8 Commandments of Custody Cases

Custody and visitation cases are some of the hardest cases in family law, because so often there really isn’t a way to win. You’re fighting with someone you used to love, on top of the fact that you’re fighting about your children—and, let’s face it, usually children really aren’t oblivious to all the fighting going on. You worry about the decisions you’re making and how they’ll affect the people your little ones turn out to be. You know that your chief concern is their best interests, but it’s a lot more difficult than you thought it would be. Who knew that you and your child’s father would have such radically different ideas about what it takes to raise a child? And why doesn’t he realize how harebrained his ideas really sound? You want to push really hard for what you feel, deep in your heart, is right for your children, but you wonder whether that’s really the best course of action to take. After all, anything relating to custody, support, or visitation is always going to be modifiable by the court anyway, so until your child reaches the age of 18, you and your child’s father will be growing, changing, and adapting the way you co-parent together. Whether you do it kindly and with respect for each other or whether you do it grudgingly with animosity towards each other is really up to you, but the fact remains that the details are temporary and always subject to change.

Not only that, but the simple act of taking each other to court over and over again (or even just for the first time) is disheartening. It’s hard on you, it’s hard on the kids, and it’s probably pretty hard on your child’s father, too. You’re fighting for something that you’re particularly passionate about, and you’re trying to get the judge (and your attorney and your guardian ad litem, if you have one) to understand that the rules and boundaries you’re setting are reasonable and necessary. After all, you’re the mom and you know best, right?

The way you’re feeling is understandable. It’s not just understandable, it’s predictable. It’s the way moms have felt about their children since the beginning of time. It’s archetypal. It’s the inimitable “mother bear” thing coming out. It’s normal, and it happens to the best of us. Something about feeling like our kids are threatened in some way, and it really does bring the worst out.

Sometimes, though, especially when you’re facing a custody case (which may or may not also include a divorce), you have to force your mama bear instincts to take a back seat. It’s not easy to do. In fact, in a lot of cases, it’s completely counterintuitive. Still, what comes naturally to you and what the judge wants to see from you are probably two completely different things. It’s important that you know, ahead of time, what to expect and how to behave, so that you don’t make any missteps that could hurt your case later on. It’s definitely not enough to just assume that you can follow your instincts and just be a good mother; you need to carefully prepare for a custody case, and govern your actions accordingly.

That’s why I’ve created this list of 8 cardinal rules for Virginia moms facing custody cases. It’s not everything you need to know, but it’s a great start and will help you make sure you behave the way you should be behaving when the eyes of the people who will ultimately make major decisions about the care and custody of your children are upon you. (Trust me, they’re watching you. They’re watching you carefully, and making decisions about you.)

1. Remember that the standard the court is considering (and, similarly, so should you) is the “best interests of the child.”

What is, in your opinion, in the best interests of your child may be different than what the judge or the guardian ad litem thinks is in the best interests of your child. Most people come to the table with different ideas about what is truly in the best interests of any child, so there is a lot of ambiguity here. How do you know what to do or say, though? You look at the statute, which identifies ten key factors as being relevant in determining what is in the best interests of the child. Maybe these factors aren’t as all-encompassing as you would like them to be, or maybe they miss out on a key factor that you would have included. Still, read them, learn them, and be able to discuss, in detail, how you meet and exceed the criteria identified in the statute. Be comfortable discussing them along with your plan for raising your child. Here they are:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Like I said: read them, learn them, love them. Be able to discuss them. As far as the court is concerned, these factors are what are involved when you determine what is or is not in the best interests of a child.

2. When you talk about your children to your child’s father, the judge, the guardian ad litem, and even your attorney, you should take pains to say “our children,” rather than “my children.”

Judges are listening for this kind of thing, and won’t be impressed by you saying things that make it seem like the children belong more to you than your child’s father, or like you don’t take his role as a co parent seriously.

Similarly, unless your child’s father is abusive, you should make sure to have a photo of your child’s father in your child’s room. Support the child’s relationship with the other parent by the way you talk and the way you behave.

3. Make sure that you never, ever speak disparagingly about your child’s other parent in front of the child.

Anything negative that you have to say about your child’s father should be said to your therapist, or possibly some of your trusted friends and family members. It’s not fair to your child to have to shoulder the burden for the divorce and/or custody case. To the fullest extent possible, you should keep your child out of it entirely. It’s not fair to your child to hear these negative comments; obviously your child loves his or her other parent and wants to have a relationship with him. When your child hears these things, it damages their relationship with you and with the other parent, especially if what they’re hearing doesn’t really make sense based on their experiences. What is a child left to think? Either that you’re lying, or that dad really is that bad. Either way, it’s not fair at all to the child. It’s just not fair to burden the child with your emotional baggage.

Not only that, but if you make it a habit to make deprecating comments in front of your child, it’s likely to come out in conversations with the guardian ad litem, and then you can bet that the judge will hear about it. This makes you look catty, emotionally unstable, and unable to put the needs of your child ahead of your own feelings. It definitely won’t help your custody case!

If your child asks you a question and the honest answer would require you to say something less than flattering about your child’s father, defer the question until you can talk to your child’s therapist, your own therapist, or your attorney about how to respond.

4. Allow your child’s father to parent the child his way, too.

You can’t really expect the court to openly prefer one parenting method over another. It’s not unusual or unexpected that the two of you have completely different philosophies about how to raise your children. You probably have different rules, punishments, reward systems, and ways of treating the children that are entirely different from the way your child’s father chooses to do things. Maybe these differences weren’t as pronounced when you were together, but once you separate, the differences often start to take on a really different meaning in the minds of the two seemingly opposite parents.

The court believes in the ability of a parent to participate in and make decisions about how they want to raise their children. No two parents do it exactly the same, and that’s especially true when two parents are no longer presenting a unified front. You’ll have to talk to your ex and work together as much as possible, because the court won’t tell you that you have to do things a certain way. Those types of disagreements really aren’t the kind that will be settled in front of the judge. If you can’t work together and communicate with your child’s father, you may have to talk to a children’s mental health expert or someone similar to help you work through your specific issues.

5. Don’t restrict your child’s father’s access to the child.

It looks VERY bad to the court. (Go back up to the list of the best interests of the child factors, and read factor number 6.) This is probably the biggest reason a father would win custody. If you restrict dad’s access to your child, it will only hurt you in the end.

6. Don’t introduce your new boyfriend to the child, and encourage your child’s father to refrain from introducing new girlfriends right away, especially if you’re not divorced yet.

If you have a custody case pending, introducing your child to your new romantic interests can be disastrous for your case and damaging for your child. Just don’t do it!

7. Never deny visitation because you haven’t received a child support check.

In the eyes of the court, these two things are not connected. The court will think that you are unreasonably denying access to the child (see rule number 5), even if he hasn’t been paying support. Talk to your attorney about other methods for getting your child support payments. There are lots of resources available to get nonpaying dads to pay child support.

8. Finally, you should remember that custody cases are about the children, and not about the fault of your child’s other parent.

The judge isn’t going to want to come into court just to hear the two of you bash each other. Instead, the judge wants to hear you discuss the best interests of the child factors, talk about how you plan to work with your child’s father, and use words like “co parenting,” and “parenting time,” rather than “custody,” and “visitation.” Show your maturity and your interest in your children by carefully selecting your words both in and out of the courtroom.

These 8 rules will definitely get you started, because they summarize some of the most important points that we see in custody cases. Avoid making common mistakes by reading these points, making note of them, and using those best interests of the child factors in your arguments in front of the court. Remember that parenthood is a long road, and two parents almost always have to walk it together, regardless of whether their relationship is still in tact. You will be better, happier parents if you can work together when it comes to your children, rather than fighting tooth and nail over every single issue as it arises. To get some advice about your custody case or find out what options are available to you, especially if cooperating with your child’s father just isn’t an option, give our office a call at (757) 425-5200.

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