Why Good Moms Lose Custody

I’ll let you in on a secret: good moms lose custody.  It doesn’t happen all the time.  It doesn’t even happen most of the time.  But, sometimes, good moms lose custody.

Yes.  Seriously.  Sometimes, it happens that, even though a mom is a good mom, she loses custody.  Why?  Well, it really all depends on the unique factors in each case, but there are some similar themes we tend to see among cases like these.

How are custody cases decided?

When custody cases are litigated (meaning they go in front of a judge to be decided, rather than being agreed upon between the parties), judges use the best interests of the child factors to determine what’s most appropriate for the children.

The best interests of the child factors

All states have some kind of version of these “best interests” factors, but they do vary somewhat from state to state.  If you’re preparing for a custody case, you’ll want to know and understand these factors – after all, it’s what you’ll base your entire case on!In Virginia, there are ten best interests of the child factors:

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.

So, why would a good mom lose custody?

Good moms lose custody for all sorts of reasons.  Here are three of the most common that we see:

1. They deny dad access to or visitation with the child.

So, remember those best interests of the child factors?  I told you they were important, and they are.  When moms ignore the best interest factors, there can be disastrous consequences—like losing custody.In this scenario, we’re talking mostly about factor number 6.

Specifically, the court wants to see that you actively support your child’s relationship with his father, and you encourage that relationship to develop.  Of course, that’s not something that you can do if he’s a total deadbeat, but if your child’s father wants to be involved and you make it virtually impossible for him to see the child, you are running a pretty big risk.

I can see how it could happen.  He asks for time, and you don’t want to give it.  It’s inconvenient.  You had other plans.  You just…don’t feel comfortable.  The child isn’t old enough.  Whatever the case may be, you just don’t feel right about it.  And so you tell dad no.  And it happens over and over and over again.  Dad gets fed up.  He starts to feel like no matter what he asks for, you’ll tell him no.  He files for custody.

You’re running a big risk, because the court could find that you’re unreasonably denying dad access to the child.  If the court feels like dad will work harder to ensure that both of you have time with the child, you could potentially risk losing custody.  One of the biggest mistakes moms make is that they try to hold on to their children a little too tightly.  It’s a mistake that’s easy to make, especially for a mom!  Who doesn’t want to hold on tight?  After all, they’re only little for a little while.  But, still, it’s not something courts like to see, and it’s a way we often see good moms lose custody.

2. They make an enemy of the GAL.

I hear it all the time: “The Guardian ad litem hated me.”  “The Guardian ad litem had it out for me.”  “The GAL didn’t even TALK to me!”  “The Guardian ad litem liked him better from the start.”  Whatever it is, it’s super duper common to hate the GAL.Guardians ad litem aren’t involved in cases to make friends – they’re there to help make a recommendation to the judge regarding custody and visitation.  So, obviously, they’re not really your best friend in the entire world.  They have a lot of power, and they barely know you or your kids.  That’s not a good feeling.  Still, one of the biggest mistake moms make is that they treat the GALs poorly, or they spend all of their time with the GAL bashing dad.  Again, courts want to see that you’re willing to foster the child’s relationship with dad, not that you have a passionate hate for him and are willing to tell perfect strangers pretty much everything that’s wrong with him. It’s a fine line to walk, but working with the GAL is key to success in your custody case.  Messing up that relationship can be a big problem later on down the line, when it comes time for the GAL to file her (or his) written recommendation with the court.

3. They try to represent themselves at their custody trial.

Yes, you can represent yourself.  It’s totally allowed.  And, at the juvenile court, the clerks will often help you file petitions and answer some of your procedural questions.When you get in front of the judge, though, all bets are off.  Especially if he has an attorney, you may find yourself up the proverbial creek without a paddle.  You may be in over your head.  It may be hard for you to get your evidence admitted, or to question and cross examine witnesses (let alone be cross examined yourself).

It may be hard for you to structure your case in a cohesive way, and to address the points that are most important to the judge.  Hey, it’s not easy!  Litigation is hard work.  It’s a skill that most attorneys learn over years and years of practice, and with much less emotion involved than you’re already dealing with.  We can be calm and objective; we can make rational arguments.  It may be difficult for you, since custody of your kids is at stake at this particular trial.  You may not present to your best ability, and, in a lot of cases, there’s a lot riding on how the parties present themselves in the courtroom.

If he alleges that you’re a crazy b-word, your behavior will show the judge how true or false that allegation is.  The judge is always watching, and making decisions based on what he sees.Custody cases are hard, and good moms lose custody every single day.  Not a week goes by that we don’t end up with a consult with a mom who has just recently lost custody, and she’s beside herself.  Usually, they tell me that they did one of these three things wrong.  (Well, they don’t always know it, but that’s the gist of what they’re telling me.)  If you’ve got a custody case coming up, you’ll want to take steps to make sure that you’re in as strong of a position as possible before you walk into the courtroom.  For more information on custody cases or to make an appointment with one of our attorneys, give our office a call at (757) 425-5200.

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