Lately I find myself giving my family law clients the same advice over and over again: "Give your Ex enough rope to hang themselves." Combative Exes are their own worst enemies. Give them the opportunity to hurt to their own cause, and they will always take it.
This can be a very hard thing for my clients to understand, as giving your Ex "rope" is counter to human instinct. For example, your child is in distress and could benefit from speaking to a therapist, but your Ex, with whom you share joint legal custody, won't consent to therapy. The instinctual thing to do is to take your child to a therapist anyway. But by taking unilateral action, even if it may be in your child's best interest, you are ignoring an opportunity to let your Ex hang herself. Think about it? What parent wouldn't want their distressed child in therapy? A parent who is afraid of what their child might report to the therapist. Get a court order to get your child in therapy and then the court will become suspect of why your Ex doesn't want your child in therapy. Your Ex will end up hanging herself in court trying to explain why your distressed child shouldn't have a therapist.
Another reason to let your Ex "hang" his or herself: By being overly-proactive in the above scenario -- by enrolling your child in therapy without a court order or your Ex's consent -- you are actually hurting your own case. Your Ex now has ammunition against you. She can bring to the court's attention your failure to co-parent and your failure to adhere to the joint legal custody order. You then become pegged as a "parental alienator," buzzwords that courts love to use but unfortunately rarely understand. Little good comes from unilateral action, even with the best of intentions.
Sometimes giving your Ex rope means you must choose to do nothing, which is extremely difficult in the era of texts and emails. It means you have to make a conscious effort to resist responding to your Ex's personal attacks in their snarky messages. The minute you fire back a snarky message of your own, you establish a record that your Ex can bring before the court to show that you are the uncooperative parent, or at least as uncooperative as he is, which helps neither of you. And there is nothing more valuable in a family law case than one's reputation before the court.
An attorney colleague once asked me to make an emergency court appearance on one of her cases. Her client was seeking sole legal and physical custody of her children and a no-contact order against her ex-husband, whom she claimed was harassing her via disparaging and insulting text messages. When I appeared in court on the client's behalf, I met the ex-husband and his attorney and they were very eager to settle the issue. Through them I learned that the ex-husband's nasty text messages to the client were in fact responsive to inflammatory messages that the ex-husband had received first. Had the ex-husband simply not responded, the client would have had no grounds for her emergency application for custody.
The client decided not to settle the issue and I won a temporary restraining order against the ex-husband based on his messages. I didn't consider it a victory, though, as the whole situation could have been obviated had the ex-husband simply not responded to the messages he received. Had he done nothing, he would've had the upper hand. One text message can change the court's perception of a litigant.
The immediacy of text messages too easily brings out the worst in people. I can't tell you how many times I've been in court simply because someone hit the "send" button on their cell phone without thinking. Before a family law litigant sends an email or text message to their Ex, they should always think to themselves: "Is this something I would take the time to sit down and handwrite in a letter?" More often than not, the answer will be "no."
When it comes to custodial disputes, sometimes you have to resist your knee-jerk reactions and realize the best action can be no action at all. Let your Ex spin his/her wheels, because inevitably, they will crash.
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