If You Can’t Say Anything Nice… How to “Lose” a Parenting Case

Blog | 3.27.2017

Associate Attorney Justin Summers highlights the behavior traps that will make you an unfit parent in the eyes of a Judge. Avoid these mistakes if you want to “win” a custody case. 

The divorce process is likely to be an extremely stressful time for a family, and especially so for families with children. This stress may bleed into your interactions with your soon to be ex-spouse. There were likely reasons why one of you asked for divorce to begin with, and those reasons will probably be center stage when tensions run high. Issues that used to be mole hills may seem like mountains, and small issues can snowball into much bigger arguments.

This becomes a problem when there are children involved. If you are getting divorce, and you have children, the Court will have to enter Orders about where the children spend their time, and who will have authority to make decisions for the children. Unless you can reach an agreement on these issues, the Court will be tasked with deciding the “best interests of the children.” There are a multitude of reasons why having an unrelated third party make major decisions about the future parenting of your children is less than desirable. No one will know your family better than you, and especially not a Judge who will have never met your children. The Court can appoint a professional Child and Family Investigator or Parental Responsibilities Evaluator for guidance, but inevitably, the Court will likely be making a decision based upon a very small snapshot of your life.

The evaluator, and therefore the Court, will be looking at a set of best interest factors. They are numerous, but the factor that seems to trip up even the best parents going through a divorce is “the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party…” Judges generally do not like it when parents fight about children’s issues and they tend to key in on parental behavior intended to obstruct the other parent’s relationship with the children. Common examples of this behavior are:

  • Speaking negatively of the other parent directly to or in the presence of your children

While this may seem obvious, it is all too easy for a parent to highlight their soon-to-be former spouse’s flaws to the child. Children are impressionable, and during a time of uncertainty, look to their parents for reassurance that life will go on. Harsh criticism of their other parent causes harm, and challenges the child’s beliefs about the loving relationships her or she may have with each parent. This is especially common in cases where one parent has a new significant other. Remember, statements of a party opponent are not hearsay, so if you say something inappropriate, there is a good chance that the Judge will see it, and will not like it.

  • Communicating with the other parent through the children

Putting your children in the middle of a legal matter is a terrible mistake. Communicating through your children forces the child to deal directly with the frustrations inherent to a divorce. Additionally, it may suggest to the Court that you are not capable of communicating civilly with the other parent.

  • Failing to realize that the time your children spend with the other parent is meaningful

This may seem less intuitive, but parents often fail to realize that when they divorce, their children will have two homes. This means that they will spend significant portions of time with the other parent. Part of supporting your child means that you take interest in their lives even when they our outside of your care. On several occasions, I have watched parents testify that they do not discuss the other parent in their home. Every time that happens, the Judge has noticed. How can you coparent effectively if your children don’t believe that you care about their lives outside of your home?

  • Scheduling activities without the knowledge of the other parent

Scheduling activities for your children without first communicating with the other parent places the other parent in the unfair position of having to be the “bad guy” or the bearer of bad news, especially the activity falls on the other parent’s time. For example, if Dad tells the children, “I want to take you skiing on Friday, I just have to talk to Mom,” Mom will either be forced to let Dad pull the kids out of school to go skiing, or be painted as the bad guy. This often happens with the scheduling of extracurricular activities, or sports, which commonly span both parents’ parenting time.

  • Withholding consent for the child’s historical activities

Parents sometimes forget that the controlling principle is what is best for the children, not what is best for the parent. Prior to your divorce, you probably discussed what activities would be best for your child together. When parents transition from being spouses to co-parents, these conversations often change. Withholding consent from activities, especially if your child participated in those activities prior to the divorce, could leave multiple negative impressions on the Judge. The Judge could believe that you are withholding consent from the child’s normal activities simply out of spite because they were suggested by the other parent. Additionally, the Judge could find that you are refusing to facilitate activities the child has traditionally enjoyed because they fall on your parenting time. In such case, the Judge may find that you have failed to place the child’s needs above your own.

  • Failing to acknowledge the other parent’s role

Chances are, if you have raised happy and healthy children up until the point of your divorce, both parents had some hand in that. Be prepared at trial to acknowledge the other parent’s role in raising your children. This is one particular situation where the old adage, “If you can’t say anything nice, don’t say anything at all” does not apply. On the stand, you’ll probably be asked to speak about the strengths and weaknesses of your soon-to-be ex. This is a clear litigation trap. You must be able to say something positive, and cannot avoid the question, or you risk being viewed as unsupportive by the Court.

Your lawyer should help you navigate these traps, but sometimes it may be beneficial to enlist the assistance of a counselor or parenting coach to aid you in the transition from spouse to co-parent. They can identify your strengths, help you address your weaknesses, and further, testify on your behalf at trial if necessary.