How to Avoid Common Pitfalls in a Child Custody Case

It is an unfortunate reality that dissolutions involving children from the marriage can be the messiest variation of the dissolution process; even messier than a high-conflict dissolution involving substantial assets. It is important to bear in mind that the custody determination is motivated by the child’s best interests. As such, it is your best interest to not only affirmatively demonstrate that it is in your child’s best interest to remain with you, but also to avoid inadvertent conduct, which could be used to show that it would be detrimental to your child to remain with you. This article will address common pitfalls that parents encounter while requesting the Court to make custody determinations.

While many of these pitfalls should trigger your “well obviously” alarm, keep in mind that these occur frequently enough that an entire article had to be written about them.

1. Conduct Yourself as a Responsible Adult, at All Times

Dissolution is rarely a pleasant experience; you and your spouse are separating for a reason – reasons that were clearly irreconcilable. The process becomes exponentially less pleasant when the custody of your children is at issue.

Judges are aware that these situations are volatile in nature, and generally give parents a little leeway in how they conduct themselves at Court proceeding in relation to their ex-spouse; there are limits to this leeway however. In a round-about way, how you respond to high-conflict-stress reflects on how a Judge will perceive your abilities to properly parent and co-parent; something that is certainly included in determining a child’s best interests.

No matter how offensive or confrontational your spouse is, in and out of Court, you should always seek to take the high-road. This means never get close to a physical confrontation with your ex-spouse, never threaten your ex-spouse, and never express your anger in front of your child. All of this conduct could result in a denial of your request for custody and conditions on your visitation rights (i.e., supervised visitation). 

Your responsibilities are not limited to the Court, you should always conduct yourself as a responsible adult in order to improve your chances that the Court will determine that it would be in a child’s best interest to remain with you. This means avoid posting photos on social media of you participating in irresponsible conduct, your ex-spouse will find it.

Example: Mary, who currently has custody over her daughter, likes to go out with her friends. Moreover, Mary frequently shares photos of her nights out with her friends. Over the course of 5 days, Mary posts several pictures of her smoking marijuana and drinking alcohol with her friends. Dan, who is seeking to modify the custody order to gain custody over his daughter, prints out these photos and shows them to the Court arguing that Mary would rather go out and get drunk all week than raise her daughter. The Court orders Mary to submit to drug testing and a condition of her custody.

While this is an extreme example, the point should be clear; what you post on social media will be used against you at some point.

1. Always Be Current on Your Child Support Obligations

Courts in California are very strict about parents meeting their support obligations to their children and will frequently use non-payment as the basis for significant restrictions on custody and visitation rights.

It is critical that you make timely child support payments every month. The Court will not show you leniency if you argue that the payments were too high after-the-fact. If the payments are too high, or your circumstances have changed, you must file a motion with the Court to modify your support obligations. The Court will work with you, if you give them a reason for why the support amount is to high, particularly where you can show that you have made significant efforts to meet those obligations. In custody cases, doing nothing and hoping for the best will never turn out well.

1. Always Communicate With Your Spouse Regarding Vacations

As mentioned at the outset, chances are you do not get along with your ex-spouse. It is natural to avoid communicating with them when you can, as there is a good chance it will devolve into an argument. Pair that with the flawed reasoning that they’re my children too, and it is easy to understand why parents frequently take their children on vacation (during their time with the child) without informing the ex-spouse; do not do this.

The Courts are concerned that a parent may use a surprise vacation as a pretext for kidnapping the child; it happens frequently. Similar to (2) above, the Court will not extend any leniency to you if did not even try to inform your ex-spouse and obtain consent for a vacation. The penalties could be incredibly harsh as well – you may even lose custody and be forced to submit to supervised visitation.

1. Always Respect the Court’s Determination

As is clearly the case, you or your ex-spouse are not going to be happy with the Court’s determination. What is truly mind-boggling, is that some people simply disregard the Court’s determinations when the outcome is unfavorable to them; do not do this.

As an initial matter, a Court order has the full effect of the law; your opinion on the matter is wholly irrelevant until another order is made. Therefore, it is critical that you comply with the Court’s order down to the smallest details. Failure to comply with the Court’s order could subject you to civil (or criminal) contempt, sanctions, and ultimately unfavorable rulings in the future.

Remember, you want the Court to understand that it is in your child’s best interest to remain with you; the Court is unlikely to believe that if you are unwilling to comply with their orders.

1. Don’t Forget Your Children Need You To Put Them First

As mentioned above, dissolutions involving children are very messy. Parents frequently feel like their entire world is falling apart; the stability of a spouse is gone, your finances are in limbo, and you don’t even know how often you will get to see your own child.

You can’t allow this turmoil to impact your ability to put your children first, a divorce is an even scarier reality for them – children depend on stability, and nothing is less stable than having their parents separate.

To that end, you don’t need to like your ex-spouse, but keep in mind that your ex-spouse is also going to be involved in raising your children going forward. You will need to show the Court an ability and willingness to co-parent with your ex-spouse, or the Court may deny custody to you.

This does not mean that you need to be friends with your ex-spouse, it simply means that you need to respect that they are also important in your children’s development. As such, it is essential that you refrain from attacking your ex-spouse’s character in front of your children. Further, always allow your ex-spouse their visitation time, regardless of whether they are in compliance with their obligations; the proper process is to inform the Court of their non-compliance and seek a modification to an existing order.

1. Don’t Forget the Status Quo

The Court’s primary concern is the best interest of the child, and it is generally accepted in the psychology of children that a stable living situation is critical. Thus, the Court pays very special attention to the status quo when making their custody determinations.

If the situation seems to be working well, with no significant negative impact on your child, the Court will be incredibly hesitant to issue an order changing the situation.

Example: Sam, the son of Mary and Dan, has been going to school with the same group of kids for the last 10 years. After the dissolution, Mary is planning on moving to another district, which would require Sam to change schools. Sam had straight A’s, a large group of friends, and was involved in numerous after school activities in the area. Mary is unlikely to be awarded custody in this situation, because the Court does not want to upset a situation that is benefiting the child.

The take away from this example, is that if something becomes the norm and doesn’t harm the child, the Court is likely to enshrine that norm in a Court order.

1. Don’t Forget That You and Your Attorney Are on the Same Side

Child custody is not the type of situation where you should represent yourself, the stakes are simply too high. To that end, conduct research and don’t be afraid to ask potential attorneys the hard questions – they appreciate a client who takes their case as seriously as the attorney will. \

There will be times where your attorney has to inform you of unfortunate truths and make suggestions that will be difficult and unpleasant to comply with. The lawyer is not doing these things out of malice, they are doing it to help you obtain the best outcome possible. Never lie to your attorney. California has the strictest attorney-client privilege rules in the country, and nothing you tell them will be conveyed to anybody else. Your attorney is not there to judge you, they are there to assist you.

If you are contemplating a dissolution involving children, please do not hesitate to contact us at (209) 910-9865 for a consultation.