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.