This webpage is: http://www.thelizlibrary.org/child-centered-divorce/mothers-mistakes-in-child-custody-litigation.html
Also see Mistakes
Mothers Make Before Divorce Happens
MISTAKES MOTHERS MAKE
in Child Custody Litigation
Mistake 1. Making threats, complaining, antagonizing, provoking, telling the other side what information
you have and what you know, and otherwise disclosing your plans. Don't
make threats. Don't complain. Don't exacerbate the situation pointlessly.
The fleeting psychic satisfaction isn't worth it. Every mean,
self-righteous, or nasty email,
regardless of whatever else it discloses or documents,
is also evidence against its author -- and in a custody case, your personality can be
held against you.
tell the other side what you know, or what information you have and what
you're going to do with it. The threats are particularly stupid when they're
empty. All they will do is motivate him to better prepare his case. Even if they're not empty, you've lost the element of surprise, and given
him a heads up how to prepare his case against you. (And be careful about what you tell mutual friends and
coworkers. Too many of them end up being his friends. That includes what you put
in writing or on-line or on other electronic devices that make records: email,
Facebook, Twitter, cell phone bills, your vehicle's GPS and toll passes,
your computer hard drive, all leave discoverable evidence.)
Mistake 2. Failing to prepare. Don't file a lawsuit (and don't threaten
to file one -- and do everything possible to keep one from being filed against
you) until you have copies of all information, especially
all financial information and legal documents, that you will need stored
with family or friend in a safe place, including a complete copy of the
hard drives of household/shared computers (call a professional to do this).
Also safely store away all jewelry and precious tangible items, as well as irreplaceable sentimental items
such as old photographs. Carefully think
through who controls what assets (and in the case of household utilities who has the power to shut them off.)
Make a plan to segregate debts, and to assure that debts that will affect your credit rating will continue to be paid.
Have at least one separate bank account and ready access to cash.
Discuss your future case with a lawyer, or preferably
several lawyers. Talk with an accountant (not the family accountant). Thoroughly consider what you will do for income, living
arrangements, transportation, and other needs. Have your own medical insurance
for you and the kids. Make sure that email accounts are separate and under
passwords that only you know, and that you have private communications. Make sure that on-line
social, financial and medical accounts are private and passworded. Get a post office box for
private mail. (And forpetessake don't use the cell phone he gave you to
talk to your lawyer!)
(a) Failing to close joint credit lines. Before "anyone" knows you're planning to get
divorced, to the extent possible, close
all home equity and joint credit card lines that can be run up and used to destroy your credit,
fund litigation against you, and disappear your assets. Pay down
the debts for which you are separately liable. (Even if debts are "assigned" to be paid by one or the other
party in a divorce, that does not bind the third party creditor, who can still come after you.) This rule also
applies to signing joint tax returns. See Mistake 9(a), below.
(b) Filing for divorce near the 10-year social security spousal entitlement date. If you're married for
ten years, and you're the lesser-earning spouse, especially a stay-home spouse, this could mean a lot of retirement money in the future.
Don't file for divorce in year 8 or 9 without making this calculation.
(c) Not trading in the old car for a new one, not putting braces on the kid's teeth, or not
obtaining that elective surgery "now".
These involve big ticket expenses that do not result in having divisible assets, but are
or will be needed or wanted fairly soon, and may be far more difficult (or impossible) to purchase later on your own, when
cash or credit is low, or when you need his agreement or a court order to obtain contribution. Buy them
now with marital funds. Other big ticket expenses could be prepaying college tuition, the kid's tennis lessons,
or for next year's summer camp.
(d) Not living in the jurisdiction you want to live when you file for the divorce. Don't relocate in the first place
to follow the spouse to some remote, undesirable, or iffy new location. Maintain your permanent residence where you want to
live, especially if he's got a temporary assignment. If your marriage breaks down in the new location, you
and the children may be stuck there for a very long time. (And if you have minor children,
do not ever, ever, ever move -- or bring them even temporarily for a visit -- to any
country such as Saudi Arabia with Muslim sharia laws in which, because you are a woman, your freedom to
travel, and your authority over your own children, including leaving with them,
can be restricted.)
(e) Having your baby in a state (or country) in which you may not want to live for
the next 18 years. The state where you give birth has initial jurisdiction
over that child. If you're pregnant and not married, go home to mama. Do
not be lured back to live with him while you are pregnant. Especially without
having a job or substantial ties, family and friends, in the area. Even
if his entreaties to become family or get engaged are not a ruse, if it
doesn't work out, you're stuck. Possibly for the next 18 years. You can
always do the "let's move in together", "let's get engaged"
or "let's try it and see" later. Fewer and fewer courts these
days are permitting women to relocate
with their children.
Mistake 3. Making the custody case primarily about how crappy the man is instead of about the children (usually while professing to be
"agreeing with" the proposition that the child "needs a relationship" with the father and/or pretending to
be fostering this flimsy fuzzy idea). Not focusing on
specifics of what the child needs and the observable tangibles: the child's
developmental age, habits, temperament, needs for consistency or stability;
the parents' work and school schedules; the child's work and school and sleep schedules (and extracurricular activities that
are important and why);
other persons in the respective parents' families, households and lives;
the quality of the households and homelives of the parents;
the parents' respective socio-economic positions, backgrounds,
education, and particular things each can offer (or not); how the child might better benefit from this or that
schedule rather than another and why; time constraints, the pragmatics of traveling and everyday life;
the quality of the communications between the parents; and so forth.
(a) Involving the police or Child Protective Services unnecessarily. This includes calling the police or CPS
when there is no crime or harm that has been or is being committed or threatened, and no other real good
reason to have a police "escort"
or supervision of an exchange.
Here is the
defining child abuse. Here is an article from the Child Welfare Information Gateway. His personality, or his "yelling" under circumstances
in which there are no threats or real fear of harm does not
constitute "abuse" of the sort that warrants the involvement of the police or other authorities. "Calling" includes having
family or friends call the hotline and pretending that "a third party" called. CPS investigators are
constantly wrong in their
assessments (both ways -- not founding abuse that exists as well as finding abuse that does not exist), and their involvement
in your case will create unwarranted complications (such as the appointment of a GAL or custody evaluator) and dubious results.
Repeatedly involving authorities when there is no evidence of an actual
crime is likely to destroy your credibility, increase hostilities, and backfire badly in the
long run. This mistake, as well as mistakes 3(b) and 3(c) below, all hail
from the erroneous thinking that "If I carry on enough making noise (smoke), maybe they'll be convinced
there's abuse (fire). Nope.
(b) Seeking supervised
visitation when it's inappropriate. Unless you and your lawyer both think that there's a good
chance that he's going to be criminally
convicted of domestic battery or child sexual abuse, or you and your lawyer both are pretty sure that
you have or will obtain evidence warranting the termination of his parental rights or at least the permanent cessation of
all contact (rare), or you can out-litigate and out-spend him until he goes away, or
you're desperate to protect the children even for a short time (and after that
come what may), or your situation fits within one of the other limited appropriate
uses of supervised
visitation, cavalierly seeking this remedy is a way to make an expensive complicated mess of your case,
appointment of a GAL and probably also a custody evaluator, and place yourself at a 50-50
risk of ultimately losing custody.
(c) Thinking that getting an ex-parte restraining order by itself proves something. If it ever did,
it doesn't any more. The men's lobby
successfully has claimed that these frequently are frivolous and used as "legal strategies"; thus
even when that was not the intention,
claims of abuse that are not ultimately proved carry a high chance of backfiring.
Unless there is a later evidentiary hearing with a finding of abuse,
or (best case) a criminal charge and conviction, the ex-parte restraining order alone doesn't
prove abuse. It is only evidence that something was going on -- and that "something" indeed could be abuse,
but it also could be a frivolous filing resulting
from a garden variety argument with exaggerated claims,
or a false allegation. This mistake includes running to the battered women's
shelter when that is not necessary to protect life and limb, and taking legal advice under such circumstances
from non-lawyer domestic violence advocates. Ditto, therapists (see Mistakes #5 and 6).
(d) Failing to call the police when an actual
crime has been committed! Rape, battery, assault, stalking,
theft, child abuse, deliberate destruction
of valuable property, and credible threats of any of them
are crimes. If you have been deliberately injured or made afraid, call the police.
See the physician afterward. Evidence of domestic violence and injuries needs to be timely documented.
Women who attempt, months or years later, to claim prior acts of domestic violence or other crimes in their
family law cases tend to be disbelieved. For cases in which there have been instances of battery, and there is a real
issue of dangerousness, especially coupled with depression, see "Will He Kill" (Caveat: if he's
truly dangerous, no anger management classes or therapy will help a whit.)
(e) Thinking that the custody case will turn solely or mostly on his cheating, abandonment, financial shenanigans, lying,
appetite for pornography,
drinking, or similar issues. It won't. It won't, in the absence of demonstrable evidence that this affects his parenting of the
children or is likely to result in harm to them. It especially won't if there is a custody
evaluator, social investigator, or Guardian ad Litem in your case, and they are hearing your unrestrained litany of negatives,
lawyer-controlled testimony in court. Ditto the complaints that he "wanted me to have an abortion", was never around,
"scares" the kids with his yelling, or never helped around the house.
All these facts can have cumulative evidentiary effect when presented dispassionately,
but they are not the sum total
of the custody case. Moreover, when presented with a mother's repeated complaints about
isolated or minor transgressions, judges and others, especially custody evaluators, are likely to see her as
angry, vindictive, unlikeable, unforgiving, overly emotional, irrational,
fixated, parentally alienating, or worse.
(Consider that the
GAL or custody evaluator you are complaining to so bitterly also may have cheated on his or her spouse,
or be a secret pornography aficianado himself, etc.)
Mistake 4. Filing for child support, or a child support increase, if there
is any way you can manage without it. This is the number one way women
end up in custody
litigation, losing control of their lives, and possibly losing custody
of their children. In too many cases of "custody switch", everything was going fine, and something (the ex's financial windfall,
or her family) got her motivated to head into court for more child support. He frequently counters
with a bid for increased time share, including a litany of accumulated wrongs she's ostensibly perpetrated as
the primary custodial parent. The money is rarely worth it.
Mistake 5. Going to a mental health therapist or psychologist. Don't have --
and don't make claims of having -- any kind of emotional disability, disorder,
anxiety, depression, inability to cope, or other dysfunction, if you can possibly avoid doing so. Especially do not
leave a record of it on his insurance. Cry in the shower, go to church, meditate, or
take up jogging. Exercise helps; therapy really doesn't. Drugs don't.
Many lawyers endorse going to therapists because they don't want you
wasting time and money venting to them, or you're rambling, unfocused,
and using them as a sounding board.
Some are just spouting the "common wisdom" promoted by mental health professionals.
If you absolutely,
positively must vent with one of these paid listeners for hire
or psychologist) -- or a physician/psychiatrist but only
if you're truly dangerously dysfunctional -- then do not tell anyone you are going, pay cash,
don't get or fill prescriptions where any record of that can be discovered, and do not take any of their advice that
remotely affects legal or financial issues.
Mistake 6. Taking the children to a therapist. There is absolutely nothing that
therapy from a mental health practitioner can do to fix a crappy situation. Fix the situation; don't try
to train children to cope with it. If children are having problems, then
it's far more likely than not that it's the adults around them who are
doing something wrong. If they need academic tutoring, then seek that; not mental health
therapy and unnecessary diagnoses. Fixing the situation is the only "therapy" that will help.
And don't make the mistake of thinking that shlepping
the kids to a therapist
is a way to "build your case", create "evidence", or
get a third party to testify to the children's
"disclosures". It isn't.
Better they "disclose" to a teacher in school. Judges have become jaded about
clinical therapist testimony, especially
therapists unilaterally selected by mothers, who are seen as biased advocates with next to no credibility
in court (assuming they're even permitted to testify.) If children are
physically injured, see a physician. If children are abused, call the
police. If you're abused, call the police. (Caveat: "abuse" means physical abuse, injury and pain, i.e. a crime. Not his
irritating personality or his non-threatening yelling or insulting.
See Mistake 3(a) -- make sure it's really "abuse".)
Mistake 7. Claiming that the children have physical, emotional, or academic
disabilities, and therefore especially "need" you. One thing that
helps mothers lose custody is to emphasize or fabricate claims that children
are dysfunctional in some way, and hence need them, the primary caregiver
under whose watch the kids haven't done so flippin' well. If the children
do have disabilities, then de-emphasize these problems, and document realistically
how the children have improved, and how
well they are doing academically and in all other ways. Judges like to see happy people and well-adjusted children.
They're burned-out on complaints, have seen far worse (atrocities), and have hardened sympathies. The reality is that unless you or the children are at
actual imminent risk of life or limb, your chances of getting primary timeshare will be greater if you appear to
have a beautifully functioning life with beneficent feelings for all, than if you or the children are traumatized,
victimized and needy.
(If this is impossible, then at least project yourself as
a capable well-adjusted parent who is managing optimally under the circumstances).
Mistake 8. Claiming that the children prefer you as parent. If this is true,
and if you're the better and more attached parent, it should be obvious. Stating that the children want or do not
want this or that also is poisonous to your case (if there are good reasons for what they "want", then the facts alone
underlying those reasons
should be sufficient -- leave the children's feelings out of it.) If he's abusive or incompetent, you
may need to articulate the facts, but in a balanced way (see item #13 regarding how) without harping
and without exaggerating.
Custody evaluators want to see
that you have a rational point of view and can point out "strengths" as well as weaknesses.
Also bear in mind that fatherhood-exaltation custody evaluators and guardians
ad litem (most of them) particularly recoil when women emphasize their super-close loving
relationships with their children. Perhaps they resent that they themselves don't
have these kinds of relationships with their own children (or any children
at all), or as children did not have a good relationship with one or both of their own
parents. These professionals too often seem to have their own emotional issues, and at best are
in it for the money. A mother who emphasizes the difference
between how the children feel about her versus their father is setting
herself up for charges of being a parental
alienator, "enmeshed", overly protective, controlling, angry, depressed, vindictive, and
other mother-dissing phenomena. Also for father-sympathetic increased timeshare or "therapy" to improve the father-child relationship.
(a) Thinking the case is even in part about what the children want. Unlikely. It's about what the judge wants.
In the absence of a well-presented case in court that makes the judge want for the children
what the children also happen to want, or else
the children have to say about it doesn't count. Their "feelings" don't count. Their boredom doesn't count. The important,
enriching, educational, or extremely worthwhile event
that you schedule during his timesharing without his agreement
(preferably in writing) still constitutes interference with his timesharing. If the children
"refuse" to visit or kick up a fuss, you will be blamed for it.
If you have been the primary caregiving parent, and your child is
of school age, then in the absence of evidence of abuse, you
will be seen as primarily
responsible for the child who misbehaves, is noncompliant, or is disrespectful -- and
claim that you "can't get them to visit" will be evidence of your incompetent parenting, not his.
You have two options: make him also want it for the children, or make the judge want it for the children.
Mistake 9. Allowing your lawyer to make substantive decisions, or to pressure you
into signing agreements without adequate time to think about it. It's
your case. Your job is to make it easier for the lawyer to promote your
case, and to find out what you need to do to accomplish your goals, working
together. Read The
Good Attorney-Client Relationship, and the Custody Prep for Moms website (linked above). Do not ever let your lawyer attend
any court hearing or conference without you, or make any agreements in
your case without previously discussing the matter with you and giving
you time to think about it and decide. (Unless you're more sophisticated
in these matters than the other side, that includes pressuring you to sign
agreements at mediation too. If it's such a great agreement, it will hold
for a day or so.) Make sure your lawyer understands this and agrees. Don't cave to threats from your lawyer of
withdrawing or future demands for big lump sums for trial if you don't settle.
(That's extortion, by the way, and should warrant bar discipline.) Some common seemingly minor things agreed to hastily or
under pressure, but which can have long-term bad consequences, include:
(a) Signing, or agreeing to sign a future joint tax return. Be very careful about doing this
unless the assured benefits far outweigh the risks, especially if he is self-employed or cheats on his taxes.
"Outweighing the risks" means that the money is not merely promised, but in hand.
(b) Not being the owner of the life insurance policy. There are three roles in a life insurance
policy: the owner (the person in contractual privity with the insurance company), the insured, and the beneficiary.
Being the beneficiary is useless if you are not also
the owner of the policy with the ability to control who the beneficiary is, or even whether the policy gets cancelled. Too
many women have discovered that they can't collect a cancelled insurance policy from a dead man's estate.
(c) Agreeing to a "right of first refusal"
that's not well thought through. This rule also applies to
anything of importance that is hastily drafted by a mediator or lawyers at a settlement conference.
(d) Agreeing to a "temporary" timesharing solution -- or "temporary" anything else, such as a
parenting coordinator --
that you know is difficult or unworkable, or as to which you have doubts. Just don't agree to "try it and see". Say no.
Temporary agreements have a way of becoming permanent, or at least extremely difficult to get changed. Contra, adequate
temporary financial support if you easily can get it and it's
not so much that it will motivate him to up his timesharing demands.
(e) Agreeing that the family home is a "bad investment", or too expensive for you, and should be sold.
Many financial advisors
will give this advice as a rule of thumb. But occasionally they're wrong. Everyone still has to live somewhere and
housing costs are going to be incurred no matter what. So "it depends". It's not like you can trade the residence for a stock
portfolio and live
on the street. The financial advisor's assumptions may or may not be correct. Moreover, life is to be lived, and quality and neighborhood counts, especially
for kids. There are value judgments here in addition to
calculations. The decision should not be made based on shoot-from-the-hip truisms uttered by pencil-pushing strangers
(or the other party's desire
to minimize support obligations.)
Mistake 10. Failing to attend every single court hearing and case management conference. The overwhelming most of the time when
bad things happen to mothers in litigation, they happen, or the seeds are planted for them to happen in the future, when their
lawyer agrees to something without consulting with them. These mistakes include the "innocuous" agreements for the appointment of or choice of
custody evaluators, parenting coordinators, therapists and GALs. (See mistake #11, below). Two heads are better than one,
and you know the details of your life and needs better than your lawyer does. At worst, a
lawyer who says that you should not or may not
be present, or does not tell you in advance about every single case event, is more likely than not
deliberately or stupidly or lazily going to end up doing something you may not like. Alternatively he may
sincerely believe that your presence harms your own case (in which event
he should have the balls to tell you this outright and explain why).
At any rate, if your lawyer does not adequately inform you so that you
can be present, or tells you that you should not or may not attend, then be assured that
he is unlikely to be doing so out of concern for your personal time and schedule.
Mistake 11. Allowing a mental health professional, child custody evaluator,
parenting coordinator, therapist, guardian ad litem, visitation superviser,
or other court-appointed professional into your case. Do everything
you can to prevent court-appointed
professionals from coming into your case, and resist if your lawyer appears to
be making an ill-thought-through rote suggestion. The odds are far greater
than not that the introduction of these people will exponentially increase
your costs, complicate your case, and end up hurting your chances of prevailing. This includes seeking inappropriate
supervised visitation; see Mistakes 3(a) and (b) above.
(a) Failing to insist on having a court reporter at every single hearing.This includes short motion calendar
hearings and case management conferences, no matter how ostensibly unimportant, and no matter whether they're supposedly "taped" by the court.
Do not ever let your lawyer suggest that you do not need a court reporter. A lawyer who
does this is not representing your interests. It's not a money saver; it's penny-wise, pound-foolish. When
it's documented, everyone behaves better, and you have the record you might need on an appeal (or when you hire a new lawyer.)
(b) Failing to keep on top of and understand your case. It's your case. You need to understand it, you need to
demand all information about it from your lawyer, you need to know exactly what
is going on at all times, and you need to be making the decisions and receiving all information necessary for you to make
the decisions, including -- after explanation, when you are so inclined -- allowing the lawyer to decide between thoroughly described alternatives.
Mistake 12. Letting your own parents badmouth the ex in front of the kids. You'll
be blamed as the parental alienator. They don't understand that times have changed. They only know that their own
child has been wronged, and too often, won't shut up about it. Sad fact of life. More and more these days, it seems as
if it's the grandparents who indirectly are the parties in these cases. It's great if you have their emotional or financial support,
but do make sure they are up to speed on what helps and
Mistake 13. Not learning the difference between telling people what to think and articulating the facts in a way that will induce them
to come to
their own conclusions that accord with yours. If you're in custody litigation or any court case, you will be
testifying as well as telling others
such as your lawyer the facts of the case. Credible witnesses talk about what they saw and heard. People tend to be much
more convinced by their own conclusions drawn from descriptions of what happened than by conclusory statements such as
"he's abusive". When neutral people are told what to think, their minds start weighing and silently arguing
with your conclusions. By contrast, when they are given facts, they may ask for more information, but they don't feel
the same need to mentally interpose their judgment against yours for the sake of balance. Good testimony is when you
paint a picture for the other person by describing what you saw, heard, felt, tasted or smelled. Bad testimony is
telling others your opinions, whether formed from your personal observations or from what other
people have told you.
Mistake 14. Choosing a lawyer because he or she tells you what you want to hear. (Usually, the lawyer who
gives you this kind of sell job actually is letting you mislead yourself by using vague language -- but the written retainer
agreement may "sound" very different, e.g. "no guaranteed results".) Also be wary of the lawyer who sets
fees unrealistically low (a risk that the lawyer will not be motivated),
in the celebrity stratosphere (a risk that your case may be made unduly complicated, churned
with crony referrals and unproductive shenanigans.)
Conversely, you do not want to
hire a lawyer who tries to impose on you the lawyer's ideas
of what your goals
should be, or what is in the best interests of your children.
This is not the same as a realistic assessment of your case, or asking questions to elicit why you hold
the position you hold.
Listen carefully to what the lawyer says. Ask "why". A lot. When you interview a lawyer, you
should be able to articulate a reasonable outcome that
you would like to achieve, and, although some will disagree with me, I think that
the lawyer is going to be more creative, certainly more convincing,
if he or she cares about the outcome -- beyond "winning" -- and
is in actual ideological agreement with you. Consider the lawyer's own personal background. Ask about it.
The lawyer also should be
able to explain to you how realistic or difficult or expensive or not it may be to achieve your goals, and your
Your lawyer is not there to
give you emotional support, or to terrorize and punish your ex. The lawyer is there to work
for you, to strive to get as close as possible to your reasonable goals while also attempting
to limit the amount of pain and cost for all concerned without compromising those goals.
Mistake 15. Failing to set long-term goals, and not keeping the end-game in sight. Don't allow your case to get waylaid and off on
money-wasting, time-wasting, or counterproductive tangents. Disputes over relatively unimportant issues.
Squabbling over minor financial matters. Visitation timing minutiae. Discovery delays.
Getting sucked into the bog of a custody evaluation. Remember where you want the case to end up, and
how you want your family situation to look in the
short term and long term. Keep the lawyer on track by asking how this or
that suggestion or strategy or legal maneuver may help move you toward your goals.
[This article was discussed May 5, 2012, on
The Justice Hour radio show hosted by family lawyer Lisa Macci;
supplemented with additional "mistakes". To listen, download (wma) or
(mp3) file. Re the above (Mistake #5) regarding the
over-consultation of therapists, see the archives
listen to the May 22, 2012 show with Harvard psychologist Paula Caplan on DSM corruption and the APA.]
[This article was updated March 27, 2014, to include additional detail about
"mistakes" that seem to have burgeoned over the
past few years.]