This essay was written for lawyers in April 1997. A lot has changed since then, but the basic ideas are still true!
HOW TO WIN CUSTODY FOR DAD
Joshua Foreman
The parable of the hungry bear
Bill Clinton and Al Gore are out walking in the woods one day, when they see a hungry bear running towards them.
Of course, they start running away from the bear, but the bear is a lot faster, and is catching up quickly.
"Bill," says Al Gore, "what are we doing? We can't run faster than that bear."
"Al," replies Clinton, "I don't have to run faster than the bear; I only have to run faster than you."
This old joke captures the essence of a child custody fight. The children in a custody fight almost never end up with a third party or in foster care; almost certainly one of the parents is going to win custody, and to win, Dad doesn't have to be perfect, he just has to be better than Mom.
How to win, in a nutshell
Most lawyers approach a child custody fight as just another lawsuit or else as a mud-slinging contest, but both approaches are wrong.
Slinging mud doesn't really do much to help the judge decide which party will be the better primary residential parent, and a custody fight is fundamentally different from a typical lawsuit because the range of outcomes is very limited, as opposed to the usual continuum of possible money judgments in a garden variety lawsuit.
Other differences usually include a different court system, different rules and customs, impossibly short deadlines, no jury, unusual third party intervenors, hundreds of pages of mandatory forms, an emphasis on proof-by-paperwork reminiscent of medieval litigation, the parties' inside information about each other,
and of course the notoriously high level of emotion.
This is a fundamentally different world from the one most litigators work in, and success requires a fundamentally different approach.
Don't think of a custody fight as a lawsuit.
Think of it as an election; two candidates, Mom and Dad, are running for primary residential parent, exactly one of them will win, and there is only one voter: the judge.
Don't think of yourself as a lawyer; think of yourself as a campaign manager.
How do candidates win elections?
Sure, a little mud-slinging sometimes plays a role. But what's most important are the promises the candidate makes, and the credibility of those promises.
Your job is, first, to put together a package of promises (your candidate's "platform") that, in the judge's eyes, is better for the children that the other spouse's package, and second, to make sure your candidate's promises are credible.
Sometimes one candidate can be thought of as the incumbent (this of course will be true in a custody modification case), and the usual rules of politics will apply in such cases; the incumbent who can run on his or her good record has a tremendous advantage over the candidate who lacks proven success.
On the other hand, an incumbent who has messed up will be vulnerable to the opponent who says "it's time for a change."
A real world example.
Here is an example of a winning platform, based closely on an actual case in which my client, a working father, won custody of two little girls versus a "stay at home" Mom, a case which is about as tough as any to win for the father.
The client wanted to focus on the fact that his wife had had a couple of chippy little affairs at the end of the marriage; this infidelity was what was most important to him, but the judges couldn't care less.
Compare my approach:
If elected primary residential parent, my client promises:
(1A.) The girls will continue to: live in the house where they grew up, each in her own room, to go to their usual school, church, and other groups, to have their old friends and their old neighborhood.
The change in their lives will be minimized, stability will be maximized, and the cases, the legislature, and common sense command us to maximize stability.
Dad can promise this because his income from his existing job is sufficient to pay for this standard of living.
(1B.) The numbers prove that Mom cannot keep up the cost of living in the old house. If she wins custody, the girls will have to share a room in Mom's cramped apartment, go to a new school, make new friends; the disruption in their lives will be maximized and their standard of living will fall.
2(A.) Dad's budget was carefully thought out, and proves the feasibility of his parenting plan.
2(B.) We pointed out all the errors and inconsistencies in Mom's budget; this basic lack of feasibility shows that her parenting plan simply hasn't been thought out all the way; she can't deliver on her promises.
3(A.) As soon as Dad's divorce is final, he's marrying Ms. So-and-So, who testified yesterday. This fine church lady, who has two daughters of her own, will be an excellent step-mom for these children.
3(B.) Mom has no new commitment lined up, and some studies say she's more likely to be shot by a terrorist than find another husband. She can offer only a single-parent home to these children.
4(A.) Dad's new wife will look after the girls when he's working and they're not in school.
4(B.) Mom's parenting plan doesn't even mention who will take care of the girls during the two-hour gap between the end of school and when Mom gets home from work, or on weekdays when school is not in session.
5(A.) Dad's income is high enough so he only has to work his one job; he will have lots of quality time for his daughters.
5(B.) Mom is talking about finding a second job, and even going back to school to finish her degree; when will she have any time for the girls?
6(A.) Dad doesn't smoke, never did, never will.
6(B.) Mom admits she smokes, and didn't contest any of the evidence we introduced proving the many hazards of smoking around children.* She promises she'll always go outside to smoke, but how realistic is that, especially since she also admits that her latest boy-friend, who she met in a bar, is a heavy smoker?
{*Note: I got a big box of evidence from Action on Smoking and Health: www.ash.org/ }
7(A.) Dad reads with the girls every night, and is committed to excellence in their education. The school records proved that the girls' attendance was better and their grades were higher after Dad won temporary custody.
7(B.) Mom offers "me, too" lip-service on the education issue, but no specifics.
8(A.) The report from the family doctor and the psychologist's testimony prove that, during the year Dad has had temporary custody, the girls have been healthy and happy, and are adjusting well to the divorce situation. Dad has been a good "gate-keeper;" Mom admitted, when I cross-examined her, that the girls have always been ready for her visitations and she's had no real problems enjoying her visitation time, except the ones she caused herself.
8(B.) During the month before custody was given to Dad under the Temporary Order, Mom repeatedly used her TRO to deny Dad any access to his daughters, even phone calls, and the psychologist testified that this harmed the girls; Mom cannot be trusted to be the "gate-keeper" parent, and, what's even more important, Mom has no history at all of success as a single parent, not even one day.
Your Honor, politicians have a saying: you can't beat somebody with nobody. Mom has almost no track record as a single parent, and what there is, is bad.
Dad, on the other hand, has a year of success proving that the girls are better off with him.
The courts and the legislature have found that changing custody is harmful for children; there is absolutely no reason to change custody in this case, and every reason to continue the status quo. Dad is the only parent who can offer stability, a comfortable middle-class life, a two-parent, smoke-free household, and a proven commitment to educational excellence.
Dad's parenting plan is in the best interests of the children, Your Honor, and we ask that the Court to adopt it.
In that particular case, Dad won by a landslide, but you don't have to win 100-0; a 51-49 win by a basket at the buzzer is enough.
Sometimes the best way to win is to say the parties are tied on every relevant point except one, and then win that one.
Belated introduction.
Many people believe that fathers can't win custody fights, but that's not true.
My practice emphasizes fathers' custody fights, and I'd like to share some of the things I've learned.
I assume the reader is an experienced family law practitioner, so I won't waste time on the basics, and since these are tips for family law practitioners, and not a scholarly law review article, I'll also go easy on the foot-notes.
There are three basic types of fathers' custody fights.
The first is when a dissolution of marriage is being litigated.
The second is after the divorce has been finalized, but one party wants to modify the parenting plan.
{Note: Since I wrote this essay, the Child Relocation Act was passed; think of a Relocation Act fight as a special case of a parenting plan modification -- which it is.}
The third type is a non-marital (parentage, also known as paternity) action.
The first two are governed by RCW 26.09, and the third by RCW 26.26.
Sometimes third parties can get involved. Win by beating them when you have to and making alliances with them when you can.
An example from my practice: two dads, both represented by my firm, moved for major mods at the same time versus Mom. The dads got a big house where they lived together with all the kids, so the half-siblings could be together, and both dads won.
In theory, strategy and tactics in all three types of cases should be the same, since the same "best interests of the child" standard applies to all three, but in fact the first type of case is completely different from the latter two.
Non-marital cases
Parentage cases in turn break down into two types: meretricious (crypto-marital) cases, where the parties would be found to have formed a "common law" marriage in states recognizing this concept, and more casual relationships, including one-night stands.
Along this spectrum of commitment, the closer the relationship to the "one-night stand" end, the harder it is to win custody for Dad unless you can show that the mother is so terribly unfit that Dad is the only realistic alternative to foster care; in these cases, you have to make a deal (see "make a deal," below), trash Mom utterly (see "trashing Mom" below), or else follow the "incremental approach," also below.
Although the "best interests of the child" are supposed to be the only thing that matters, in the absence of a lawful marriage, the fathers (but, for some reason, not the mothers) seem to be under a judicial disability with a severity that is inversely related to the amount of time Mom and Dad spent living together.
Only in the longest-term, most marriage-like relationships does the father get a fair chance to win a custody fight; custody will be Mom's to lose.
Modifications
Major modifications of parenting plans are highly disfavored; the official rationale is the harm to the children from disrupting existing
custodial arrangements, and an important unofficial reason is the judges and the legislature don't want the courts clogged with child custody losers, endlessly relitigating their cases.
If Mom got custody in the original divorce, custody will continue to be hers to lose and not Dad's to win; no matter how bad the original decision may have been, or how much Dad's suitability to be the custodial parent may have improved.
Mom has to screw up somehow before Dad will be able to get over the "threshold," and even if he can do that, he is still litigating from out of the hole that is the presumption that a custodial change is harmful for the children, and the longer Mom has had custody, the deeper the hole.
Getting over the threshold (adequate cause hearing) is a lot like winning custody in a parentage action, while winning the major modification (if and when you can get over the threshold) is more like winning custody in the original divorce.
I tell my clients we need 200% proof to ultimately win a major mod; we need evidence that is 100% convincing to get over the threshold, and then another, a different 100% to win at trial, because in the time between the adequate cause hearing and the trial, Mom should fix the problems that got us over the threshold.
A level playing field?
Only in the original dissolution is the playing field even approximately level for Dad.
Our statutes are ostensibly gender-neutral (as is required by our State's Equal Rights Amendment), but the usual way to bet is on Mom. Dad's lawyer has to work harder in order to win. [NOTE ADDED IN 2012: That's not true anymore, at least not in King and Snohomish Counties.]
It is vital to start custody work for Dad as early as possible.
Too often the fathers wait to come into the lawyer's office until after they've already lost at the Temporary Order or other restraining order stagesof the case, and the case will probably be hopelessly lost at that point, even if it could have been a winner.
Foreman's Law
Foreman's Law: "He who wins the TO has won the whole thing."
Whoever wins temporary custody has a tremendous advantage going into trial. The TO winner can argue stability and offer proof from actual experience; the TO loser must overcome the stability presumption and argue a hypothetical.
A good strategy when representing the client who has very few litigation resources is to put all $$$ into the TO fight, and then try to settle the case in the hallway afterwards along the lines of what- ever the commissioner ordered.
Don't get PO'd
The judges and commissioners hand out temporary protective, temporary, temporary restraining, and temporary domestic violence protection orders to moms like candy; any woman who wants one can get one, at little or no cost.
It is important for the father's attorney to vigorously litigate these orders; preferably by promptly moving to quash any order obtained on an ex parte basis.
Any order Mom can get that brands Dad as a violent abuser, unable to control his temper, will haunt him throughout the custody litigation, even if there is no allegation that he was ever violent to the children.
These orders also will tend to keep Dad out of the house, and possession of the house is extremely important; leaving (or getting kicked out of) the house is the most common single mistake that proves fatal to the father's custody case (see below, "my kingdom for the house!").
Get into court as quickly as possible and fight any of these orders.
Your client should get a good haircut and shave, wear his best suit (buy one at the Goodwill or Salvation Army, if necessary), and be on his best behavior (speaking only when spoken to) . . .
. . . but it's OK for you to show your anger; pound the podium and demand to see even a shred of proof in support of these slanderous accusations, clearly made to abuse the legal system so as to gain an unfair advantage in the custody fight.
Remind the judicial officer (who has seen you doing this) that you do volunteer work for battered women, and we both know an abused woman when we see one.
Where's the Polaroids, showing the injuries? Where's the
emergency room report? Where's the police report? Where are the declarations from the neighbors who heard her screaming? Where's the long history of abuse that will invariably be part of a true domestic violence case, including all his "forgive me, honey" notes from previous occasions when he went over the top?
Don't let your client get branded as an abuser, unless of course he is one, in which case see "the joy of therapy," below.
All false accusations of abuse, especially child abuse, must be fought all-out; I cannot over-stress the importance of this.
Nothing else in the custody case matters if your client is branded as a child-abuser, and he may never be able to escape the effects of this accusation.
If you can't knock it down flat by yourself, you owe it to your client to bring in an expert, and quickly, before the stain sets.
Time is of the essence
Family law practice is deadline-driven; often there are only hours in which to get the declarations and other documentary evidence that (in theory) are all that the court will consider in a paper hearing, and it's even tougher if your pleadings have to be served on a pro se who isn't on the ABC route, or if your office is a long way from the court where they have to be filed.
Taking the first shot is a tremendous advantage; you have (to some extent) all the time you need to put your case together, you get to choose the hearing date, you get to talk first at the hearing, and there are both psychological and tactical advantages to being the Petitioner.
Be the Petitioner
In theory, it doesn't make any difference who is the Petitioner and who is the Respondent, but in practice there are some real
advantages to being the Petitioner.
Consciously or not, the judicial officers tend to regard the Petitioner as the "good guy" in the marriage, the one who finally got fed up with the "bad guy's" bad behavior; it's a throwback to the old days when divorce was a fault-based breach of contract action.
INSERT REST OF ESSAY HERE
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ALSO EDIT THIS OLD ESSAY:
(a.) UPDATE (b.) REWRITE FOR LAY PEOPLE
ADD LINK TO CALCULATE CHILD SUPPORT
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MASLOW'S HIERARCHY OF NEEDS
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add a relocation act page
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camel-nosing
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quote from DV CLE
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take away Mom's home court advantage by buying 50-50
importance of keeping proof
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affidavit of prejudice: stat, rule, local rules, advice
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NOTE; THIS IS NOT THE FRIDAY HARBOR CLE, WHICH FOCUSED ON A CASE WHERE:
1. WE TOOK AWAY A STAY-AT-HOME MOM'S "HOME COURT ADVANTAGE" BY NEGOTIATING A 50-50 CUSTODY DEAL MONTHS BEFORE WE FILING FOR DISSOLUTION
2. THE CLIENT DID AN UNUSUALLY GOOD JOB OF DOCUMENTING IN DETAIL WHY HIS HOME WAS BETTER FOR THE CHILD THAN MOM'S, INCLUDING:
HOME VS. APARTMENT MOM SHARED WITH ANOTHER WOMAN
BEDROOM FOR THE CHILD VS. SLEEPING IN THE APARTMENT LIVING ROOM
EXCELLENT SCHOOL VS. UNKNOWN (MOM HAD NO PLAN FOR WHERE SHE WOULD LIVE)
EXCELLENT MEDICAL CARE VS. UNKNOWN (MOM HAD NO DOCTOR OR DENTIST FOR THE CHILD)
ETC., ETC.
Petitioners get to present their case in chief first at trial, which is a big
advantage to any trial lawyer worth his or her salt.
The new "I. C." system in King County also favors the Petitioner. When you
are the party who files, right away you get the case schedule and know who your
judge is. (The Respondent can do nothing at this point, unless they're right behind
you at the Clerk's window, looking over your shoulder; only you know the case
number and only you know who the assigned judge is.) If you like your judge, you
can go make a discretionary motion; any ex parte motion will do, and it doesn't
matter whether you win or lose the motion (as long as you don't look like an idiot
for having made it), your judge has now made a discretionary ruling and so cannot
be affidavited. On the other hand, if you don't like your judge, you can run to his or
her courtroom and present your "affidavit" (Motion and Order to Change Judge). In
fact, few cases go to trial, and fewer of those are tried before the assigned judge,
and of course you have no control over who you get if you affidavit your first judge, but if you feel strongly that certain judges are a lot worse or a lot better for your client than others, then by being the Petitioner you can have some control over which judge is assigned to the case.
NOTE ADDED IN 2009: THE PARAGRAPH ABOVE NEEDS MAJOR EDITING NOW. IN KING COUNTY, DIVORCE TRIALS ARE ALMOST ALWAYS "BROKERED" TO AN AVAILABLE JUDGE AT THE LAST MINUTE. SAVE YOUR AFFIDAVIT OF PREJUDICE UNTIL YOU KNOW FOR SURE WHO THE TRIAL JUDGE IS GOING TO BE. SEE MY PAGE (TO BE ADDED) ON AFFIDAVIT OF PREJUDICE LAW & HOW TO DECIDE. I MAY ALSO ADD A LIST OF JUDGES (BY NAME) I WOULD ALWAYS/NEVER AFFIDAVIT, BUT PROBABLY NOT -- WHY PISS THEM OFF?
THERE ARE ONLY TWO SITUATIONS WHEN I WOULD PULL THE TRIGGER ON MY AFFIDAVIT PRE-TRIAL:
(1.) DAD LOST THE TEMPORARY ORDER DISASTROUSLY (AS IS SO OFTEN THE CASE; SO MANY OF THEM REPRESENT THEMSELVES AT THE T.O. AND ONLY AFTER LOSING BADLY LAWYER UP). DAD'S ONLY HOPE IS REVISION, BUT THE REVISION JUDGE IS NOTORIOUSLY PRO-MOM. IN THIS NARROW SET OF CIRCUMSTANCES, I WOULD AFFIDAVIT.
(2.) THE ASSIGNED JUDGE IS A NOTORIOUS MAN-HATER (THERE IS ONLY ONE IN KING COUNTY AND THERE ARE NONE IN SNOHOMISH COUNTY). WHEN THAT PARTICULAR JUDGE IS MY ASSIGNED JUDGE, I GET VERY NERVOUS ABOUT THE OTHER LAWYER MAKING THE JUDGE AFFIDAVIT-PROOF BY PRESENTING A MOTION ON AN EX PARTE BASIS, NO NOTICE TO ME. I HAVE BURNED MY AFFIDAVIT SEVEN TIMES IN THAT SITUATION, ALWAYS WITH THE CLIENT'S INFORMED CONSENT, AND IT HASN'T COME BACK TO BITE ME YET. YOUR CASE, YOUR CLIENT, YOUR CALL.
I SHOULD ALSO TALK ABOUT THIS TRICK:
YOU FILE NEW DISSO. IMMEDIATELY, YOU KNOW WHO YOUR ASSIGNED JUDGE IS, AND YOU'RE NOT HAPPY. FILE ANOTHER ONE -- I MEAN, RIGHT THERE AT THE CLERK'S WINDOW -- ANOTHER SET OF PAPERWORK, ANOTHER CHECK FOR $250. THE NEXT JUDGE ON THE ROTATION WILL BE THE ASSIGNED JUDGE FOR CASE #2. IMMEDIATELY DISMISS CASE #1 . . . IF YOU CAN (THAT'S THE POTENTIAL PROBLEM). OR YOU CAN TAKE THIS RISK: JUST DON'T SERVE CASE #1, AND HOPE MOM'S LAWYER DOESN'T SCOMIS AND FIND OUT ABOUT IT.
SOME GUYS GOT IN A LOT OF TROUBLE DOING THIS ON A WHOLESALE BASIS IN FEDERAL COURT, SO DON'T DO IT TOO OFTEN!
Basic attack strategy
Have Mom served on Friday night. Don't even think of letting Dad or one of his friends serve process, use a reliable professional. Serve all the initial papers together: Summons and Petition, Case Schedule, Proposed Parenting Plan and supporting documents, Temporary Restraining Order, Motion for Temporary Order and supporting documents (especially Proposed Temporary Parenting Plan and supporting documents, and note for Motion Calendar), and Interrogatories and Requests for Production of Documents (if needed). Take a lot of trouble over these documents and be sure to be very specific about the relief you seek, in case you can get a default. Work hard at this point in the case, and the rest could be easy.
The sheer volume of paper will have a psychologically depressing effect on
the other party; it may be a while before she even realizes there's an important
hearing coming up in a few days (depending on the local rules).
Ideally, she starts calling around, lawyer shopping, on Monday, and doesn't
actually see anybody until later in the week. By now, at least in King County,
opposing counsel will find him or herself in the appalling position of having to
draft responsive pleadings in detail, in an impossibly short period of time, for the
all-important Temporary Order hearing, which in theory will decided on the
pleadings.
Ideally, the responsive pleadings will be very poorly thought out, and
you will be able to criticize them for their errors and inconsistencies (see: "put their
pleadings under a microscope," below).
More typically, Mom and her lawyer will show up for the hearing having neither filed nor served any responsive pleadings, claiming insufficient time. Caselaw (CITE) says a continuance is mandatory at this point; otherwise, Mom is denied a meaningful opportunity to be heard. But at least you get an order during the continuance period!
The Temporary Order.
In theory, losing the Temporary Order supposedly doesn't prejudice your chances to win the battle for the Permanent Parenting Plan at trial, but in fact, to a considerable extent, he who wins the TO has won the whole thing.
There are a variety of tactical and psychological reasons for this, but four are most significant.
First, the TO may well cover a period of a year of more, which will be 10%
(more or less) of the time before the children reach the age of majority, depending
of course on their precise ages at the time of the hearing. Custody of dependent,
unemancipated children is always before the court, so no victory is necessarily a
final one in custody fights; a custody fight is more of a process than a single battle,
and victory is more like a series of more-or-less short-term, temporary wins than a
single climax, so winning the first 10% of the battle is important in its own right.
Second, he who wins temporary custody probably also won the house (see
below on the importance of this).
Third, and undoubtedly most important, by winning the TO, your client is in
a position to go into trial a year or so later with a proven record of success as a
single custodial parent, while the other party has had no chance to establish any
sort of track record in this role. The other side is forced to argue hypothetically
about what a good job they promise to do if they get the chance, while you can
argue: (a.) what a great job your client has already done, (b.) the court can't choose pure speculation over solid fact, and (c.) the legislative fact that change in custodial arrangements is presumed to be harmful, which of course gives the advantage to all incumbents, including temporary custodial incumbents, notwithstanding the RCW sections quoted above, in foot-note 3.
NOTE TO SELF: TRY TO FIND THE REST OF THIS DOCUMENT, INCLUDING FOOTNOTES
Fourth, when the father wins custody of the children at the TO, invariably the
mother is visibly shocked; it never occurred to her that she could lose. (I've seen moms really lost it, so badly that the deputies had to restrain them.) After all,
everybody says mothers always win and her attorney, if incautious, has also been
telling her that victory is inevitable. This psychological shock to Mom weakens her
ability to continue believing that ultimate victory is inevitable (often opening the
door for negotiations, where the door was always shut tight before), and it also
drives a wedge between Mom and her attorney, who doubtless will get the blame
and might well deserve it. Your client, on the other hand, is now convinced that
you are the greatest lawyer in the world, and so the two of you are a happily united
front against opponents whose relationship is crumbling under anger, blame,
mistrust, and loss of confidence.
If you can't collect your full fee as an advance retainer, one of the reasons it's
important to keep winning the motions is so your client will keep paying his bills;
Moms who lose custody at the TO often stop paying their legal bills, with attorney
neglect the predictable consequence, further changing the odds at trial in your
advantage.
If you lose the TO, or any motion before a commissioner, don't be afraid to
relitigate the matter before a judge; revisions are often granted. Write a good brief
for the judge, stressing that an error of law was made below, don't just take a
second bite out of the same apple.
Getting ready for trial
Hopefully, you won custody at the TO; if not, at least, you got your client a lot of visitation time, especially some extended time (of course including over-nights). Make sure he uses every second of his time; there's nothing that undercuts the credibility of a parent asking for more time like a record of not using the time already awarded.
If Mom got custody, and she's interfering with Dad's ability to enjoy his
visitations (a common problem), be sure to document what she's doing (or not
doing), preferably with some reliable witnesses, one of whom is making a
videotape recording with the sound recording turned off. Try to make a pre-trial
record, with a finding of fact that Mom was not a good "gate-keeper" parent, by
using motions to compel, which are far more likely to be granted than contempt
motions.
HERE DIGRESS RE: MARGARET DORE'S CASE RE: FRIENDLY PARENT
WARNING TO THE READER: I HAVE TO STOP QUICK-EDITING THIS ESSAY AT THIS POINT -- THE NEXT PART COULD HAVE OUT-OF-DATE INFO OR ADVICE IN IT
On the other hand, if Dad won temporary custody, make sure he understands
how important it is to be a good gate-keeper.
Collect evidence in the "big three" areas: education, physical health, and
mental health. Be sure your client gets the kids to school every time it's his
responsibility to do so, unless they really are too sick, in which case there should be
a doctor's visit on the record. Make sure your client gets involved in the children's
schooling, and pray that their grades will go up; dig deep and hard for a good
explanation if the grades go the other way, and hope opposing counsel doesn't find
out. Try to get at least one teacher on your side, willing at least to endorse your
candidate I mean praise your client in a declaration, hopefully explicitly
offering an expert opinion that it is in the best interests of the children that they
should (continue to) reside with Dad.
Regular routine physical exams should also be used to document Dad's
competence as primary residential parent. School records and doctor's reports are
cheap and impressive evidence. While opposing counsel is busy taking declarations
from Mom's gal pals, trashing Dad, you stay busy getting evidence from neutral
and expert third parties.
Spend your expert witness money on a good psychologist, somebody with
genuinely impressive credentials who spends enough time with the children and
the parents so the expert's conclusions will be seen to have an adequate basis.
Obviously your best choice is somebody known to and trusted by the judge; ask the
bailiff, or check the court records to see who the judge appoints as the court's
expert or as guardian ad litem. Beware of the "hired gun" expert, and don't
pressure your expert to trash Mom; remember the "parable of the bears;" Dad
doesn't have to beat Mom by a 99-0 score, 50 to 49 is enough. (See the discussion
below of the Kovacs case for a classic example of what to do and what not to do
when it comes to psychologist expert witnesses.)
Also remember, as you prepare for trial, the old evidentiary maxim you
learned in law school: a brick is not a wall. No one "brick" has to be enough to win
all by itself; just keep piling those bricks up until you've tipped the scales in your
client's favor (to mix metaphors horribly).
Useful resources. The family law section of the American Bar Association
published a special issue of their journal, Family Advocate, exclusively devoted to
the father's custody case. It is jammed full of good advice for Dads; you should buy
this in bulk, give a copy to every one of your clients, and say, "read this and re-read
this and keep reading this until you know it by hear; this is your Bible." There's
also a lot of good advice in it for you, too, so you read it, too.
Knowing and following the local rules is essential for success; a failure to
meet some obscure deadline can lead to disaster, and even when it's "no harm, no
foul," there's nothing like being embarrassed in court, by a judicial officer who is
pleased to have you stand there while he or she points out your failure to comply
with a rule, if you want to undercut your client's confidence in you.
There's no substitute for getting the latest local rules and studying them
carefully. The West paperbacks are a trap for the unwary, since the rules change all
the time; use services like the Attorneys Eagle Eye, the King County Bar Bulletin,
or the Washington Journal to stay on top of rules changes.
One thing about family law practice that particularly drives outsiders crazy is
the elaborate network of unwritten rules, which are often the most important ones.
My advice to lawyers interested in family law litigation is the either get all the way
in or else stay out; the non-specialists who still want to do a divorce every now and
then are the ones who get burned.
In King County, there is a great source of information about the unwritten
rules and all other aspects of family practice: the minutes of the King County Bar
Association's Family Law Section. The Family Law Section is by itself one of the
state's largest bar associations; it meets once a month (most months) over the lunch
hour, usually on the first Friday of the month, in one of the few places in the King
County courthouse large enough for the dozens of people who come. The meetings
move fast, with many topics covered, and perhaps the highlights are the judges'
and commissioners' tips you're hearing it straight from the lips of the people who
wield the gavels, so pay attention, believe, and remember.
The authoritative source-book for family law, often quoted in appellate
decisions, is the WSBA Family Law Deskbook, which has recently been up-dated.
I also recommend Washington Family Law Reporter, a quarterly which is
especially good in its coverage of unpublished decisions, which you can download
from www.wa.gov/courts/opinpage/home.htm. The unpublished family law
decisions are often excellent and terse statements of the law, and the fact that they
weren't considered worthy of publication implies that the law in this area is well-settled and ought to be well-known. Although you can't cite these decisions
directly as authority, you can certainly quote from them, and then of course it would
be plagiarism if you didn't acknowledge your source. As a matter of practical
lawyering, unpublished decisions are often cited in family court, another reason I
say you're in a whole different world when you enter family court.
When it comes to finding published cases, I find CD-LAW indispensable.
One thing every family law practitioner should do is to download all the family law
cases off CD-LAW, onto a big hard-drive, and then index them with dedicated
indexware (such as Zyindex or ISYS) or just use the index feature in WordPerfect.
Then you'll be able to find cases at hard-drive speed, and speed, as we know, is
essential to success in family law.
One more tip about finding and arguing the law: know what Division of the
Washington Court of Appeals your county is in. Differences among the Divisions
are common in family law; your judicial officer may not have much interest in
opinions from another Division, while cases from your Division are mandatory
precedent, so cite accordingly.
Now I'd like to discuss some practical considerations, pre-trial.
Father, know thy child. What really sunk Woody Allen's boat in his
famous custody battle with Mia Farrow was not her dime-a-dozen accusations of
abuse, or even his acknowledged affair with Ms. Farrow's adopted daughter; it was
his own deposition, where he wasn't able to answer all sorts of questions about his
kids, questions a truly dedicated parent ought to be able to answer, such as: who
are their friends? what are their favorite foods? what subjects do they like
best/worst in school? If Dad finds it burdensome to invest the time talking to his
children necessary to be able to answer questions like those, then probably Dad
should re-think fighting for custody. More importantly, men tend to be less verbal
and less inquisitive than women, so they don't know as much; educate your client
on the importance of getting to know his kids as people.
My kingdom for the house! The worst mistake your client can make at the
beginning of a divorce is to voluntarily move out of the family house, leaving Mom
and the kids behind. Mom will get a restraining order to keep Dad out, and the
whole custody case will probably erode from that point.
A prime factor in determining what is in "the best interests of the children"
is stability in their lives, and that usually boils down to staying in the family home.
Further, there is a preference to awarding the home to the parent who wins custody,
so that stability can be maintained. Surrendering the house is a tragic mistake for
Dad, especially if his income is the only one high enough to continue paying the
mortgage and other costs of living in the house. Dad should stay in the house until
the other side uses dynamite to blast him out of it.
Moms sometimes get ex parte orders which purport to bar Dad from the
family home; often these are erroneous on their face and even more common is the
case where Mom cannot in fact present any credible evidence to support her
allegations. Fight these orders quickly and as well as you can (see "don't get
PO'd," above); also fight to keep Dad in the house as part of the Temporary Order
winning the house is a long step towards winning custody, so fight hard.
And, of course, get Mom out of the house if you possibly can. Although in
general Dad should cut off all financial assistance to Mom unless ordered by the
Court, here is an important exception; be generous in helping Mom move out. Pay
the deposit on a nice apartment; rent a moving truck (or even hire movers); do
whatever it takes to move the other spouse, and then get your own restraining order
to keep her out, just as soon as your local rules allow (30 days in King County).
Dare to compare. Dad's Parenting Plan implies one neighborhood, one
school, etc.; Mom's implies another. Compare! It's easy to compare schools
statistically, such as by students' performance on standardized tests, or percentage
of graduates who go on to college, or by ratio of teachers to students (or computers
to students), or by any criterion that makes sense. Ask your school's teachers and
administrators; they know the areas in which they look good.
Compare neighborhoods, too, such as by crime statistics, or available
recreational facilities, or anything else that makes sense.
Try to find as many differences as possible between the two parenting plans
and use your best advocacy skills to show all the advantages of Dad's plan, and all
the weaknesses of Mom's.
Smoke gets in your eyes. Smoking around children is bad for all sorts of
reasons. The second-hand smoke can be very hard on them, leading to increased
illness, more absences from school, and poorer academic performance. Their risk of
taking up smoking is enhanced, as is the risk of fire. Parental smoking has been
statistically associated with all sorts of bad things for the children.
More and more these days, I see situations where, when one parent smokes,
it's the mother, and this can be a great "brick" for Dad.
For a modest price, Action on Smoking and Health will sell you an
enormous package of documents of all sorts intended to assist custody litigators in
smoking cases, ranging from popular magazine articles to scientific papers, and
including briefs and opinions from all over. This is a resource that should be in
every custody litigator's library. This issue can really put Mommy on the defensive,
especially since Mom likes to portray herself as the nurturing parent. ASH's
headquarters are in Washington, D.C.; yes, they have a Web site and an (800)
number.
Who's that walking down the hall? You have one opportunity to use the
court's innate gender prejudice to your client's advantage, and that's when you
compare one parent's "significant other" to the other "SO."
Imagine this scenario:
It's late at night. The custodial parent is in bed, sound asleep. So are the
children, in their rooms. The only one awake is the parent's "SO" (or, better yet,
one-night-stand, picked up in a bar earlier).
A child's door opens; we see the "SO's" face in the doorway, looking at the
sleeping, innocent, helpless, child . . .
In this scene, which face is scarier to you?
Dad's girl-friend, or Mom's boy-friend? Enough said.
Let's make a deal. All trial lawyers know the advantages of settling cases,
so I needn't belabor this point. What is important and may be news to you is that
there is are a large number of women out there who don't want custody.
Anybody who's been a single working parent knows what a grind it is. Not
every mother wants custody. It's easy to spot such women; Dad will complain to
you that Mom prefers going out, drinking, partying, and/or whoring until all hours
and neglects the kids. The problem is to convince them to do what they already
wan to do anyway: voluntarily relinquish custody.
Most women perceive themselves as being under tremendous social
pressure, from their female relatives and friends, and from society generally, to
retain custody of their children. A non-custodial Dad is just another divorced man,
but a non-custodial Mom is viewed with abhorrence as someone branded unfit by
the court; it's like a scarlet letter indicating some terrible sin or least failure as a
woman in the very fundamental role of mother. You have to help Mom get past this
psychological pressure; experience talking pregnant girls into relinquishing their
babies for adoption is a big help here. Talk to Mom about adoptions; show her that
relinquishing can be act of greater love than retaining custody, if that's what's best
for the children. Say it's a "far far better thing that she is doing than she has ever
done before;" appeal to her perception of herself as a person of nobility and
sacrifice. Stress that it's not true that all of society will condemn her, and anyway
who cares what other people think?
And do appeal to her own self-interest. Many women seek custody because
they have big dollar signs in their eyes when they think about child support. Point
out how rarely full support is collected, and how common it is to collect nothing at
all. Most importantly, actually calculate child support and show how little it is
compared to the actual cost of being the custodial parent. Remind her of how hard
it is to find "Mr. Right" when you're busy soaking diapers in the toilet ("and let's
face it; you aren't getting any younger").. Show her how hard it is to find quality
child care, and how much it costs. In the right circumstances, you might remind her
that she'll be having more children "when the right man comes along."
And it's essential to promise generous visitation; "you will still be an
important person in your children's lives. Heck, with the amount of time they spend
in school, and you spend working, you'll probably have about the same number of
hours together either way."
Two things you can't do are to falsify child support calculations or to
promise not to enforce a child support order, because child support is a duty owed
by the parents to the child; they can't bargain away the child's rights, any more
than two defendants can agree between themselves to limit a plaintiff's recovery.
But there will often be something you can ethically do in this area to remove as
much of the "sting" of child support payments from the non-custodial Mom, such
as agreeing not to impute income while Mom finishes her education, or accepting
an unequal division of property (such as Mom's share in the equity in the family
house) in lieu of child support. (You won't be bargaining away much for your
client either, since non-custodial Moms rarely pay even one dime of child support.)
You must also be careful when reminding Mom that she can re-open the
custody question later on, in another legal proceeding. Perhaps the wisest course
ethically is just to say nothing about this at all, or, if you must discuss it (because
she asks), be up front about the fact that the courts don't like to change custody
decisions. And of course you must be clear that you do not represent her and she
really should go get her own lawyer.
In a surprising number of cases you can negotiate for custody the old-fashioned way: buy it. Ask Dad how to make the right approach. Sometimes I
show the client the X thousand dollars that Dad has put in his Client Trust Account
and say "you can have this, or we'll spend it going to trial, and you'll end up with
nothing."
I usually recommend something less crass than a straight cash bribe, which
can be offensive. Many women crave a nice, rent-free apartment coupled with an
all-expenses-paid trip to their local community college; this can be cheaper for your
client (and of course is surer) than a full-blown trial, especially if Mom isn't really
serious about finishing her education.
Another thing women of limited economic means crave is a reliable car; we
settled no fewer than three cases last year by swapping cars (with a collective fair
market value of about $1600) for agreed custody orders that's cost-effective
lawyering!
The "buy it" strategy often works well if Mom can be impressed with the
idea that she's going to lose in the end, regardless of whether she fights or not,
perhaps because she has a substance-abuse problem, and of course "buy it" is also
a natural tactic when Mom doesn't really want custody, but won't just give it away,
either.
Trashing Mom. Usually you can't negotiate for "full custody;" you have
to fight for it. I have stressed the importance of focusing on the parenting plans and
objectively demonstrating that Dad's plan is better for the children. But the
traditional mud-slinging is sometimes also important, especially in modifications
and in situations where Dad's plan just can't be made any better than it is, and it's
not good enough to win.
Mom should also be attacked personally anytime there is something
seriously wrong with her parental performance, such as closed-fist punching the
children in the face, or showering with teenage boys; these "bricks" are powerful
evidence, and it would be malpractice not to include them.
The important thing about trashing Mom is to remember this ancient maxim:
if you strike at the king, be sure you strike his heart.
If go after Mom be sure you get her. Bad-mouthing Mom, if you can't back
it up with solid evidence, is worse than useless; what you've trashed is your own
credibility with the court, and the fallout hurts your entire case. Particularly when
the other side is following the popular mud-slinging strategy, instead of addressing
the real issues, the judicial temptation is to say "a pox on both your houses," and
order the usual off-the-rack parenting plan, with custody to Mom.
Some money timely spent on a private eye can be well spent, if you're
considering trashing Mom. Take a look at her police record, poke through her
garbage can, talk to the neighbors. Most importantly, if she has an old boy-friend or
ex-husband, talk to these gentlemen; they may be great sources of information. Just
remember: you've got to be able to back it up; if you can't, don't bring it up.
The joy of therapy. One of the most frustrating things about family law is
the fact that far too often, allegedly reformed abusers are the darlings of the courts,
and substance abusers in particular find it easy to locate counselors who are
delighted to come into court and swear for them. The allegedly cured addict will get
a better break from many, if not most, judges than the person who never abused
drugs at all.
When you, as counsel on the other side, complain, the judge will ask you,
"how can I deny this person, counselor, when he/she has worked so hard to
reform?"
The answer is four-fold. First, most allegedly recovered abusers have been in
"recovery" for a period of time that is so short that the proposition that they are now
clean and sober for life is simply ridiculous; count up all the previous failed
treatments and ask about relapse rates at the latest treatment program. Ferociously
cross-examine the "counselor," usually somebody who's just an ex-addict, to show
lack of credentials, bias, and lack of foundation for an expert opinion.
Second, if the judge wants to bet the children on the counselor's opinion.
Even if there is only a chance of relapse, why take that chance when the other
parent was, is, and will continue to be clean and sober all along?
Third, remind the court that the rewards of cleaning up are in sobriety itself:
health, happiness, gainful employment, etc.; the reformed person shouldn't also
need child custody as an additional reward.
Fourth, and most important, argue that custody of the children should not be
given as a reward for good behavior (or withheld for bad behavior); the best
interests of the children should be the only criterion. If the judge does not agree, be sure to get the judge's view on record; then you've at least you've got reversible error.
Of course all this turns around 180 degrees when it's your client who is the
abuser; hustle him off to the nearest treatment program double time, and make sure
he graduates with honors, then parade his therapists before the court to say what a reformed character he is now, what a shame it would be if the judge considered any of his past behavior, how strongly motivated he is by the desire to have a lot of
residential placement time, and what a tragedy it would be if he slipped back out of
despair if the court went ahead and punished him for his past sins by restricting his
custody or visitation time.
Also be sure to prove that Mom was just as bad, and hasn't cleaned up. Ms.
Goody Two-Shoes rarely plays house with the Prince of Darkness, much less bears
children for him; if Dad was on drugs, you can be sure Mom was, too. If you can't
prove it, at least ridicule her protestations of innocence: so, you were at this all-night crack party, but you never inhaled? Wow, you can sure hold your breath a
long time! Hold your breath for the judge; show us how long you can go without
inhaling.
I QUICK-EDITED FROM HERE:
Should you ask for a child advocate?
Most courts have some program to look out for the children in custody cases, such as CASA in King County, and all courts have the power to appoint a Guardian ad Litem.
There are four types of cases where I like to ask for a child advocate:
The first delay is on Dad's side, such as when he won temporary custody or
when it's Mom who's asking for a modification. Adding a child advocate to the
case usually slows it down considerably; some GAL's drag their feet a year or
more, earning fees all the way, before the parties and/or the court force them to
produce a final report, and volunteers tend to take their time, as well. The children
are integrated into Dad's household, the less likely it is that the judge will transfer
custody to Mom. Other factors can indicate the desirability of delay, such as Dad
waiting for his big promotion, or everybody waiting for "clean and sober" Mom to
fall back off the wagon. If the children are with Dad and the delay goes on long
enough, then of course the case will ultimately become moot.
Second, a child's advocate can help make a good record if the case is a "slam
dunk," so you can be sure the advocate will come down on your side. This is good
insurance if you're worried about judicial bias.
Third, a free advocate is good if your case has a problem of proof and your
client can't afford to hire the investigator or the expert witness that he really needs; the advocate can substitute in this role.
Fourth and finally, an advocate, especially one who is a real "off the wall"
amateur, can be a very unpredictable "wild card" in the game. When the case
seems to be a dead-bang loser, requesting an advocate can be like throwing the
"hail Mary" pass; you just might get lucky and find the advocate on your side for
some reason, and there's really nothing to lose, so why not?
I would stay away from using advocates when the case is a close one; use
your superior lawyering skills and win with hard work, not by rolling the dice with
an advocate.
The incremental approach
What to do, when the case is a loser?
The first thing to do is not to give up too quickly; make sure the alleged "corpse" really is dead before you find a coffin for it.
Try to negotiate for as much quality time as possible. Remind Mom that Dad
will always be the children's father, and it really is in their best interests for him to
be part of their lives. Use the new video-phone systems, or e-mail, to stay in touch
over long distances. Try to get a lot of uninterrupted Summer vacation time.
Encourage Dad to play for the long run. Eventually, even the youngest child
becomes an adult, and will make his or her own decisions about how much time to
spend with Dad; be the kind of Dad so they'll want to spend quality adult-adult
time later.
If the client is really determined to win custody eventually, advise him to
wait for the opportunity and then pounce on it when it comes along; maybe Dad
will get lucky and Mom will screw up somehow (see the discussion of Kovacs,
below). When custody is Mom's to lose, every now and then she does screw up
and does lose it.
To cite just one example: Dad may insist that Mom uses cocaine, even
though she aced her substance abuse evaluation. If so, maybe she also sells a little to a girl-friend every now and then. If so, maybe your private eye can arrange to have her busted; putting Mom in prison is always a "slam dunk" way to win custody.
Put their pleadings under a microscope
This especially applies to Mom's budget, which is often cranked out as a "ho-hum" after-thought by a staff person at her attorney's office. Chances are excellent that is has all sorts of errors and inconsistencies in it, demonstrating that Mom's plan is poorly thought out and perhaps even showing that it isn't feasible. For example, a car payment might be budgeted, and also gas, but nothing for insurance or maintenance.
The parenting plan itself deserves similar scrutiny; look for the kind of
inconsistencies typical of "boiler-plate forms" modified in haste.
Remember, the parenting plan (and associated budget) are at the heart of the candidate's platform; if Mom's done a bad job on the plan, why should we think she'll do any better job carrying it out?
Limiting factors
RCW 26.09.191, an already bloated statute, just keeps growing all the time, as each successive legislature tinkers with it. This is the list of bad things which, if true about a parent, suggest or (purportedly) require the judge to limit that parent's residential time.
Know these limiting factors by heart, and carefully scrutinize the other side
for signs of them. Sometimes a case that looked like a dead-bang loser will turn
into a slam-dunk winner because of a little digging in this area.
For example: suppose investigation reveals that, in another state, Mom's
new boy-friend engaged in consensual sexual intercourse with his 12-year-old girl-friend when he himself was just a lad, and her mother found out, he got arrested,
and ended up pleading guilty to some gruesome-sounding child rape charge, and
what you've got for the court is a certified copy of his conviction, but minus the
exculpatory details. This document would be devastating if it came out for the first
time at trial, especially if the boy-friend initially lied about having any criminal
priors under cross-examination.
Know the parenting functions
It's important to remember that this quaint expression is a term of art, meticulously defined in RCW 26.09.004. Use this language, and the seven statutory factors which guide the court in deciding on a permanent parenting plan (RCW 26.09.187), to guide your drafting.
I like to quote the seven factors word-for-word, as topic outlines, and try to
show that my client is the better parent under every factor.
This is not only a useful guideline for crafting your pleadings, it is also
intended to put pressure on the court. Although the judge has a lot of discretion to
decide on a parenting plan, the court's rationale has to track the statute; if it were
undisputed that Dad was 7-for-7 as the better custodial parent under section 187,
but the judge gave custody to Mom anyway, clearly you would have reversible
error. The express purpose of our elaborate statutory scheme is to restrict judicial
discretion and force a principled decision regarding custody. Stress to the court how you stuck like glue to the statute, especially when the other side is doing something very different, like focusing attention purely on unsubstantiated mud-slinging.
Kovacs -- a road-map of how to do it
I really enjoy the decision in Marriage of Kovacs, 121 W.2d 795, 854 P.2d 629 (1993). This case is truly a road-map of how to win custody for Dad, and please don't think I'm blowing my own horn, because I had nothing to do with it.
Two key factors won the case for Dad. The first is that Mom got stopped
twice for DUI, both times with the kids in the car. Shame! Same! This is the sort
of thing I mean when I say, "wait for Mom to screw up, and then pounce."
The second is Dad won the battle of the experts. Dad's psychologist had
better credentials and worked harder than Mom's counselor, who did ridiculously
little investigation before testifying for Mom. Mom got out-experted, and that was
enough to put Dad over the top; remember, Dad doesn't have to run faster than the
bear, he only has to run faster then Mom. Kovacs is full of good ideas and good
citations, and I recommend it highly.
NOTE ADDED IN 2009: WE'RE 'WAY BEYOND KOVACS TODAY, AS A STATEMENT OF LAW, BUT IT IS STILL THE CLASS MAJOR MOD CASE, WELL WORTH READING.
Apple pie Moms don't get divorced
Our culture teaches various stereotypes about people in the roles they play. Moms are loving and nurturing; Dads work hard and earn money. If Mom and Dad should somehow divorce, what is more natural than to place the children with Mom, and order Dad to pay child support?
There are two problems with this naive view, which unfortunately has a
conscious or subconscious effect on many, if not most, judicial officers.
The first is that simplistic stereotypes never really fit neatly onto anyone. Do
you think you fit all the racial, ethnic, religious, gender, age, occupation, and other
stereotypes which could be applied to you?
The second is that there is heterogeneity in all populations; in the universe of
Mom's, there are all sorts of Mom's, from the nurturing to the murderous, and it is
not true that the calamity of divorce rains down on Mom's at random.
On the contrary, "apple pie" Mom's rarely get divorced, and divorced Mom's systematically differ from the cross-sectional average of Mom's.
An important part of your job as attorney for Dad is to convince the court to
put aside all prejudices and preconceptions, and to judge each individual case on
its own facts.
At trial. I assume you are a trial lawyer, and so know how to try a case. A few custody-specific tips:
Mom will be backward-looking, talking about her difficult pregnancy, her
painful labor, how little help she got changing diapers, and how she did all the
potty training. Wait patiently until she's done, and then politely object and move to
strike on relevance grounds; these kids aren't going back in the womb or need to be
potty-trained again, so really, what is the relevance of all that? Sure, Mom spent
lots of time with the kids back when she didn't have to work, but from now on she's going to have to work, perhaps even more hours than Dad. Truly, what is the
relevance of how she chose to spend her time back when she had a choice? At the
very least, objections like these, which go the heart of their case, will throw the
other side off their rhythm, and just when they thought things were going so well.
Dad's presentation, of course, should be purely forward-looking and child-centered; as I've already written, Dad should stick like glue to the statutory factors
and demonstrate, in a dispassionate and objectively reasonable way, point by point,
why it is that his plan is better for the children than Mom's.
The killer question when cross-examining Mom is to ask her why she wants
to win custody. If she isn't properly prepared, she can really hurt herself on this
one; if you're lucky, you'll get an answer like this one, which I really got in a trial:
"I want to watch my children grow." In my closing, I stressed how this answer was
selfish and self-centered, showed no concern at all for the best interests of the
children, and anyway proved that both parties could be satisfied by awarding
custody to Dad and giving Mom lots of visitation so she can watch her children
growing, which is precisely what the Court decided.
As in any trial, let the facts tell the story, and use lots of visual aids: big
photographs of Dad's nice neighborhood next to big photos of the not-so-nice
neighborhood where Mom's apartment is located, interior diagrams (copied from
public records, the building permits department) showing how cramped Mom's
apartment is compared to Dad's spacious house, school rankings (Dad's much
higher on the list than Mom's), side-by-side school attendance charts (day by day)
showing all the extra absences when Mom is in charge, block diagrams showing
the higher grades earned at school when Dad is in charge, the children's weekly
calendar (hour by hour) under each parenting plan (showing the gaps and poor
planning in Mom's plan), pie diagrams for the two budgets, etc. anything to
relieve the boredom of the human voice and to best tell the story of each of your
"bricks" of evidence. Overwhelm the other side!
NOTE ADDED FOR LAY PEOPLE: EXPERTS IN EVIDENCE LAW LIKE TO TALK ABOUT YOUR CASE AS A WALL, AND EACH ITEM OF EVIDENCE A BRICK IN THAT WALL.
In closing, challenge the judge's bias head on; look him or her in the eye and
say, "people say a man can't win a custody fight, but Mr. Smith doesn't believe
that; he believes he can get a fair decision in this court, on the evidence and under
the law. We've tracked the law, sentence by sentence, and we've literally filled this
courtroom with our evidence. Mr. Smith has proven that it is in the best interests of
the children to adopt his parenting plan, and I so respectfully request."
----
After trial. You won; congratulations! Or maybe not, in which case you
should be thinking about either appeal or the incremental approach (discussed
above). Let's assume you won. The silliest part of post-trial activity will be when
you try to convince the Office of Support Enforcement to garnish Mom's wages;
it'll take a while to convince them that you know who is the obligor and who is the
obligee, because their minds just programmed to accept a win for Dad.
NOTE ADDED IN 2009 -- THIS PROBLEM WITH SUPPORT ENFORCEMENT WAS TRUE WHEN THIS WAS WRITTEN MANY YEARS AGO, BUT IS NO LONGER TRUE, NOW THAT SO MANY DADS ARE FIGHTING FOR AND WINNING CUSTODY
-----
The serious and terribly important part is to make sure you do a really
outstanding job of drafting the Findings of Fact and Conclusions of Law. Too many
lawyers get sloppy at this point, and watch their win get taken away by an appeal
on the grounds that the court failed to consider something, or maybe failed to
consider something else, or didn't enter any finding of fact to support some
conclusion of law, etc. This part of the case is not an after-thought, so take it
seriously and do it right.
Summing up. I can sum up best by repeating what I've already stressed: to
win a custody fight for Dad, you have to work harder than Mom's lawyer. You
need to dig deeper, know more, and move faster. You need to confront the court's
prejudices and overcome them. As always, the best solution is by negotiation, but
if you have to fight, avoid the low road of mud-slinging; take the high road of
principled, objective, and child-centered comparison of the two parenting plans.
And don't forget your lucky rabbit's foot!
---------------------------------
How to find parenting classes
I don't know of any one place that has comprehensive information about parenting
classes; the best source I know is: http://www.psasadler.org/calendar.htm
One place in Snoho with regular STEP classes is the Providence Everett Medical
Center. If you have a particular location in mind, try Googling "Systematic Training for Effective Parenting" and the city.
One example:
APPLE PARENTING PROGRAM
ACAP CHILD & FAMILY SERVICES
Cheryl Long, APPLE Coordinator
1102 J Street SE, Auburn, WA 98002
253-833-7002 ext. 16 Fax 253-351-0655
www.acapchildservices.org
Apple Parenting is a program of ACAP Child & Family Services offering parenting
classes in Auburn, Kent, Federal Way and Renton. We use the STEP (Systematic
Training for Effective Parenting) curriculum. Classes are age appropriate
including Early Childhood STEP (birth - 5 years), General Parenting (birth 12
years), Parenting the Challenging Child and Parenting Teens. The classes meet
once a week for eight weeks and are taught by highly qualified and experienced
instructors. APPLE Parenting Classes are court accepted everywhere. Open to all
counties. Childcare (2 - 9 years) available at many classes. Course fee: $35.00.
Thank you for caring about kids!
.
If you want to hire me to represent you, or if you just want a consultation, the best way to contact me is to send me an e-mail briefly telling me what's going on in your case -- but before you send me an e-mail, be sure to read the "how NOT to e-mail me" page!