The Myth of Revenge

The end of a relationship, whether a marriage, or something else, almost always brings a great deal of pain.  There is mourning for lost time, lost dreams and lost potential.  Pain in losing a relationship is good.  It means you cared about the relationship, otherwise why would you have pain at its ending?  Pain and sadness are a natural part of grieving.

However, sometimes people resort to unhealthy ways of managing their post-relationship pain.  They assign blame, and they create a scoreboard in a never-ending battle to punish their ex-partner.  Feeling like you gave more than the other person, and that you were wronged by that person, is natural.  It becomes an unhealthy thing when you allow that pain and sense of being wronged to poison your relationship with your children and impair your ability to move on and be happy.  From my standpoint as an attorney, I see how pain influences people to needlessly prolong their case and make decisions that are not good for anyone.

I’ll give you an example of how this works.  Mother has an affair which leads to divorce.  Father is naturally heart-broken and angry.  In the divorce case, Mother offers to share parenting time with Father half and half.  Father says “after what you did to me, you’re lucky if I ever let you see them again!”  Father’s pain causes a distortion in the way he views his case.  He forgets that a custody case is ALWAYS about the best interests of the children.  He can only see that he is hurt, so he must punish Mother.  Punishing Mother could be punishing the children.  Maybe or maybe not, but Father does not even ask himself whether his position is best for the children.  Revenge that hurts children is never a good thing.

How about another example?  At the time a divorce is finalized, Father is sleeping on a friend’s couch so Mother can remain in the home with the children.  At the time of divorce, Father is not in a position to take on more time with the children because he doesn’t have his own place.  Consequently, the judge awards Father less time with the children.  A few years later, Father is back on his feet, with his own place, a better job, and an increased capacity to spend time with the kids.  He asks Mother if they can amicably amend their visitation order so that he has more time with the children.  Mother says “you didn’t care when we divorced, so why would you care now?”  She resents Father because she thinks he didn’t try hard at work while they were married.  Now that he is doing better, she wants to punish him.  Here again, Mother is not thinking about what is best for the children.  Her pain distorts her view such that she can’t see how keeping the children from their Father will hurt them.  She doesn’t even ask herself whether having more time with Father would be best for the children.

Another side of revenge is the myth that it somehow makes you feel better.  I have never seen anyone who took revenge on someone who truly felt better.  When they talk about the revenge, you typically can tell that they are still angry about what happened.  I view feeling angry and feeling happy as mutually exclusive.  If you have one, you don’t have the other.  So if you’re still angry, and still unhappy, what was the point of the revenge?

As an attorney, all I can do is counsel people.  That is why you refer to an attorney as “Counsel” in court because the clients in the case control what they want and an attorney merely counsels the client.  In my practice, I counsel people to try and put revenge aside so they can consider what’s best for their children.  I also encourage people to put aside revenge because it hurts them as my clients.  If you’re involved in a custody case, I suggest you ask yourself the question “am I doing this because it’s best for the kids or because I’m mad at my ex?”  Asking the question is the first step in changing your perspective.  A change in perspective just might lead to a happier, healthier life.

Happy Mother’s Day

Fathers’ Rights is often misconstrued as anti-women and anti-mothers.  Nothing could be farther from the truth.  Fathers’ Rights is about equality, not misogyny.  The roles of both Mother and Father in the parenting process is vital.  You cannot diminish the importance of Motherhood without diminishing Fatherhood.

I tried to find a kitchy quote on Motherhood to use in this blog post.  Interestingly, the impulse to find such a quote is a habit I inherited from my Mother.  I’ve been blessed to observe mothering by many different mothers, including my own Mother, my wife, my grandmothers, my aunts, my sisters in law and many others.  If I could sum up my observations with one statement, I would say “Mothering is awesome!”  I mean this not in the way the Bill and Ted or the Teenage Mutant Ninja Turtles would use the word awesome but as in awe-inspiring and awe-creating.  Overpoweringly significant.

From the world of COVID-19 quarantine, I observed mothering in its finest and purest form.  My wife, taking work phone conferences and reviewing data on a giant computer screen, all from the kitchen table, and all while intermittently directing our son to various activities to keep him happy and occupied.  The whirring of the sewing machine as she volunteered many hours, well into the night, putting together protective masks for health care workers.  The care and concern she showed for family members, co-workers and total strangers.  My own Mother, the middle school principal, working all hours of the day, despite school not being in session, striving to be a boon of strength and support to her students and staff, many of whom do not have positive parental-role-models in their lives.  Driving through her neighborhood so she can show love and support for her neighbors by waving to them as they sit on their porches.

As a young man, whenever I heard men speak this way about their wives and mothers, I would often think “I wonder what he did at home that he’s making up for with this speech?”  I don’t doubt that many of those men thought a public speech was gratitude enough for the good influence of women in their lives.  As I am now grown, and have a child of my own, I strive for something greater.  The greatest gratitude I can give my wife and Mother is my support and facilitation of mothering.  As men, we cannot disrespect or dismiss the mothers of our children without doing harm to those children.  I often thank God for the influence of women and mothers in my life.  I wish mothers of the world a happy Mothers Day.

Brady T. Burr

What is an “emergency” for purposes of emergency custody?

Emergency custody is one of the most difficult concepts for clients, and lawyers, to understand.  The statute on point in Oklahoma is 43 O.S. section 107.4.  The statute defines conditions which constitute an emergency as follows: “the child is in surroundings which endanger the safety of the child and that if such conditions continue, the child would likely be subject to irreparable harm.”  The question then becomes “what situations endanger the safety of a child and make irreparable harm likely?”  There are as many opinions about this as there are people in the world.  While people have differing views on whether a given situation is an emergency, there are some situations that will typically constitute an emergency that judges recognize.  Here are some examples:

  1.  Physical/sexual abuse.  If a child has been abused, and there is evidence to prove it, pretty much all judges will grant emergency custody.  Suppose there is evidence that one parent yells at the children.  Some might consider this emotional abuse.  This probably would not be an emergency because emotional abuse is very subjective.  The fact that one parent yells at the children might be good evidence to use at trial supporting a request by the other parent for custody, but it probably isn’t enough to be an emergency the law will recognize.
  2. Drug abuse in the home.  If there is proof of drug abuse in the home of an illegal drug like cocaine, meth or heroin, then judges will likely grant an emergency order.  For drugs like marijuana, given the current legal climate, that is probably not an emergency in the eyes of the law because marijuana for medical use is legal in Oklahoma.  However, just because a drug is legal doesn’t mean abuse of that drug won’t give rise to an emergency order.  If alcohol use leads to multiple DUI’s, or other criminal activity like assault and battery, then judges will probably grant an emergency order.
  3. Uncontrolled mental illness.  Mental illness is a tricky situation, which may not necessarily be an emergency.  The fact that someone has bipolar disorder is not by itself an emergency; however, if the situation is not under control there may be an emergency.  If a bipolar person is sleeping long hours while a baby goes unfed, with diapers not changed, and without supervision, that is an emergency.  If a person with depression doesn’t take the kids to Main Event on a Saturday because they don’t feel like going, that is not an emergency.

These are just a few examples of situations that may or may not be an emergency.  I’ve heard clients complain that the law is too stringent.  Their babies are suffering and they can’t do anything!  I’m a parent, so I think I can understand how frustrating that feeling can be.  The reason that the law is so strict on what constitutes an emergency is because people cannot be deprived of the right to parent their kids without due process of law.  As a principle of constitutional law, the level of process someone deserves depends on the importance of the right at issue.  For example, you are entitled to less procedural safeguards for losing a drivers license than for losing your kids.  Kids are more important than drivers licenses, so the procedure is more protective of one than the other.

Emergency custody requires seriousness of the potential harm to kids as a procedural safeguard.  This makes it less likely that kids will be taken away without justifying circumstances.  An emergency custody hearing is much shorter than a custody trial.  This is because the emergency nature of the situation should be self-evident.  If the situation is more subjective, then the affected parent is entitled to a full hearing with more expansive presentation of evidence.

I think as a society we can all at least appreciate the idea that we don’t want the government to take away kids from one or both parents on a whim or without serious circumstances.  That may mean you will have to wait for a trial before your story is fully heard, but it also means that you are protected from non-emergency suspension of your custody rights.

Apples to Apples: why comparing your case to another might not be helpful.


I imagine many people are familiar with a family game called apples to apples.  In this game you receive a word prompt, and then you look through cards dealt to you, which also contain words, to determine which card most closely matches the word prompt. The players take turns picking which card amongst cards suggested by the other players is the best match to the word prompt. A fun, and often frustrating, part of the game, is dealing with the other players’ opinions.  For example, a word prompt might be daring, and the winning card is soap. You might pull your hair out thinking “why in the world is soap daring?” And the player picking the card will give an equally frustrating answer “I just really like soap.” The subjective preferences of each player make picking the winning card more complicated than simply picking a card that you believe is most on point.  You have to predict the other player’s preferences, and hope that choosing player doesn’t disregard your card because they are mad at you or simply don’t want you to win.  Hence, each players chosen card may not necessarily compare to the other chosen cards in an apples to apples type of comparison.

Just like comparing your view of the most relevant card to that of other players’ views can be upsetting, clients in family law cases often encounter confusion and frustration in comparing their case to that of friends, relatives and coworkers.  I hear all the time questions like “he has three kids and I have three kids, and yet he pays less in child support. Why am I paying so much?” or “my brother got joint custody of his kids, and he lives in another state; why can’t I have joint custody too?”  These types of questions ignore the numerous differences between the situations that dictate a different result. Here are some of the most common reasons that cases with a few similarities often have different results:


The judge assigned to your case is a very important factor in determining the outcome of your case.  Some judges will award joint custody even if the parents are not getting along as a way to force parents to work together.  Some judges will not award joint custody if one of the parents doesn’t want it, or the parents have even minimal conflict.  Some judges think that infants need to spend the bulk of time with the mother even if the father is a competent caretaker. Some judges believe that if an infant is not breast-feeding, then there is no reason for the mother to have more time than the father.  The judge assigned to your case, and the particular decision-making style of that judge, can have important effects on your case.


A lot of the time, the logistics of a case will have dramatic effects on the outcome. For example, suppose a father works at Tinker Air Force Base, with work beginning at 6 AM.  It would be difficult to take the children to daycare at such an early hour (probably at least 5:30 AM). The logistics of the situation might lead a judge to award more time to the parent whose schedule permits an easier child caring situation. Another factor that has significant impact on the case is the distance between each parent’s home.  Sharing time equally is a easier if people live closer to each other.  If you live close to each other, chances are you will be in the same school district. If you are in the same school district, travel-time to and from school will probably be similar for each parent.  I have had cases with clients living in Norman, but the kids attend school in Edmond. The parent living Norman would have to drive the kids to Edmond every day for school if equal time were awarded.  This would obviously be extremely inconvenient and burdensome for the family and equal time may not be a workable solution.


A case often hinges on the personalities involved.  This would include not only the judge, and the parties, but also the lawyers involved in the case.  There a lot of personality types for lawyers who practice family law.  Some lawyers have a pragmatic view of the case and work cooperatively with the other lawyer to create a coparenting framework that will give the parents and the children a workable custody plan.  Some lawyers will look at each case as if it were it pistols duel, where only one party can win.  These lawyers often encourage their clients to harbor animosity for the other parent, and refuse to negotiate in good faith. A contentious lawyer can often convince a judge that joint custody is not proper when the contentious relations between the parties were caused by one lawyer’s encouraging, or even creating, the contention.  Obviously, the personalities of the parents is also an important factor affecting the outcome of a case.  Some parents are very defensive, and seem to be unable to cooperate with the other parent to solve problems.  Parents like this will often focus on how the situation is the other parent’s fault rather than seeking a resolution.  Some parents have trouble controlling his/her anger, inhibiting the cooperation that is necessary for a functioning joint custody relationship.  The personalities involved in a case will differ from case to case, leading to different outcomes.


As I have discussed in prior articles, settlement is a voluntary process.  It only works if both parties are willing to agree.  Sometimes clients will compare a situation where the other party is not willing to settle to a case where the parties settled by agreement.  “In my brother’s case, he received joint custody, and they do equal time. Why can’t I do that in my case?” a client might ask.  However, the client may not understand or acknowledge that in the brother’s case joint custody and equal visitation were awarded pursuant to an agreement between the parents whereas in the client’s own case the other party will not agree to joint custody or equal visitation making a trial necessary. Flexibility on settlement will vary from case to case.


All of the different combinations of these and other factors can make comparing one case to another, like apples to apples, a fruitless and frustrating exercise (did you get my awesome pun fruitless?)  Determining a likely outcome in a case requires years of experience and careful analysis.  You will need a lawyer capable of careful analysis and experienced enough to predict a case outcome based on your particular grouping of factors.

The Danger of Inaction: a call for Vigilance in Enforcing Fathers’ Rights



The danger of inaction is one of the most pervasive problems in family law practice.  Let me give you a hypothetical to illustrate the nature of this problem and why it is so dangerous. Suppose you and your wife have been living apart, separated for years.  At the beginning of your separation, you asked to see your kids often, but your wife would not let you see them because she was angry about the separation.  Rather than get into yet another fight, you let it go, thinking that once everything settles, she will ultimately let you resume contact with the kids.  A month becomes two months, two months become six months, six months becomes a year and so on. Before you know it, it has been two years since you last saw your children. Throughout that time period, you made repeated requests to see the kids only to be rebuffed by your wife. At last, you’ve had enough, and you decide to file for divorce so that you can get court ordered visitation that does not depend on your wife’s consent. When you appear for a temporary order hearing, or a final hearing, your wife’s lawyer argues that you don’t really care about your kids because you haven’t seen them for two years. You counter that the only reason you did not see them is because your wife withheld them from you. Your wife’s lawyer then asks you why you did not file a case to enforce your visitation rights.  Your wife’s lawyer further claims that any request you made to see your kids was insincere because you never followed through.  The judge doesn’t know who to believe.  However, one fact is not in dispute: you have not seen your kids for two years.  On that fact alone, it is probable that a judge will award you less visitation than what you otherwise would have been awarded.  Your kids have built a routine and familiarity living in mother’s home without their dad.  Judges don’t often want to change the status quo just because a parent, after a long absence, has a change of heart.  The judge reasons that you willfully alienated yourself from the kids because you never took any action to enforce your right to visitation.

Believe me, this happens more than you would think.  It is a pet peeve of mine that people make these arguments; but people keep making them all the same.  I personally do not believe that someone’s failure to initiate a contested custody case, in and of itself, demonstrates that the person does not care about his/her children.  However, it is a common argument, often done successfully. The danger of inaction is that your failure to act will be perceived as apathy toward being an influence in your kids’ lives.


Consider this less dramatic hypothetical: you get a temporary order allowing you to see your kids every weekend. A day before your weekend visitation, the mother asks you to relinquish your visitation for that weekend because the kids have sporting activities or relatives in town.  You think to yourself that it will be good if you can show that you are a team player, so you agree that you will not have visitation that weekend.  This same scenario becomes a repeating pattern. Before you know it, you agreed not to exercise seven out of 10 weekends where visitation was available. At trial, the mother’s lawyer argues that your failure to exercise the majority of time available to you shows that you put yourself and your own desires above being a father.  You respond, explaining that you were just trying to be flexible.  The judge agrees with the mother’s lawyer, and reduces your visitation to a time commitment more in keeping with the visitation you actually exercise.

Of course, being a team player and being flexible is an important attribute for a healthy co-parenting relationship.  However, if the pattern becomes you giving time but not getting any time back, this will be a problem.  While we all aspire to be unselfish people, the time that you have with your kids is something you should be adamant about keeping.  At the very least, if you give up time, you should insist on making up that time as part of your agreement.  There should be a specific plan for how you will make up the time before you reach an agreement on giving up time.


What do you do if you’re in a situation like the first hypothetical?  If your case has not been filed, then you need to file a case.  Of course, some men find this difficult because filing a case signals the end of the relationship. In my experience, that isn’t necessarily the case. Lots of times people will get back together even after they divorce, and then ask the judge to nullify the divorce (a right under Oklahoma law).  But let’s assume that filing a case does fully and finally end any hope you had at reconciliation.  While I can understand the catastrophic heartache that comes with the end of marriage or other romantic relationships, your children have to come first.  You have to ask yourself, is someone who impairs your ability to be in your children’s lives and spend time with them a good partner anyway?  I know that I’m oversimplifying, but I think most of the time it really is that simple.  If there is no reason that you can’t safely be around your kids (you don’t have drug addiction or domestic abuse problems etc.) then you should be adamant about your rights.  There’s an old adage that “justice favors the vigilance.”  I personally believe this to be true with regard to child custody rights.


Suppose you have a case that is is pending or already completed.  In this situation there is typically a visitation order issued by the court. If you have a visitation order, and the other parent refuses to allow or facilitate visitation, there are a few options you can utilize to enforce your rights.

First is what we call a Motion to Enforce Visitation.  The good part about this motion is it has a relatively short lifespan – usually not more than 20 days from the filing date to the date of your hearing.  If the court determines that your right to visitation was impaired or unduly restricted by the other parent, then you can get make up time for the time you missed, and potentially you can recover your costs and attorney fees for the case from the other parent.

Another option is seeking contempt charges.  When a parent violates a court ordered visitation schedule, we typically call this indirect civil contempt of courtIndirect contempt of court is a violation of the court’s orders which occurs outside of the courthouse, or outside the presence of the judge.  Contempt, or violating a court order, is a crime. Someone found guilty of contempt could potentially end up in jail or pay fines.  Because contempt is a crime, constitutional rights, such as a trial by jury, will attach.  There is also a necessity of having the defendant (contemnor) arraigned.  This adds additional time to the life of the contempt case.  If there is a jury trial, that time increases exponentially.  Even if the contemnor agrees to have a trial before the judge (a bench trial), you are still probably looking at a minimum of a few months before the trial takes place.  The benefit of contempt over a simple motion to enforce is the prospect of jail time is a very good motivator to change bad behavior.  Additionally, all the rights of time restitution and attorney fees etc. would typically be available in any contempt case the same as a motion to enforce.

My explanation of procedural mechanisms to address withholding of visitation is only a cursory explanation. If you have been having trouble getting visits, you need to speak with a lawyer right away. The process is complicated, and it will be very difficult for someone to prosecute a motion to enforce or content case by themselves without a lawyer.  Furthermore, as explained above, waiting can be very dangerous to your case.  There is a price for inaction which no father should ever allow himself willingly to pay.


Shaping a Compelling Trial Presentation.


Building a compelling case at trial involves shaping the case.  The shaping process begins before the case filing and continues through the life of the case.  Just like a long and dangerous journey, a trial requires knowing where you want to go and the best way to get there.  Here are some factors I believe are crucial to shaping a persuasive trial presentation.

1.  Decide what points are most important, then organize evidence supporting those points.

The whole point of law school is teaching “how to think like a lawyer.”  It means we learn to be razor sharp in determining which facts support a particular conclusion.  We then learn how to weave these facts into a coherent legal argument.  Clients sometimes don’t know which facts really support the point they’re trying to make.  It’s not because Clients are stupid, it’s just that divorce/child-custody cases inevitably have an emotional component which clouds judgment.

For example, in any given child-custody case, one goal is to prove that you are a fit parent.  Suppose you want to establish the fact that the mother wanted to have an abortion before your child was born.  It is easy to see the emotional importance of that fact, but does that fact necessarily support the idea that YOU are a fit (adequate) parent?  No it does not.  Another parent’s actions or prior acts/thoughts/words do not really affect the issue of whether YOU are a fit parent.  Moreover, even if this is true, does it mean that the mother is unfit?  Probably not.  The fact that someone wanted an abortion prebirth doesn’t necessarily mean that they won’t take care of a child.  At best it minimally advances the allegation that mother is unfit, very minimally.

It is often bad strategy to establish a fact that doesn’t help your case just because you want the satisfaction of having that fact aired in open court.  Doing so may lead the judge to think that you are more interested in humiliating the other parent than showing what custody decision is in the best interests of your child.  If your lawyer says that a fact you want to establish isn’t important, you should probably listen.  You may be too close to the situation to make that determination.  Furthermore, your lawyer should know the facts that support the points you need to make.

2.  Use proper time management.

Any case that ends with a trial has a long road that leads there.  There may be many hearings along the way.  Pretrial hearings usually are short, and the evidence presentation is minimal.  Court appearances always require good time management.  A pretrial hearing involves very little face time with the judge.  You have to choose which facts are most important based on the time allowed and the purpose of the hearing.  For example, I once attended a temporary order hearing where a wife used the little time we had to try and establish that her husband had been unfaithful.  Suppose that this were true.  Does that mean that the husband shouldn’t be able to spend time with their son?  Does it mean that the husband won’t properly supervise or protect their son?  Probably not.  The exasperated sighs and head shakes from the judge were not enough to convince the person to stop inquiring on this issue.  Judges are human beings, and like any human being, he/she may not be as sympathetic to you if you waste time.

Even if the fact you want to establish is helpful, there may be other facts that are MORE helpful, so you should concentrate your time around those facts.  Suppose the mother doesn’t keep a clean house.  However, she also has an anger problem.  Do you spend more time on the clean house point or the anger issue point?  Probably the anger issue.  Unless the house has roaches crawling over all the food and a mold infestation, an anger issue presents a more dangerous threat to a child.  At the very least you will need to leave enough time to adequately establish both points.

3.  Choose your battles.  

Choosing your battles involves choosing which battles to fight and when to fight them.  The other side may make allegations in a pretrial hearing or trial which you know to be completely untrue.  For example, suppose the mother alleges that you have a drug problem, which is untrue.  Do you invest a lot of time showing how she often lies based on past examples?  Probably not.  You go get a hair follicle test immediately after the hearing which shows no drug use over the past 6 months.  You choose not to engage on that issue but rather offer to produce evidence at a later date which disproves that allegation.  This is an example showing a proper choice about when to fight a battle.  Suppose in that same hearing the mother alleges you watch too much TV.  It is probably a good choice not to engage on the TV allegation but focus instead on the drug allegation.  In any child-custody case there are way too many accusations to respond and disprove each and every allegation.  You have to pick and choose the points that are most damaging.

Shaping a good trial is much more complicated than any blog article can explain.  However, if these points are utilized your case will be well on its way.

When are we going to settle?

When are we going to settle?  This is a question I get asked fairly often by clients.  Settlement is a voluntary resolution of a dispute, often during a lawsuit.  No one can make you settle.  The only way settlement works is if both parties agree on all issues of a case.  Even if a party’s position in a case is absurd, in most circumstances the Court would be obligated to hear each party’s side at trial if the parties can’t settle.

There are a lot of good reasons to try and settle your child custody or divorce case.  I will outline the reasons I think are most important below.

1.  Settlement gives you ownership over the outcome.

I hear judges say all the time that if he/she has to decide the case, then neither side will be happy.  That is true most of the time.  People put value on different parts of a case.  For some people, getting more visitation is more important than paying less child support and vice versa.  The judge will probably enter judgment, at least in part, against what you would prefer.  The judge doesn’t know you or the other party, so it is unrealistic to expect him/her to enter judgment exactly the way you want it.  You will often win on some issues but lose on others.  Judges often try to give and take from both parties.  Any kind of litigation involves a lot of uncertainty.  Sometimes you can be quite sure what the correct outcome is and still get a different result.  Settlement gives you control over the outcome.  A good attorney can negotiate a settlement that closely approximates the probable outcome at trial.

2.  Most of the time settlement is much cheaper than trial.

While most clients will say that money and cost are not the most important parts of case strategy, you still need to meet basic needs before and after a trial.  For every hour spent in trial, there are two or more hours of preparation.  For a trial that lasts one day (around 7 hours court time) that would be 14 to 21 billable hours on top of the 7 hours in court.  For an attorney charging $230 per hour (like me) that would be $4,830 to $6,440 for the trial, not including all the time it took to get a trial to begin with.  A good lawyer will be able to help you understand the potential pros and cons of a proposed settlement.  That way you can decide if it is worth it for you to spend the time and money involved with a trial.

3.  Settlement is faster than a trial.

For the average child custody or divorce case in Oklahoma County, you are looking at a minimum of one year from filing until trial.  This is because there are lots of other people with family law cases which take up room on the judge’s calendar.  Settlement would allow you to finalize your case as soon as 90 days after filing for divorce cases.  Closure is something most people want very desperately in child custody/divorce cases, and finalizing your case could help you on that path.

While the reasons outlined above are compelling motivation to settle, you should not settle for something that is significantly less beneficial than what you would get in court.  You’ll need a skilled and experienced lawyer to help you understand what your likely outcome would be from a trial so you can allocate resources accordingly.