Ten Ways to Lose Your Custody Case – Part 5

          These last two hints on how to lose custody of children both relate to the failure of parents to take responsibility for their actions and the consequences of those actions. Sometimes a parent will come to see that things are not going well in their quest to be the primary custodial parent of their children. They then have two choices: They can examine their behavior and consider that their actions have placed them in the position they find themselves. Or, they can resist change and place the blame elsewhere.

9.         Don't get help

            Over the years, I have had contact as judge or lawyer with a number of parents who are clearly their own worst enemies. Sometimes the problem is drugs or alcohol, or both. Sometimes it is the result of personality or mental health problems. Sometimes it is the inability to control their emotional response to the other parent. Often, it is a combination of several of these factors.

            Problems of this nature often become apparent to the various players in a custody case, including the lawyer for the parent with the problems. It is very difficult for a lawyer to tell his or her own client that they are the source of the difficulties with their case. But a good lawyer will confront the client about the client's need to seek help to deal with a serious life problem that is impacting that parent's relationship with, and ability to care for, children.

            We were recently involved in a case where it was clear to all the lawyers and the Guardian ad Litem that one parent had serious mental health difficulties, as well as drug and/or alcohol challenges. The other parent, whom we represented, was compelled to seek a revision in the custodial arrangement because of fears expressed by a child concerning the erratic behavior of the parent with problems, and, most significantly, because the troubled parent would not acknowledge and seek help to overcome the problems that were interfering with their ability to take care of the child.

10.       Blame your lawyer – Get a new one

            Finally, when all is going poorly and the custody case seems about to be lost, individuals who cannot take personal responsibility shift the blame to the lawyer they have chosen to represent them. "Certainly," the client thinks, "this can't be my fault. I am a wonderful parent and my spouse is a miserable person. I don't like the advice my lawyer is giving me. If things aren't going my way, it must be my lawyer who is at fault."

However, there are several pitfalls associated with changing counsel in the middle of any litigation. Changing lawyers is expensive. Any litigation, whether it involves custody or some other issue, requires a lot of "front-end load" of the lawyer's time. When a case is already in progress, this may be compounded by the need to review and absorb a complex file just to get up to speed.

Changing lawyers also often sends a message to the other players in a case, including the opposing counsel, the Guardian ad Litem, and the judge and/or magistrate involved in the matter. Lawyers are generally leery about taking on a case that another lawyer has been handling, primarily because we are aware that clients change lawyers under circumstances that are usually difficult in cases that have gone off the tracks for some reason. Many lawyers simply refuse to be the "substitute" in a case that has been ongoing.

            Finally, if the client is changing lawyers because the advice he or she is getting seems to point to problems of the client's own making, the refusal to deal with realities cannot be cured by seeking new counsel. Parents in custody litigation need to look to their own behavior with as critical an eye as the one they focus on the other parent.