Ten Ways to Lose Your Custody Case – Part 1

            If I have learned anything from almost 44 years  of involvement in divorce cases, it is that the choices divorcing people make and the actions they take during the process are far more determinative of outcome that any other factor. No matter whom they hire as a lawyer, no matter what lawyer represents their spouse, no matter what judge is assigned to their case, the parties themselves construct their case and influence the ultimate result.

            This is most starkly illustrated when custody of children is contested. The parties' lives come under scrutiny to a greater extent than in any other civil litigation. Unfortunately, parents fighting over their children often make terrible decisions that negatively impact their ability to show the court why they should be the primary custodian.

            I have identified ten common mistakes that custody litigants repeatedly make. Most make more than one; some make almost all.

            Of course, no one can guarantee that avoidance of these errors will result in winning a custody case. But, making them can certainly and dramatically lower the likelihood that the court will find that the child's best interests will be served by awarding custody to the erring parent.

            Here are the first two of these mistakes:

1.  Create drama and make a record of it – post it on social media

            In many custody cases, a lawyer might expect to spend a significant amount of time reviewing Facebook posts, text messages, emails, and other electronic platforms in the search for ammunition to use. In a recent case, our client forwarded us Facebook posts made by his former wife in the midst of a contest over custody. The posts were attacks on the legal system, her former spouse and his family, and the lawyers involved. Vivid descriptions of the supposed "bad" behavior of the other parent were graphically included. Since the teenage child who was the subject of the litigation was also a "friend" with the posting parent, the child got to review all the spleen and hatred being spewed on her parent's timeline. It is not difficult to see how the Facebook posts could be used as evidence that the posting parent did not have the best interest of the child at heart.

            I have advised clients to close their Facebook and similar accounts while a case is in process. However, some people are just too addicted to social media to step away. And it can hurt them.

2.  Involve your new significant other

            Last week I was in Court for our first appearance before a magistrate in a divorce case where custody of two young children is at issue. We were representing Dad. Mom came to court accompanied by her new boyfriend with whom she was now living, having left her husband. He spent the entire hearing glowering at me. The magistrate certainly noticed.

            We have seen many cases where the new significant-other gets involved directly in the dispute, going so far as to get into screaming, if not physical, encounters with the other parent. This certainly creates an atmosphere that is potentially harmful to the child involved. Moreover, bad acting on the part of the boyfriend, girlfriend, or new spouse certainly casts doubt on the judgment of the involved parent.

Getting Elected

            After my appointment to the Domestic Relations bench in May of 1987, we had to get organized to run for a full six-year term in November, 1988. Although I had run for judge before (and been roundly trounced by incumbents), this campaign would be different. I would be fighting to keep a job that I was really beginning to enjoy.

            I did take one precaution against disaster. When I left the Capital University Law School faculty, I arranged with then Dean Josiah Blackmore to take a sabbatical, rather than resigning. My tenure position would be held for me until the results of the election decided my future.

            By far the most unpleasant part of running for any office is the need to raise money. This is further complicated by the rules that prohibit judges and candidates for judicial office from directly soliciting funds from anyone. This means that a "committee" has to be formed to run the fundraising part of the campaign. Fortunately, I had great people helping me and we raised about $75,000.00, which was a substantial sum for a judicial campaign at that time.

            We produced a TV commercial; but, given that 1988 was a Presidential election year and that a senatorial election was being hotly contested in Ohio, we had a hard time buying time to run the commercial. We made a radio commercial that ran a lot, and we used a lot of targeted direct mail.

            The best part of the campaign for me was the opportunity to meet people in a number of different settings and talk to them about the Court, its mission, and the job I was doing and hoped to continue to do. There were candidate nights sponsored by various civic and political groups to which all the candidates were invited. Most candidate nights put judicial candidates at the end of the evening. Often, the crowd had thinned considerably before we got the opportunity to talk.

            I enjoyed the house parties the most, with the small gatherings of neighbors and friends who were really interested in judicial candidates. I remember one meeting of about 15 or 20 folks, held in a neighborhood leader's living room. We sat in a circle and the people were encouraged to ask questions of the candidates, who had been scheduled to appear individually at 20 minute intervals. When it was my turn, I was asked several salient questions. Then, one person asked, "Are you a Christian?" "No," I replied, "I am Jewish." She responded: "Well, I guess that's OK!"

            Election Day was November 8, 1988. We had a campaign volunteer stationed at the Board of Elections to call us at our Downtown hotel room and let us know how the count was progressing. My opponent was an experienced lawyer whose father had been a long-time judge and who had considerable resultant name recognition. The race was very tight, but we maintained a small lead throughout the evening.

            1988 was a presidential election year, pitting George H. W. Bush against Michael Dukakis. Bush won in a walk and we Democrats were, to put it bluntly, getting our butts handed to us. I was a nervous wreck.

            Finally, about 11 PM, we got the call: All the precincts had been counted and we had 50.75% of the votes. Hardly a landslide, but we won. Felt pretty damn good!!