Many people (including some judges) operate under the misconception that mothers would be better suited to raising the children instead of fathers by virtue of their gender. Unfortunately, this stereotype still repeats in many courtrooms in the South, and it’s more prevalent in rural areas than urban areas. The “buck stops” with the individual judge that the case is assigned to, however, and the judge is vested with the wide discretion to decide what is in the best interest of child.
Of course, judges, like everyone else, have their own internal biases and life experiences they bring with them to the bench. A skilled and experienced family law attorney who commonly practices in front of the judge to whom the case is assigned and is familiar with that judge’s leanings and preferences is crucial for guiding the custody client.
Are Custody Cases Difficult For Children?
This is another misconception. Yes, divorce and custody cases can be difficult on children but they don’t have to be and often are not as harmful as parents had anticipated. The anxiety on the children can certainly be minimized if both parents strive for it. There are always ways to shield children from legal details and it’s appalling how often parents involve their children in the process of litigation. I’ve had cases where a divorcing parent has read the contents of court pleadings to the children. This type of self-indulgent and foolish behavior will be detrimental to the children in any circumstance but the divorce process itself often is not as stressful as a party has anticipated. Many clients have told me that their children were actually happy that one parent finally initiated a divorce. The children felt liberated from a “house of pain” in which the parents have fought constantly and whose marriage died long before the divorce papers were finally filed.
My clients are warned from the outset to keep their children on a “need to know” basis and to foster a feeling of affection for the other parent in the children at all times, regardless of personal feelings. Some parents do a very good job of shielding their children’s innocence from the rigors of child custody litigation.
One related misconception about custody litigation is that it should be avoided at all costs and that parents should quickly come up with an agreement to spare the children the pain of their parents’ protracted lawsuit. Parties who rush into an agreement to “just get it over with” can find themselves with a worse scenario than they had when they were still in an unhappy marriage. Often, these hurried agreements benefit the parents’ interest and not necessarily the children’s interest. Before you know it, the parties are back in court, either because one or both of the parents is unhappy with the arrangements, or worse, the children are unhappy.
I have handled numerous cases like that (also known as “buyers’ remorse” cases). In one recent case in which I had not handled the divorce, the husband and wife had hurried into a joint physical custody arrangement in their divorce because their children were young and they were advised by those around them to quickly settle and not litigate. They both ended up miserable with the agreement, the children had adjustment problems, and they wound up in court again. The husband came to me for a modification and said his goal was to “get it right” this time.
It bears remembering that children are much more resilient than anyone gives them credit for. Everybody will be happier in the long run if parents do the right thing and shield their children from the details of their divorce and litigation. Parents can and should also devote time and thoughtfulness to the details of custody planning and invest in competent legal advice in arriving at the best arrangement that works, whether that solution is achieved through settlement or ultimately issued by a judge. Couples who rush into a bad arrangement because they’re terrified of being in litigation may end up doing irreparable harm to their children and end up in court on a modification anyway. Unfortunately it will likely be much more expensive to engage in modification litigation than it would have been to “do it right” the first time.
Talking About it on Social Media
The best course of action is to stay off of all social media during a custody case. If a person must go on social media, he or she should avoid any negative commentary about the other parent and should be extremely careful about any posts. This information can be obtained by the opposing lawyer and used in court. Often posts or emails can be misconstrued and the more a party puts on social media the more fodder is provided for the other side to exploit.
I will never forget the case I had when Facebook first became popular and an opposing party saw no harm in posting a picture of himself smoking a joint (not a great example of using good judgment, which of course is a key characteristic of good parenting). Yes, I used the picture in court and the party did not win custody.
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