Tips for a custody trial – Part 1

As most trial attorneys know, litigation is unpredictable.  This is an understatement for family law.  It is difficult to find a true slam-dunk type of case with no real risk of an adverse result.  However, there are a few tips that can mitigate the risk of an adverse result and bolster the chances for a good result.  To make this post more user-friendly, I will put these tips in “do and don’t” format.

DO – Listen to your lawyer.

Ok, so I’m a little bit biased here.  However, there is a reason why you hired a lawyer.  Some of the most important reasons include knowledge and expertise, familiarity with courtroom procedure and rules, and experience with the subject matter of your case.  I hear people all the time say things like “I have nothing to hide, and the truth can’t hurt me.”  Everyone has something to hide, and the truth CAN hurt you if spun in an unfavorable light.  In my opinion, the primary function of a trial lawyer is controlling the flow of information.  This gives the lawyer the ability to make point of emphasis, organize the message and build a theme for your case.  The more the client interferes with or strays from the lawyer’s building a theme for the case, the more distorted and unclear the theme becomes.  If your theme is distorted and unclear, your chances of prevailing decrease because there won’t be a coherent rationale for what you want.  If your lawyer tells you something doesn’t matter, even if you disagree, listen to your lawyer.  If your lawyer shushes you, then shut up.  Oftentimes a client gets off on a bad foot by interrupting his/her lawyer and annoying the judge by speaking out of turn.  The easiest and fastest way to get in trouble in a courtroom is to interrupt the judge and/or speak out of turn.  Let your lawyer do the talking unless you are on the witness stand.  That’s why you hired a lawyer.

DON’T – Exhibit a condescending viewpoint about the other parent.

This one is tricky, but it’s very important.  Custody cases hinge on what is in the best interests of the children.  They do not hinge on who’s the better person, the smartest person, or the the most successful person.  In other words, negative testimony about the other parent should come from a standpoint of how the other parent’s behavior isn’t good for the kids, not how the behavior shows how the other parent is a Grade A moron.  In my experience, a humble, child-centered parent has great credibility.  Being dismissive of the other parent’s views or outright hostile typically doesn’t help you.  You obtain and keep brownie points by being respectful of the other person or at least referring to how the behavior adversely affects the children as opposed to how deplorable the other parent may be.

DO – Pay your child support

Non-payment of child support doesn’t necessarily mean your a bad parent.  However, it doesn’t help your case either.  I’ve seen people testify in court, some quite disingenuously, about how hard it is to take care of the kids when the other parent doesn’t even pay support.  Are they being over-dramatic?  Sometimes, but don’t even make that argument an option.  Even if you think the other parent doesn’t need the support, or even if they actually don’t need the support, pay anyway.  It’s the law.  The child support obligor doesn’t have a right to audit how support funds are used.  What’s that Kanye song from way back?  Something about “getting lipo” with your money?  Yeah, a child support recipient can use the support for whatever they want, even if you think it’s frivolous.  Just pay the support.  Don’t add cute lines in the check memo about paying under protest or how it’s “blood money.”  Just pay, then let the evidence do the talking on what the appropriate support amount would be at trial.

DON’T – Write things in texts or emails that you don’t want a judge to read.

Statements made by a party are typically excepted from the hearsay rule.  That means a judge can review written communications as evidence in the case.  Judges may use profanity like regular people outside the courtroom, but they typically don’t like it when people use that type of language with each other via written communication.  If you’re a man, don’t call women the B word.  If you’re a woman, don’t call men the D word.  Even if you think that label is well-earned, DON’T USE IT.  I see women on the stand, who break into tears when their lawyer asks in a solemn tone, “did he call you a b*****?”  I personally think it’s theatrics and melodrama (although some men are truly awful and deserve to be humiliated for using this term).  However, don’t give them that opportunity.  Compose texts and emails as if you were working in customer service and dealing with a customer.  “I understand you want to go visit your mother this weekend, but this is my visitation weekend so I would appreciate following the court ordered visitation” as opposed to “you did this on purpose you stupid B****!”  Ask yourself, “would a good customer service rep speak to a customer this way?”  If this answer is no, then rephrase before you send.  Don’t assume the judge will understand and endorse impolite texts or emails.  The judge is not your friend or your bro.  He/she will not high five you for a good one-liner.  Be diplomatic if you don’t want to explain why you used bad or insulting language.

DON’T – Refer to your child as “my child” or “the child”.

You might think that the other parent is so utterly lacking in parenting skills or involvement that you are the only real parent.  But as the old saying goes, “it takes two to tango.”  It takes a man and a woman to make a child.  Therefore, regardless of how despicable the other parent might be, he/she is still a parent.  This view goes back to my point above about not being condescending.

Perhaps even worse than saying “my child”, or at least worse in my opinion, is referring to him/her as “the child.”  I have heard this few times in custody trials.  It is creepy.  It’s like you’re talking about a test subject in a lab.  Your kids are the most precious part of your life.  Don’t talk about them like they are expendable lab rats.