There is nothing more emotional in a divorce case than the issue of custody of the children of the marriage. Getting the custody outcome you want takes careful strategizing and planning with your attorney. Convincing the judge that your position about custody is correct requires a two-pronged approach.
First, your legal team must show the judge that you are an outstanding parent who can provide a nurturing and supportive environment. Second, your legal team must carefully show the judge that the other parent will provide parenting and an environment that is not as exceptional and an environment that is not as optimal.
How Custody Cases Are Decided in New York
New York custody cases are determined based on what is in the best interests of the child. New York courts have a long list of factors to consider when making the best interest determination, which includes the parenting skills of the parents, domestic violence, the parents' mental and physical health, the parents' work schedules, the child's relationships with other members of the family, the child's opinion about custody, and the parents' ability to cooperate and share custody. Because there are so many factors, custody cases can be lengthy and complex.
Why Custody Cases Must Walk a Fine Line
Your attorney must prove two things: that you are a good parent and that the other parent is not as good a parent. It might seem as if the approach should be to hyper-focus on every small fault that can be found with the other parent and crush them. While it is true that serious concerns must be brought to the court's attention, many custody cases do not lend themselves to an extremely black and white contrast between the parents.
In those situations, it's important to make it clear that you support the other parent having a significant role in your child's life. A parent who is unwilling to support and include the other parent is less likely to gain custody. Thus an all-out war against the other parent can backfire, convincing the court that you are unable to cooperate and co-parent as needed.
With these factors in mind, your attorney must construct a careful, nuanced case that highlights why you are the parent who should have custody and raises concern about the other parent's abilities, while still showing how you are able to include that parent in the child's life.
What You Can Do to Assist Your Attorney
It is up to your attorney to present the legal argument to the court about your custody position. However, your attorney cannot alter the facts of the case. As the parent, you can take important steps to assist your attorney, both in highlighting your own skills as a parent and calling into question those of the other parent.
Do the following:
- Heed any advice your attorney gives you about your particular situation and interactions with the other parent and your children.
- Strictly follow any temporary parenting plan or visitation order set out by the court, to the minute if possible. Even if the court has given you only temporary supervised visitation, it is important that you completely utilize it.
- Scrub your social media of any posts that might show you in an unfavorable or questionable light and refrain from posting anything personal moving forward that could in any way damage your case.
- Stay active and involved in your child's life throughout the case.
- Stay true to who you are as a parent, continuing to parent in the same way you always have. This is not the time for fabrications.
- If possible, maintain civil communications with the other parent. Limit communication to custody matters and refuse to allow it to escalate when within your control.
- Reconstruct all the time you have spent with your children over the past six months, using your calendar, texts, and emails to paint a complete picture of involvement. Provide your attorney with this documentation.
- Make a list of all the responsibilities you have when it comes to your children, such as supervising homework, managing the nanny, riding with children to or from school, changing diapers, arranging play dates, clothes shopping, meal preparation, bathtime, attending games or events, and so on. Share this with your attorney.
- Document all the contact you have had with your children's schools, health care providers, child care providers, coaches, and so on over the last six to nine months. Give this to your attorney.
- Make a list of instances in which the other parent has failed to show up for your child – at events, for scheduled visitation, and emotionally/practically. Provide this to your attorney.
- Make a list of serious concerns you have about the other parent. Things such as substance abuse, long work hours, an inability to supervise, unsafe living conditions, inappropriate behavior in front of the children, and so on. Date and describe specific incidents whenever possible. Discuss this with your attorney.
- Create a list of witnesses who have seen you involved and parenting regularly. It's best to find non-family members as possible because they will seem less biased. Neighbors, friends, coaches, teachers, and so on make good witnesses. Give this list to your attorney.
- Create a list of witnesses who have seen your spouse at their worst as a parent. People who can recount specific incidents are best. Supply your attorney with this.
- Gather information about your child's special or unique needs, including medical conditions, educational needs, and exceptional abilities that require support, resources, and attention. Share this with your attorney.
- Gather texts, emails, videos, and recordings you have with the other parent that put their parenting into question. Give your attorney access to these.
Work with the Law Guardian
In many custody matters, the court will appoint an independent attorney, called a law guardian, to represent the children's point of view in the case. This attorney will appear in court and have an important role in the trial. Ultimately, you want the law guardian to agree with your point of view. Therefore, you must be friendly and cooperative when talking with the law guardian. They will want to meet your children and may do home visits to both homes.
Just as your attorney is walking a fine line with the court, you must walk a fine line with the law guardian. You want to carefully portray yourself as the responsible, involved parent who should have custody and carefully raise concerns about the other parent making it clear you believe they should be deeply involved in your child's life.
Custody cases are complex and multi-faceted. With care and good advice, you can achieve the best outcome possible in your situation.