How to LOSE your Virginia custody case

Posted on Sep 23, 2015 by Katie Carter

On Monday, we talked about what you need to do to make sure you WIN your custody case.  If you haven’t already had a chance to read it, you definitely should. Today, I’m going to tackle the other side of the issue: what kinds of things can you do to make sure you’ll LOSE your custody case.

Custody cases are about as high stakes as it gets for us in family law. We handle all sorts of other important business, too, but custody cases are definitely the most emotional and volatile part of our practice. As a mom facing a possible custody case, you probably know all about that. It’s awful to worry about what’s going to happen as far as custody of your children is concerned, and it’s even worse to feel like you have little to no control over the direction your life (and theirs!) is currently taking. Regardless of whether you were married to your child’s father, there are a lot of issues that come up uniquely in custody cases. It’s important to remember that the things that you do (and don’t do) can all contribute to the outcome, whether it’s what you want—or what you’re dreading. There’s a lot that you CAN control, and it’s a good idea to focus your energy on the positive pieces (the pieces that you control yourself).
Still, custody cases are unfamiliar territory for most people. They make lots of mistakes along the way, because they are so emotional and so worried that they (almost) can’t help it. They also don’t realize the real-world consequences of their actions at the time.

As important as it is to know what you can do to win your custody case, it’s important to know what you’re doing that might cause you to lose your custody case. If you want to lose your custody case, by all means, go ahead and do all these things. If, like I suspect, you’d really like to WIN your custody case, read my blog from Monday here, and make a mental note NOT to do any of the 6 terrible, horrible, no good, very bad things I’ve listed below.

1. Take the child and run.

When I talk to moms, they usually tell me that this is their greatest fear: that dad will take the child and run. Still, many of them, now that their relationship with the child’s father is over, dream of relocating themselves. Whether it’s to move back home to be near family or because of a job offering somewhere else, when things don’t work out, many people desire a change of scenery.

Technically, until you have a custody order in place that provides a specific custody and visitation schedule, you’re free to go wherever you like with the child. Still, that’s pretty risky behavior. (Not to mention, imagine how you’d feel if your child’s father did it!) What do you risk? Well, if you leave with the child, and then your child’s father files custody and visitation petitions, you risk the judge ordering you to come back. Not only that, but judges are sometimes pretty annoyed by that type of tricky behavior, so you risk poisoning his feelings about you at the same time. Is it worth it? Probably not, in my opinion. Sure, it’s possible that you could go and establish residency there, and everything would be fine. But if you don’t, your case can turn into a big mess really fast.

My advice? If you’re serious about relocating, talk to an attorney as soon as possible to come up with a plan. You may not like what the attorney has to say (in fact, you probably won’t), but, if you’re going to go anyway, you should go knowing all of the potential consequences that could arise. Is it worth losing custody?

2. Don’t let dad see the child.

Again, technically, if there’s no custody order in place, you don’t HAVE to do anything. (If there is a custody order in place, you better follow it!) If there’s no specific visitation, or if your order says something like “reasonable and liberal” visitation, you should beware.

When judges make decisions regarding custody of minor kids, they do so using the ten “best interests of the child” factors. If you’re interested in reading all ten in all their glory, click here. (LINK to MONDAY) For the purposes of this discussion, only one factor is important. It’s factor number 6, and I’ve heard it referred to as “the mom’s downfall.” It says that the court will consider, as a factor affecting a child’s best interests, “[t]he 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”.

I can’t tell you how many cases I’ve heard of where a dad accused a mom of unreasonably denying visitation. And judges listen!

I know, it’s tempting, when your child’s father asks you for time with the child, to say, “That time really isn’t good for us,” or make some other excuse. And maybe it really isn’t a good time. But the better course of action would be to say, “I’m really sorry, but Monday is no good. How about Wednesday instead?” If you can do it in writing, even better.
Likewise, if he asks you for something you’re not comfortable with (like, for example, dinner at Hooters with the new girlfriend and her kids), it’s a better idea to suggest an alternative than say no entirely. “I’m not sure about Hooters,” you could say. “Or Heather. But if you wanted to take him to kid’s night at Chick-fil-A this Wednesday, that would be fine by me.”
Denying dad access to the child can backfire bigtime, even if you don’t have an order in place that specifically requires visitation. Remember: you’re supposed to support dad’s relationship with the child.

3. Insist that child support must be paid before visitation can occur.

I know you’re depending on child support, and it’s so frustrating when he doesn’t pay it. After all, you need that money for important things! Still, the court will not be sympathetic if you deny visitation just because your child’s father hasn’t paid support.
He’s legally required to pay child support, and there are methods of enforcing this obligation. You are not entitled to deny visitation as his punishment for failing to pay. If your child’s father isn’t paying child support pursuant to a court order or agreement signed between the two of you, you should talk to a lawyer about your options for enforcement.

4. Be rude to the Guardian ad Litem.

The Guardian ad Litem is an attorney, usually one appointed by the court, whose job is to represent the child’s best interests to the court. The GAL usually, before trial, writes a report for the court that includes his or her recommendation for custody.
Judges rely very heavily on GAL reports. Even though the GAL doesn’t, technically speaking, have to make a recommendation for one parent over another, most of the time they do. As you can probably already tell, the Guardian ad Litem is a person whose influence over your case is very, very strong. As such, you probably don’t need me to tell you that one of the worst things you can do is annoy the GAL.

By his (or her) very nature, the GAL is invasive. He (or she) will ask lots of questions about your relationship with your child’s father and your parenting style. He (or she) will probably make a home visit, and do things like look into bedrooms, closets, and even your refrigerator. He (or she) will talk to your child and try to glean information that will help him (or her) make a recommendation to the court. It’s invasive, and there is no question it’s a difficult experience. The GAL is judging you, quite obviously.

Do not offend the GAL. Be nice to the GAL. Do NOT give him (or her) any ammunition that could be used against you in court. Don’t trash talk your child’s other parent. It may be tempting (and the GAL will probably ask questions that lead your towards unflattering answers), but it will probably only make you look bad. The GAL is not your friend, but someone that you should treat with kindness and respect—even if you receive a report from him (or her) that isn’t flattering. Remember: the trial isn’t over until the judge has issued a ruling. The GAL, although important, is not the judge. Don’t react in a way that will make matters worse.

5. Roll your eyes, suck your teeth, and shout, “He’s lying!” in court.

In-court behavior is important, whether or not the judge on the bench. You would do well to remember that judges have eyes in the form of their clerks and bailiffs, in addition to what they witness on their own.

When you behave badly in court, it reflects badly on you. For a judge, it is his job to listen to your case, so he is bringing with him a sense of duty and professionalism. For a lot of judges, it is difficult to understand unbridled emotion in the courtroom. They don’t feel emotional about it at all, and uncontrollable sobbing, yelling, eye rolling and teeth sucking makes them uncomfortable—and also makes them view you in a less than flattering light.

Whatever you hear in court, or whatever your child’s father says on the stand, you shouldn’t react dramatically. Huffing and puffing, furiously scribbling notes to your attorney, and muttering under your breath, while understandable, is really not tolerated.

Your behavior reflects poorly on you. I know it’s difficult, but you’ll want to keep your composure. A really good way to lose your custody case is by behaving badly in the courtroom. Even if the judge doesn’t seem to be watching—he’s watching.

Along similar lines… After the judge announces his ruling, especially if it’s one that’s favorable to you, get out of the courtroom—fast. When I first started practicing, I remember one of my mentors saying that you could easily “snatch defeat from the jaws of victory” by hanging around too long. Excessive celebrating or other bad behavior can result in the judge changing his mind on the spot. Say, “thank you, your honor,” collect your things, and get out of there. Fast. Once you’re gone, the judge can’t revisit his ruling. Celebrate in the hallway or the parking lot.

6. Talk badly about your child’s father in front of the child.

Judges want to believe that you’re doing everything in your power to facilitate the child’s relationship with his or her other parent. We touched on this a little bit earlier, but it’s about more than just making sure the child has the opportunity to see the other parent. You shouldn’t be doing or saying anything that would damage that relationship, including smack talking.
I know. It’s hard. You’re angry, and he’s doing jerky things. And it’s easy to say, “Oh, he’s just a child, he doesn’t understand what I’m saying.” That may be true, but, in a lot of cases, children, even babies, are more aware than you might think. Even if they don’t understand all the words, they understand tone. They can sense frustration, and it’s easier for them than you might imagine to surmise the source of that frustration. It’s a better practice (and a better habit) to resist talking badly about your child’s father in front of the child—ever. It shouldn’t matter whether the baby is 2 weeks or 2 years or 20 years old. If his or her father is a jerk, the kid will figure it out. And, if not, he or she deserves the chance to have as good of a relationship as possible with his or her other parent.

If you’re found to have alienated your child from his or her father, it won’t bode well for you. It’s another great way to lose your custody case.

There are tons of creative ways to lose your custody case, and I’ve summarized 6 good ones for you here. If winning is your intention, though, you’ll want to view this list as things NOT to do. To figure out how to win your case, read this post by clicking here, or give our office a call at (757) 425-5200. We can help you set up an initial consultation with one of our trained and experienced custody attorneys or give you more information about our innovative seminar, Custody Bootcamp for Moms.