In Your Virginia Child Custody Case, Forget Fair

It’s a tough pill to swallow, but it’s a truth that you should accept, and the earlier the better. Custody cases are not about fairness.

There are lots of things about custody cases that are “unfair”. It’s not fair that he can petition, over and over again, for a modification based on a material change in circumstances. It’s not fair that, if you win at the juvenile court, he can appeal to the circuit court. It’s not fair that he can ask for a GAL or a custody evaluator to be involved, who will interview you and your children and make judgments about what’s best for your family. It’s not fair, in short, that much of what he’s doing probably amounts to deliberate abuse, at least financially. Not to mention that it’s completely unfair to the children to have to go through this over and over again, or that you feel like there’s virtually nothing you can do to protect them from it.

It’s not fair. It’s not about fairness. And him operating within the law – for the various modifications and/or appeals or whatever – is not something that will ever be addressed. Though I understand your frustration, the laws ARE there for a reason. That’s not to say that he can’t abuse them for his own purposes (most manipulators or narcissists are able to do that, at least in the short term), but you’ll be grateful for them if and when the tables turn later on and you find that you need to bring your own petitions.

It’s important to keep your expectations reasonable. Know what your attorney, the Guardian ad litem, and the judge are able to do. I hear fairly frequently that women want their “day in court” and that they think that the judge will listen to them tell their story and then stand up for them.

…That really doesn’t often happen. In fact, in most of the cases I’ve had, I feel that the judge either gives no type of preference to either party, or seems to prefer the losing party. It can be hard to judge when your case is going on, but often I find that the judge seems more sympathetic to the losing party – and more inclined to let them drone on and on.

Why would a judge do that? Why give more attention to the losing party?

Well, the answer is really quite simple. While it may not feel good to you (and may make you feel like the judge is conspiring with your child’s father against you!), judges often let a losing party go on and on in an attempt to make them feel that they were heard. Parties who feel heard, whether or not they win their case, often feel validated, and are less likely to appeal or to bash the legal system.

Judges don’t like to get overturned on appeal. They don’t like unhappy people bashing them. So, in a lot of cases, they’ll really hear a party that they intend to rule against.

It’s frustrating while the hearing is happening, especially if you’re trying to get a word in edgewise. It can feel like the judge is favoring the other side; in a certain sense, it’s an accurate way of looking at things. The judge shows them a little bit of extra leeway in an effort to make them feel heard and their opinion feel valid and considered.

It doesn’t feel good to you. In fact, you can feel certain that you’re going to lose – up until the moment the judge issues his or her ruling.

If custody cases are not about fairness, what are they about?

All custody cases are about one thing: the best interests of the child. It’s not about what’s best or easiest for you, or what’s best or easiest for your child’s father. It’s about those ten custody factors and how they relate to your children. It’s about coming up with a custody and visitation agreement that, to the largest degree possible, allows you and your child’s father to stay involved in the child’s life.

While you have some freedom with what you agree to in a written agreement, there’s not so much latitude in court. In cases where custody is litigated, I see a LOT of shared custody (meaning that the non custodial parent has 90 or more days with the child in a calendar year) awarded. That’s not to say that shared custody is always awarded, but there’s definitely a higher proportion of shared custody cases.

The way the court sees it, it’s often in the child’s best interests to have both parents be involved. If you want to argue that some other arrangement is most appropriate in your case, you’ll have to gather evidence and offer witnesses to demonstrate that this is not in the child’s best interests. But be careful – demonstrating that you are the parent who is unable or unwilling to coparent can result in a different custody arrangement than what you’d prefer, especially if his case in chief is spent telling the court how willing he is to promote the relationship between you and the children. It’s always a good idea to work with an experienced custody attorney on your case strategy.

He’s being so manipulative! How do I combat it in court?

A good thing to keep in mind? Given enough rope, a narcissist will often hang himself. Sure, his behavior is likely manipulative and abusive, and probably no one but you can see it quite so well. In many cases, I’ve had clients tell me about something that their child’s father says or does that, to anyone else, would seem like no big deal – but, to them, is a signal that he intends to fight dirty.

I had a client once who told me that her child’s father deliberately wore the tie that he wore to their wedding to court. To anyone else, it just looked like he wore a tie to court. To her, though, it felt like a subtle message of dominance and awareness of what he was doing to her.

If you’re dealing with PTSD, depression, anxiety, or mental health related concerns during your custody case, it’s best to seek professional help. In addition to an attorney, having a therapist or victim advocate on your side who can help you work through some of your feelings in a productive way can be extremely valuable. After all, this really isn’t a service that an attorney can provide – or, at least, not with any particular skill (and, besides, we don’t take insurance). But dealing with what you’re going through mentally and emotionally can put you in a stronger place, so that walking into court and seeing him wearing his wedding tie will be something that you can let roll right off your back. It’s not easy, and it’s part of a long-term process – but it is do-able, and you’ll want to make sure you’ve taken the steps you need to take to protect yourself, both now and in the future.

For more information, request a copy of our custody book for Virginia moms, get more information about our custody seminar, or give us a call at 757-425-5200 to schedule an appointment.

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