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!!

Advising Ann Landers

            I have always enjoyed the various advice columns that appear in newspapers and magazines. Ann Landers (Ask Ann Landers) and Abigail Van Buren (Dear Abby), twin sisters, entertained and enlightened their readers long before there was an Internet to provide answers to life's problems.

            In January of 1991, I was in my office at the Courthouse when I received a phone call from a woman (I don't recall her name) who told me she worked for Ann Landers and that she had been referred to me by someone at the Ohio Supreme Court. She asked if I could help with the response to a letter that Ms. Landers had received. I said I would if I could.

            She read me that letter. It seems that a young lady had been dating a married man for several months while he was going through the process of obtaining a divorce somewhere in Ohio. He had reassured her that his intention was to marry her when he was free and able. As the date of his final hearing approached, she had asked him about the possibility of setting a date for their nuptials.

            He told her that he could not marry her as soon as his divorce was final, because he had been advised by his lawyer that Ohio had a year-long "waiting period" after a divorce, during which the newly-divorced parties were not permitted to obtain a marriage license.

            My caller asked, "Is that true?"

            "No," I told her. "In fact, I have knowledge of couples who proceeded immediately from my courtroom where one of them had just been divorced to Probate Court to obtain a license and get married as soon as they could." It sounded to me like a dodge on the part of the boyfriend to avoid his commitment to the letter writer.

            She thanked me for my time and told me to watch Ms. Lander's column for the letter and the response. On January 27, 1991, I read the opened the newspaper and there it was. Was there a waiting period in Ohio? Ann Landers wrote, "No. According to Judge Ron Solove of the Domestic Relations Court Franklin County after a divorce is final there is no waiting period before a person may remarry in Ohio." She went on to suggest that the letter writer consider the sincerity of her male friend.

            Somewhere in the archives of "Ask Ann Landers" rests my brush with advice-to-the-lovelorn fame.

Dressed for Court

            I am constantly dumbfounded by how people dress for a court appearance. Were I about to appear as a litigant in front of a judge or magistrate, I would want to make the best impression possible. To do so, I would include in my strategy an attempt to look at least respectable. I would want the court folks to take me seriously and to feel as though I was treating them with respect.

            I recently heard a discussion of men's fashions through history on NPR. The individual being interviewed suggested that the rule of the day was decreasing formality. He predicted that, within a very few years, the only men wearing neckties on a regular basis would be ministers and lawyers!!

            Personally, I like to be comfortable. Having a silk noose knotted tightly around my neck is not comfortable, and, on most days I wear a sport shirt and perhaps a sweater in the office, unless I am going to court. On days that I am not expecting to see a client (like today), jeans fill the bill.

            I do not suggest that individuals appearing in court need to be "dressed up." However, some of the outfits I have seen are about as "dressed down" as you can get. One of my favorites from my experience on the bench was the defendant who appeared in front of me on a contempt citation for failure to pay his child support. His t-shirt was emblazoned with a drawing of two pigs apparently in the throes of copulation. The caption under the picture: "Makin' Bacon." Very impressive.

            I think that a video recorder placed at the entrance to the Courthouse and operated for an entire day would generate a great deal of entertainment for the viewers, generated by the fashion choices of some of the litigants and witnesses entering the doors. Perhaps the people who produce "Duck Dynasty" or the "People of Wal-Mart" would be interested in converting the video into a regular reality show.

            However, not all people look their worst for court. In particular, I have noticed that some women appear looking very good for their final divorce or dissolution hearings. Sort of a nose-thumbing to the men who are cast aside, or did the casting. One experience, however, really takes the cake.

            I was running through the normal morning docket of uncontested divorces when a couple approached with their lawyers for a final hearing. The woman appeared in what I would call a "little black dress" – nothing fancy, but very nice. However, when I looked at the assortment of lawyers assembled in the back of the courtroom waiting for their cases to be called, I noted a level of whispering and quiet hilarity that was out of the ordinary.

            After I granted their divorce and the parties turned to walk away, the mystery was solved. The dress had virtually no back, exposing the very top of the young woman's gluteal cleft. After she left the courtroom, Harriet, my bailiff, walked up to me and said, "She bought that dress at Frederick's for Court!"           

Phone Call

              In mid-January of 1987, I was in my office at Capital University Law School where I had taught since August, 1973. I was a Full Professor, with tenure, and Associate Dean for Students. I liked my job, but after 14 years I was restless to try something new.

            My secretary hollered (our intercom system was rather rudimentary): "You have a phone call on Line 2. They say it's the Governor's Office. Who knows?"

            I picked up the phone. "Can I help you?" The voice on the other end said, "Professor, this is Governor Dick Celeste. I want to talk to you about a vacancy on the Franklin County Municipal Court bench. I'd like to appoint you, if you want the job."

            I had been involved in Democrat politics in Columbus since 1960, when my buddy, Pete Miller, and I volunteered in the Ohio Democratic Party headquarters stuffing envelopes for the Kennedy for President Campaign. Three years before the Governor called, I had run for a vacant seat on the Franklin County Domestic Relations bench, and had been roundly trounced by the Republican candidate. The idea of becoming a judge was still there, but this call had come out of the blue.

            Peggy Bryant, an outstanding Municipal Court judge had just won election to the Court of Appeals. The vacancy created by her election had to be filled. My friend, Lew Williams, had just been appointed to a vacancy in Domestic Court.

            I thanked the Governor for his confidence in me, but told him that I really was uncertain about the Municipal Court appointment. I told him that I thought Domestic Relations was more in line with my experience. The Governor told me that he had appointed Lew Williams to Domestic Court, with an agreement that Lew would be re-appointed to a General Division seat as soon as one opened up. The resulting vacancy would be mine if I wanted it.

            Thus, on January 29, 1987, I began my 13-week career as a Franklin County Municipal Court Judge.

            Here is the one outstanding event I remember: I was Duty Judge on February 14, Valentine’s Day, 1987. When I got to the duty room at 8:30 a.m., couples were already lined up to get married. That is what I did all day long – married folks, from 8:30 a.m. until 5:00 p.m. I skipped lunch that day.

            On May 12, 1987, I was appointed to the Franklin County Domestic Relations Court. Three or four years later, a couple appeared before me for their Dissolution of Marriage hearing. "You know what," said the wife, "you married us on Valentine Day in 1987!" The circle goes 'round and 'round.