Custody battles are generally between parents.

Occasionally a grandparent or other person seeks custody. The general rule is that if either natural parent is a fit custodial parent, then the court will not award custody to a grandparent or other person.

The object in litigating custody is to prove that awarding custody to you will serve the best interests of the children. This always means proving that you are a fit custodial parent, and, unfortunately, it often means proving that your spouse is not a fit custodial parent.

The parent who already has custody has a considerable advantage over the parent who is seeking custody. This is true even when no previous court order provides for custody. The longer a parent has had actual custody, the more of an advantage it becomes. The parent who actually has custody has the advantage of being able to show how he or she cares for the children on a daily basis. The parent seeking custody must overcome this advantage by explaining in some detail how he or she intends to care for the children if awarded custody.

It is not enough for the parent living in a one-bedroom efficiency apartment or in a crowded home with relatives to testify, "I plan to look for an apartment or a mobile home or buy a home." Stronger testimony would be, "I have arranged to rent a three-bedroom apartment at 860-H Lucas Street so that the children will not have to change schools and will be in the same neighborhood with their present friends. I intend to purchase a home in that area when I know what my financial ability will be, which I cannot do until this case is decided, and I can find something suitable with three bedrooms in the same area, so that the children will not have to change schools."

Your plan for custody should include shelter, food, clothing, medical and dental care, education, religious training, transportation, child care, and provision for all other needs and problems that must be faced to provide for the best interests of the children. Schedules are important to show that you can be with the children when they are not in school or to show that you have adequately planned for the children when they are not in school.

In presenting your custody plan, supplementing your testimony with pictures is effective. Subjects for pictures include the interior and exterior of your proposed home including bedrooms, furnishings, family areas, play and recreation areas, sidewalks, rarely traveled streets, and the children at play with other children in the neighborhood. Other good subjects for photographs include the appropriate schools, churches, and extra-curricular activities, plus the day care centers the children will attend, and the homes of relatives who may help you with child care.

Be prepared to testify about what needs of the children you have met in the past. The person who was a good parent before separation will probably be a good parent after separation, although parents who have not participated fully in child-rearing may cultivate and improve their skills as parents to a surprising degree after separation. Getting up and changing diapers, feeding, bathing, clothing, disciplining, and training children before separation does a lot to establish your credentials as a parent. Your past activities with the children can be persuasive. Conferences with teachers, attendance at school activities, and participation in parent-teacher organizations help show concern for the children.

The best witnesses to support your case for custody are the parents of your children's friends. Their testimony will show that you have a good relationship with your children and other children. It will also show that you spend time with your children, and that other parents trust you with their children.

Relationships, particularly adulterous relationships that could adversely affect children have a bearing on custody decisions. Live-in relationships are a frequent basis of disqualification for custody. Adulterous relationships become less of an issue if the adultery did not take place while the children were in the care of the adulterous spouse or if that parent marries the paramour.

These considerations are not complete but should give you some ideas about how you go about proving that you should have custody. The reverse of your positive points may show your spouse as an unfit parent or as a less desirable parent than you.

Presenting the Case for Visitation

Visitation is a form of custody and many of the same principles apply. Unless one is a thrice-convicted child-abuser, the non-custodial parent will almost certainly be awarded visitation. The amount of visitation, however, is much less certain, particularly with very young children.

Presenting a case for visitation is similar to presenting the positive facts for custody. Most trial judges are receptive to any serious, well-considered proposal for visitation. The most frequent reason for limitation of visitation is the judge's belief that the non-custodial spouse is unable to care for a young child for long periods or overnight.

Many clients want the other parent’s visitation to be supervised. I discourage supervised visitation because I believe that supervised visitation is no visitation. Trial judges often require that visitation be exercised in a “safe, sober, and moral atmosphere,” meaning no drugs, alcohol, and no paramour during visitation.

My Favorite War Stories #16:
A Successful Trial Strategy



It was the most contentious custody case I ever tried. We were not favored to win. It was a nightmare in every respect, involving at least four judges, each party hiring a new lawyer, several counselors and psychiatrists, school officials, ministers and church members, three guardians ad litem, and the Department of Social Services. The trial lasted five days.

In preparing for trial, Erin and I met with our client. We devised a strategy whereby we would not ask our client, the wife, a single question that required her to say anything negative about her husband and that she would avoid negative statements, if honestly possible, when responding to the other lawyer’s cross-examination. She admitted her mistakes without blaming her husband. I developed the negative facts regarding the husband from my questions to him and to his witnesses. This was not difficult because he had written some e-mail messages that he probably regretted. The result was that our client appeared as a positive person who honestly admitted her mistakes while the husband appeared as a negative, mean-spirited, and defensive person. The trial judge granted sole custody to our client and ruled favorably to her on the other issues. Erin and I learned much from this case. Since then, we try to avoid our client appearing to attack his or her spouse.