As a matrimonial law attorney who regularly represents mothers and fathers in contested divorce trials, I have very some straight forward advice for parents going through divorce, and who are contemplating a custody action. More than ever, I am counseling mothers on how to not lose custody of their children.
From the outset, it is important for mothers and fathers to recognize that married parents of minor children start out with joint custody rights. This means that both parents have equal rights to their children, and the same right to pursue custody of their children in their divorce case. In a world where many households contain two working parents, and many fathers have an active role in raising their children, the presumption that mothers will automatically get custody no longer exists. In fact, statistics show that fathers who seek primary custody of their children are awarded custody 50% of the time. Custody laws are gender neutral, and this means that when the facts of a given case are applied to the governing law, a court may determine that it is in the best interests of the child to live primarily with the father, not the mother.
Now, here is a list of the seven most common pitfalls of parties going through custody actions. Moms, if you want to lose your custody case, here is the way to do it. If you are a parent and you want to win custody, steer clear of the following:
1. Not being the primary caretaker: In most households, one parent is most responsible for caring for the children's basic needs -- the so called primary caretaker. The parent who is the most involved in the children's daily lives usually has the edge in a custody case. Therefore, if you are not putting in the time to do homework with your child, feeding, bathing, reading, taking him or her to the bus stop, you are at a disadvantage in a custody case. There is no better way to lose custody than to demonstrate to a judge that you are simply not involved in raising your child.
2. Not being active in your child's schedule and activities: Do you know the names of your child's teachers? Have you ever supervised your child on a play date or taken your child to the doctor? Do you regularly attend school conferences and school events? If the answer to these is no, then it is an indication that someone else (i.e. the other parent) is the primary caretaker, not you.
3. Not addressing alcohol, drugs, or other parental fitness issues: A parent who even casually partakes in alcohol and/or drugs will have a problem winning custody. Most judges will take allegations of substance abuse seriously, and these allegations will be investigated thoroughly via random testing, psychological evaluations, and interviews. If you have an issue with substance abuse, then seek treatment for it immediately. If you are the perpetrator of domestic violence or abuse (which often goes hand in hand with alcohol use), this also pretty much guarantees that you will lose custody.
4. Leaving a paper trail that will hang you in court: Thanks to new technology, virtually every custody trial features the submission of evidence that can be used to portray the other parent in a very damaging light. Sometimes the evidence can make or break the custody case. The evidence can include text messages, photos and negative emails. Also potentially harmful are video and voice mail recordings (a la Alec Baldwin). If you are prone to sending impulsive emails and texts, ranting and raving at the other parent, third parties, or your own child, you are at risk of losing custody.
5. Disparaging the other parent. Judges tend to look favorably upon a parent who demonstrates that he/she supports the child's relationship with the other parent. A parent who is constantly denigrating the other parent, leaking anger, and negatively influencing the child's relationship with the noncustodial parent will be reprimanded. In extreme cases, there will allegations of parental alienation and interference with parenting time. Many judges will consider a change of custody if this type of interference is shown. Bottom line: if you want to show the Judge that you will promote the best interests of your child, then you need to show that you recognize the value of the child's relationship with your ex, and will take the steps to encourage that relationship. Of course, when you are going through an adversarial proceeding with someone you don't like very much, it can be very hard to put those feelings aside for the sake of your child. But that is exactly what you need to do if you want to prevail in your case.
6. Showing lack of control: It is critical to consistently act with good judgment and self control if you want to win custody. A parent who regularly loses control, and who cannot control his/her anger will be at a disadvantage. I have handled many cases where a litigant will lose control right in the courtroom, in front of the Judge. An angry outburst in court will be remembered. Similarly, a parent who acts out in front of the child's attorney, social workers, teachers, neighbors, etc. will find himself confronted with a lot of negative testimony and evidence at trial. This is where the voice mails and emails also come into play. If you are serious about winning custody, then you must exhibit self control and put your child's needs first. Going through a divorce is a difficult, emotional process. A custody case raises the stakes considerably. If necessary, seek counseling to get your anger under control. At the very least, taking this step will likely lead to improved relationships with your ex, other third parties, family members, and your child.
7. Failing to follow your attorney's advice: Going through a divorce and/or custody proceeding is one of the most stressful experiences there is. Whether you are seeking primary custody of your children, joint decision making, or a customized parenting plan, your goal should be to survive the process while protecting your rights to your most valuable asset -- your children. It is critical that you seek out the advice of an experienced family law attorney, who has handled contested custody trials (not the attorney who did the closing on your house, or the lawyer who charges the lowest retainer to do an uncontested divorce.) With an experienced advocate by your side, you can avoid making the mistakes outlined above, and you can be successful in your custody case.
JACQUELINE HAROUNIAN, Esq., a Partner of The Law Firm of Wisselman, Harounian & Associates, P.C., adeptly handles complex family and matrimonial litigation, appearing on divorce, custody, and support matters in the Family and Supreme Courts in Long Island and New York City. Ms. Harounian was selected for the 2011 New York Super Lawyers list (only 5% of the New York metro area attorneys are named to this list). She is recognized as a leader in the field of matrimonial and family law and is committed to providing the highest quality legal representation. Although Ms. Harounian is an experienced trial attorney, she believes that a negotiated settlement, rather than litigation, is the best strategy for her clients. Ms. Harounian graduated from Columbia College and Hofstra University School of Law. Please connect with Wisselman, Harounian & Associates, P.C. on Facebook and on Twitter at Wisselmanlaw and learn more about our law firm and Jacqueline Harounian at www.lawjaw.com.
Hayley Meachin: Can Social Workers and Journalists Ever Be Friends?
She is speaking from EXPERIENCE , in a court of law , after going to law school . She is entitled to convey her OWN experience and what knowledge she has gleaned from that . She cannot cover every case that she has not seen , or listen to every person bi-atch about their personal issues with the courts. And how may I ask have you come by your yard sale of information ???
A young woman Katie Tagle walked into a San Bernardino, CA courtroom seeking protection for her 9 month old baby.
There IS no doubt that Katie Tagle was telling the truth about her abuser, and father of her child, Stephen Garcia. Garcia beat Katie Tagle unconscious and had more than one restraining order against him. The judge was aware of these facts.
Katie Tagle begged Judge Lemkau to protect her and her son as she presented hard, credible, written, evidence of threats by Garcia to kill their baby. Garcia claimed “Parental Alienation” in Court that day, and it worked, as it usually does, like a charm. Judge Lemkau did not believe Katie; he called her a “LAIR” & sided with Garcia. As these cases go, Lemkau ruled on feelings and hunches, not on evidence presented to him in open court.
As Garcia left the courtroom, he flashed a smirking, victorious smile at Katie and the next time he had unmonitored visitation with their baby, Garcia shot baby Wyatt through the chest with a high caliber bullet and then turned the gun on himself. Over a 160 such murder/suicides I am aware of that have taken place since Garcia pulled the trigger in Jan. of 2010. Huge untold story.
In response to many of you, let me say that every case is unique. I certainly do not mean to imply that the guidelines above are true of every case. I represent both fathers and mothers in equal number. I've handled cases where the better parent is the father. I've seen mothers walk away from their children. But in most cases, parents are equally fit. It's their own behavior and attachment to the children that affects the outcome.
I understand that there are awful, unfair outcomes in many cases, that have very little relation to the best interests of the child. The Family Court system is far from perfect. However, I can truly say that in the vast majority of cases, the judges do care. They do weigh the evidence. All other factors being equal, the primary caretaker usually prevails. You cannot fool the judge about this. The system usually gets it right.
More advice: You don't need to have primary custody to be an excellent involved parent. You just have to love your child more than you hate your spouse. This isn't easy to do, but it can be done. Remember, you chose your child's other parent. No one did that for you. It is your responsibility, for your child's sake, to put the anger aside and take the high road. Don't give up on loving your children. Best of luck to all of you.
No one in the divorce industry can make a credible pronouncement in a case that having five overnights or seven overnights with dad every two weeks will affect the well-being of the children at issue.
And of course there is the nauseating statement the divorce lawyers make after they have billed their client to the maximum and want to have the case settled even if on bad terms for the client: "You don't need to have primary custody to be an excellent involved parent".
YOU DON'T NEED A DIVORCE LAWYER TO TELL YOU HOW TO BE A PARENT OR WHAT KIND OF A PARENT YOU CAN BE. DIVORCE LAWYERS ARE NOT PARENTING EXPERTS. YOU SHOULDN'T (HAVE TO) PAY A DIVORCE LAWYER TO BE TOLD THAT KIND OF NONSENSE.
Divorce is not the time and divorce court is not the place -- and divorce lawyers are not the people -- for family social work.
It is a joke. Except it is not funny.
If you are battered the police say it is a Family Law matter and send you back to the Court. The DA does the same thing. Kids can show evidence of neglect, battery and molestation and Child Protective Services, police and DA look at the reporting parent with suspicion and defer to the Courts, the lawyers and the cottage industry of evaluators, therapists, minor's counsels, and visitation monitors that make handsome livings off of litigants and their children.
If both parents are equally fit then why -- other than to transfer assets from the divorcing household to the divorce lawyers/divorce industry -- is the issue of child custody/placement not concluded at that finding with an order of equal placement time to each equally fit parent?
Why? Because it isn't about your children. It is about your money.
What happens is that divorce lawyers who have no training as to child-rearing and psychologists who can make no accurate prediction as to what is in the best interests of the children present a case that never should be made to a judge who never actually meets the children who are affected.
"Fit Parents" don't batter their spouse or molest the children, or refuse at all costs to pay their fair share of support. Fit parents; go back to their original roles for the sake of their children. Most of the time, the mother was the primary caretaker and worked in within the family for no remuneration.
A fit father goes back to work and pays a fair amount of child-support and spousal support until the mother gets back up on her feet with training and a job once the children have adjusted to the divorce. A fit father, a good guy doesn't quit working, destroy his income or hide money and then insist that he trade roles his wife, and become a stay at home dad! That is what a slacker does.
More and more slackers pop up each day, enticed by "niche" lawyers promising that mommy will be paying daddy child-support on her 9 dollar an hour job. Lawyers actually advertise the legal techniques, and lessons, at a price, of course, to achieve this goal. It’s a big business, and the benefits are tremendous to those with the skills to work the Court system. Such legal abuse destroys the weaker party and their children’s lives.