The worst days are the days when we lose. And, look, the truth is that, sometimes, we all lose. In fact, I’d say that, in most cases, we feel like we almost always lose at least a little bit; that’s just the nature of divorce and custody.
Few cases are ones where the outcome is as simple as a win or a loss, but few is not the same as none. Some cases, usually the hardest cases, are the ones where there is a winner and a loser.
And, sometimes, even good moms find themselves the loser.
In general, I think a lot of the time, it comes down to the mechanics of abusive dynamics. An abuser is cool, calm, and collected, and that makes him able to prepare his case and look good doing it. He seems professional, respectable, even likable.
The abused person, though, isn’t so cool and collected. She might even be in a legitimate physical or mental health crisis point by the time her case is being litigated. She has probably moved, may have changed (or gotten) a job, or potentially even started a new relationship. (He may have a new wife or girlfriend, too, but let’s be real; we don’t usually judge men as harshly for this as a society.) Life, for the victim, is probably more challenging, rather than less, especially immediately post-separation, when the post-separation abuse and coercive control dynamics may be even more severe.
That doesn’t mean the judge, the Guardian ad litem, or even the attorney(s) involved in the case can see it clearly. After all, adding myself into this category because I am, in fact, an attorney, that is not where our training is. We’re lawyers. We’ve been to law school. Many judges didn’t even practice family law when they were actively practicing.
Am I going to lose custody?
If you’re here preemptively and you’re worried about an upcoming divorce or custody case, you know I can’t predict the future. But if it’s a big case – especially abuse or relocation – where the stakes are very high and it’s a winning or losing proposition, you’re right to be concerned and to take it seriously.
While it’s possible to represent yourself in any divorce or custody case in the Commonwealth, I would encourage you, especially if stakes are high, to find and work with an attorney who you can trust and whose judgment you feel you can rely on. Your attorney can’t predict the future, either, but a good offense is the best defense, to use a random sports analogy.
If you can’t afford representation, at least talk to an attorney to get an idea of what should happen. Even consider consulting with them several times through the process, whether you hire them or not.
Already have an attorney, but not sure about them? Consider a second opinion. Or even a third. Actually, if at any point you’re questioning what you’re being told, get a second opinion.
Respond to discovery and propound it on the opposing side. Establish a good relationship with the Guardian ad litem. Talk to your attorney to come up with who you may call as expert or lay witnesses and what evidence and testimony you’d want to introduce. Whether you’re in juvenile or circuit court, take it seriously and make sure you understand the process, next steps, and advantages and disadvantages of any choices you might undertake.
What if I lose my case anyway?
It happens, sometimes, that even a good mom loses custody. That’s actually the premise of this entire article. You aren’t alone and it doesn’t mean you didn’t put on a good case. It doesn’t mean your attorney didn’t do a good job.
There are no juries in family law cases in Virginia, so each and every case literally comes down to a judge making a decision. Judges, like regular people, make good decisions and bad decisions. Judges make mistakes. Judges can judge too harshly, can develop prejudices and, indeed, can come to the bench with their own prejudices and preconceived notions, which may or may not help you and the facts of your case. Judges are human.
Know your options. Know whether you can appeal, what that might look like, and what decisions you’ll have to make if it comes to pass.
Enlist the support of a therapist; ideally, you’d have a therapist throughout this entire process, but that’ll be especially important if an unexpected outcome throws you for a loop. You need to be as physically and mentally well as possible, so take steps to make sure that this is the case.
What if I’ve already lost?
Let’s say you lose. Your kids are relocating, dad gets primary custody, you lose a ton of money, don’t get the support you deserve, or something else.
Will you appeal? Talk it over with your attorney.
Will you be able to modify? Challenge the order, by filing something like a motion for reconsideration? Sometimes, we can plan for these things ahead of time, but, other times, we just have to wait and see and then react if it happens. No matter what, you can appeal a juvenile court ruling to the circuit court for a trial de novo. If there’s a mistake of law (versus a mistake of fact), you could consider an appeal from the circuit court to the court of appeals.
Some things can’t be changed – usually, equitable distribution can’t – and other things can be modified over time, like support or child custody. Sometimes, it’s best to think of things as a marathon, rather than a sprint. However disappointed (or angry or terrified) you might be, talk strategically with your attorney about next steps.
Don’t feel you were well represented? Or worried that your attorney could have done something better, or should have done something better? Of course, like judges, attorneys are human, too. We make mistakes. If you’re wondering, still get a second opinion. Prepare for the next steps.
What if nothing changes ever and I have to live with a terrible outcome?
Again, therapy.
We all know: the system isn’t perfect. And, sometimes, there isn’t something we can do about it. That’s a risk you take when you litigate; you ask the judge to make a decision, and sometimes that decision is a terrible one.
One that has lifelong implications for you or, worse, for your children.
Sometimes, there isn’t just a next step or a next thing you can do. You should always ask, discuss with a trusted attorney, strategize, and make the best decision possible – but, sometimes, the best decision isn’t to continue fighting. Sometimes it is, but sometimes it isn’t.
You can work towards legislative change, if you want to get involved and change things for others in the future, but that also may or may not be successful. It’s impossible to predict ahead of time, but there are many involved in the family law space trying to work to improve outcomes in family court.
And continue on in therapy, because you have an entire life to live independent of this case, even if it doesn’t feel like it today.
Good moms do, sometimes, lose custody. It’s terrible, but it happens. You aren’t alone.
If you want to discuss your next steps, get a second opinion, or schedule a consultation now, give us a call at 757-425-5200. Looking for free ways to get more information? Check out our library for more resources like this, the HofLine for podcast episodes on relevant topics, and our free custody book for Virginia moms.