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.