2 – Keep your communications brief, informative, and friendly.
This rule comes from a very smart man named Bill Eddy, who created the BIFF method. BIFF stands for “Brief, Informative, Friendly, and Firm.” It is a method he came up with for responding to combative communications from high-conflict personalities. If you are dealing with that, then I would highly recommend his book, which you can find here.
But I have also found that a slightly modified form of BIFF works in all co-parenting situations, and BIFF communications tend to look the best in front of judges and juries because they tend to project cooperativeness and minimize conflict. I’ll call my modified version BIF(F).
Because I think this rule is particularly important, I’ll go through each component below.
Brief. Judges and juries respect people who stay on point in their communications. People who don’t go down rabbit trails, belabor their points, or bring up past grievances. Therefore, be brief.
Informative. They like cooperative people, so be informative. Don’t be evasive, and provide necessary information in a complete and informative way.
Friendly. They love people who are friendly. Don’t be mean or petty (see Rule #1), and end the email with something like “I hope you and your family are doing well.” Judges and juries especially love a person who can write a friendly text or email even when faced with an unfriendly or combative text or email. Why? Because it shows poise, discipline, and good character. The types of traits they want in a primary parenting figure. So, be friendly.
Firm**. Being firm is important if you are dealing with combative communication from a high-conflict personality. In those situations being anything less than firm can invite more conflict or lead to the other parent attempting to take advantage of your lack of firmness. I’ve put the “F” in parentheses because being firm may not be necessary in all situations and in the wrong situation may come across as being obstinate or uncooperative. But if you are in fact dealing with a combative communication from a high-conflict personality, by all means, be firm.
Rule #3 – Be cooperative, within reason.
Cooperation is a critical component of being a good co-parent. And it is important to judges and juries that a primary parent possess this trait. As noted above, when a judge chooses a primary conservator in a child custody case, they see this as trusting that parent with the responsibility of helping maintain the other parent’s relationship with the child. They will look at your past actions to see if they can trust you with this.
So be cooperative. If the other parent needs to swap weekends, agree to it if you can. If they’re in a pinch and need you to pick your child up from school, pick them up.
But notice that I have added “within reason.” Being cooperative does not mean you should be a pushover. You should have a sense of when the other parent needs reasonable cooperation and when they have crossed the line and are taking advantage of you. Also, being cooperative does not mean giving large amounts of your time to the other parent without receiving time in return. That can lead to other problems, particularly in a child custody case.
Rule #4 – Own your mistakes.
Take the time to read Observation 3 above if you need to. We all make mistakes. We are often forgiven if we own those mistakes and take full responsibility for them. And in nearly every child custody litigation, mistakes have been made on both sides. The side who owns their mistakes and deals with them appropriately will fare better. So how do you own a mistake in the context of child custody litigation?
Long before you testify: Depending on the gravity of the mistake, a person who has truly dealt with their mistake often takes active steps to ensure the mistake doesn’t happen again. Nothing tells a judge or jury that you have taken ownership of a mistake more than taking genuine, active steps toward being a better parent.
Which active steps you take will obviously depend on the nature and gravity of the mistake and the underlying issue that led to it. Listing every type of mistake that can be made as a parent is beyond the scope of this article. But active steps most often fall in the categories of counseling, education, and/or rehabilitation/recovery. Talk to your lawyer about the counseling, education, rehabilitation or recovery services that are available for your situation.
When you testify:
Admit to the mistake. Never, ever, lie. Don’t pretend it didn’t happen. Lying will lose your child custody case quicker than anything else.
Admit that it was your mistake. Don’t attempt to justify your mistakes. Don’t blame others for them. There are other ways for your lawyer to help the court understand the context of why the mistake happened. But you should not attempt to justify your mistakes. Otherwise you are projecting that you have not learned from them and will make them again.
Explain how you feel about the mistake. Explain that you’re sorry you did it. You wish you could go back and do it differently or not at all. Yes, talk is cheap, which is why the next step is important, but apologizing is an important part of the process of taking responsibility and receiving forgiveness.
Explain why the mistake will not happen again. It’s important to explain why you will not make the mistake again. As outlined above, depending on the gravity of the mistake, hopefully by this point you have taken genuine, active measures to improve yourself and/or deal with the underlying issues that led to the mistake.
Rule #5 – Work hard to form a good working relationship with neutrals.
Neutrals are appointed to help your children. And, as stated above, their impressions and opinions will likely be the most important impressions and opinions in the eyes of a judge or jury.
Because of this, you should make every effort to have the best relationship possible with the neutrals involved in your child custody case. You should start these efforts from day one when the neutral is hired or otherwise appointed to your case. And because their opinions and impressions are so powerful, you should treat them with all the deference and respect you would show the judge or the jury. If you are already in the middle of a child custody case and have not made every effort to form a good working relationship with the neutrals, start immediately.
Like judges and juries, neutrals are human beings. And as we learned above, human beings tend to make decisions in favor of, or provide testimony that is favorable to the people they are most comfortable with. You can make them comfortable with you by developing a good working relationship with them.
Developing a good working relationship with neutrals is accomplished by showing them respect, communicating with them often, and working with them, not against them. Neutrals are appointed for the purpose of helping your child. Work with them in this effort, and show them how appreciative you are of their efforts.
But what if you feel like a neutral is against you in your case? Do you still need to have a good working relationship with them and treat them with respect? The answer to this question is a definite “yes!” Again, the neutral is working to help your child. This does not end because you feel they don’t support what you want in your child custody case. The neutral will continue to form important impressions and make important decisions about what is best for your child with or without your assistance and input, and these decisions will become more and more in line with the input from the other side – and therefore what the other side wants – if you choose to cease having a working relationship with the neutral. Never allow this to happen.
Finally, as stated elsewhere in this article, child custody cases don’t end when the final order is signed. And neutrals – particularly therapists and parenting facilitators – often stay involved long past the end of the proceedings. Continue to cultivate a good working relationship with these neutrals so that if and when your child custody case comes back for review, you are in the best position possible.
Rule #6 – Put your child’s needs above your own.
Maybe this seems obvious and maybe it does not. It is my philosophy that the day we became parents our needs take a backseat to the needs of our children. That’s not to say our needs are not important, or that they should not be considered alongside the needs of our children. It’s just that our children’s needs should take priority. Some people may disagree with this. But those people will be at distinct disadvantage in any child custody case.
Take time before every significant parenting decision to take a hard objective look at whether you are making the decision for yourself or for your child. It will help to find a good, objective counselor, friend or mentor who isn’t afraid to tell you when you’re wrong. Better yet, for major decisions, ask your family law lawyer.
Decisions as a parent are endless. We make them every day. However, here are some really big ones you should think particularly hard about:
Moving. Changing your residence is obviously a major parenting decision. It is also a decision that leads many child custody cases to open or reopen. Moving any significant distance (any distance that requires children to change schools) is hard on children when they have lived in a location for any significant period of time. They lose significant relationships. They lose continuity of education. And if you are moving further away from their other parent, that parent’s ability to be intimately involved in the child’s education and activities becomes more difficult. Thus, it is particularly important before making a decision to move to ensure you are doing it for the right reasons, and that your child’s needs have been a top priority in your decision making.
Relationships. We all deserve to be happy. We all deserve to move on from our previous romantic relationships and form new ones and it is generally healthy for children to see that happen in good time. However, from a custody perspective who you choose as a romantic partner and when you choose to introduce them into your children’s lives matters a lot.
The timing and nature of the relationship is important. When deciding when to introduce children to a new romantic partner as well as who that partner will be, you need to think about your children first. Generally speaking, children need time to cool off after a separation or divorce before seeing their parents move on to new relationships. That doesn’t mean you can’t date other people, just do it when your children are with the other parent. How long this should last depends on the parents and the child, but generally speaking, six months to a year should be considered.
Regarding the nature of the relationships, it is important for children to see good, healthy committed relationships. Seeing a revolving door of shallow relationships is generally not seen as being good for children. Nor is getting involved in a relationship with someone who does not respect your role as a parent or someone with whom your children don’t generally get along. The person you choose to be in a relationship should hold your children in high regard just like you do. If they do not, you need to ask yourself whether you are putting your children’s needs above your own.
Co-parenting. Here’s where it gets really hard. Co-parenting does not involve one decision. It involves countless decisions over the course of your children’s childhoods (and beyond). However, at the outset of your co-parenting journey it is important to decide what kind of co-parent you are going to be. I don’t want to be too repetitive here because I’ve already covered this above. But if you don’t want to risk losing a child custody case (which can open or re-open at any time), then choose to be cooperative and kind. Even when it’s hard, which will be often.
Filing suit. If you are filing any sort of lawsuit – an original suit, a modification, an enforcement, or any other type of suit against the other parent, you need to think long and hard about whether you are truly doing it because your child will be better off for it, or whether your doing it for some other reason.
As mentioned above, parents often get this wrong because they unconsciously put their conflict with the other parent above the needs of their children. Parental conflict is terrible for children. And lawsuits are one of the most obvious and tangible forms of parental conflict.
This is not to say that child custody and other lawsuits should never be filed. Obviously, I’m in the business of filing them. However, they should be a last resort, and the detriment to the child of having their parents embroiled in a lawsuit should be a top consideration before filing. It must be weighed along with every other consideration, and the benefits to the child from the potential suit should outweigh this consideration if a suit is to be filed.
In child custody cases, we can get lost in the noise – the arguments, the accusations, the petty disputes. To use an old well-worn saying, both clients and their lawyers often miss the forest for the trees.
But hopefully this article helped you understand that in the end, not losing your child custody case is really just about being a good parent and co-parent. And this is all judges and juries are really looking for.