How to Gain the Upper Hand in Contested Custody Litigation

Happy Holidays everyone! I hope that all my readers have had an awesome time with family and friends. Unfortunately, the holidays are not a pleasant time for everyone. Especially for people involved in protracted custody litigation. Specifically, holiday custody visitation schedules are often a source of conflict between warring parents involved in divorce and custody litigation. And despite the warm holiday spirit that surrounds the holidays, many parents involved in custody litigation are unwilling or unable to work things out. Sometimes, this is the result of the unreasonableness of one or both parents to co-parent in order to further the best interests of the children.

In my last post, I wrote about the importance of divorcing couples or feuding parents voluntarily agreeing to go through mediation in order to finalize their divorce or custody feud in a peaceful manner, especially for the best interests of the children. However, it takes two to tango and sometimes, litigation is unfortunately necessary if one parent is being unreasonable.

Whether you plan on representing yourself (not recommended at all) or you have an attorney or plan on retaining one, you should heed the following advice if you are involved in custody litigation or plan on filing for custody:

1) Anything you say and do can and will be used against you in court. This is especially true of written communications (texts, emails, social media posts) that you send to the other parent or that is readily accessible by your -ex on social media or your -ex's friends and family. So please take care to be mindful of what you post on social media. This is not related to family law exactly, but there was an instance where a person claiming to be severely injured due to a car accident posted a picture of himself climbing Mount Everest. That's not exactly an activity a "severely injured" person should be bragging about on social media.

2) Anything your -ex or the other parent says and does can and should be used against him/her in court. If you're smart, not only will you exercise cautious judgment when you contact your -ex or the other parent, you will only contact the other parent via written communications such as text messages and emails. Text messages and e-mails are easier to admit into evidence at custody hearings (called RFO's by Family law attorneys) than statements that the other parent orally made. Here's a practical example. Let's say that there's a custody order that states that you're supposed to have visitation with your child at 9 am on Christmas Eve but you have a feeling that your -ex is going to screw you over. A few days before Christmas Eve, send your -ex an email confirming that you plan on exercising your Christmas Eve visitation based on the custody order giving you visitation on Christmas Eve. If your -ex withholds the child or prevents you from having visitation, send him/her another email to confirm that he/she prevented you from having court-ordered visitation.

3) Unless your -ex is clearly physically or emotionally abusive, send him/her written communications wherein you encourage them to agree to 50/50 Parenting to further the best interests of the children. Again, this advice assumes that your -ex isn't abusive or neglectful of the children. Winning custody battles is not only about shining a spotlight on your -ex's behavior. It's more important to shine a spotlight on why YOU are an effective and positive parent for your children. What this means at a practical level is that you should emails or text messages (emails are more effective) explaining to your -ex why it is important that you and your -ex compromise and split custody/visitation 50/50 because it is what is best for your children.

4) Involve 3rd Party Witnesses. Often times, Family Law Judges are close-minded to the testimony of the parents because - if we're being honest - the testimony of the parents is often biased and self-serving. For these reasons, you should talk to your attorney about asking neutral 3rd parties to submit written declarations (under penalty of perjury) to the court or if possible, come to court to give live testimony. When I say neutral, I am referring to non-family members. Here's a good example. Often times, one parent will be awarded a very generous visitation schedule where he/she has the child(ren) for 5 days and the other parent (if they're lucky) will get the weekends, or if they're not as lucky, will get the children on every other weekend. In this case, it would be wise to ask your attorney to subpoena the children's school attendance records and progress reports to see how your children are doing academically while under the primary physical custody of the other parent. And more specifically, it might be helpful to subpoena or ask (it's better to ask nicely first) your child's educators to come to court to give their testimony about how the other parent's parenting (or lack of parenting) has adversely affected the child's academic performance or perhaps, adversely affected them at an observable emotional level.

These are just a few of the many things you should be doing if you find yourself in the unfortunate situation of being involved in child custody litigation despite trying your best to compromise with the other parent to further the best interests of the children. If you have any further questions or require representation for your custody litigation, do not hesitate to contact the Law Office of Brian Nguyen!

Until then, have a happy New Year!

DISCLAIMER: The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. Information provided on the website is provided "as is" without warranty of any kind, either express or implied, including without limitation, warranties of merchantability, fitness for a particular purpose or noninfringement.

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