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.
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