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Seven Mistakes to Avoid in a Child Custody Battle
By James L. Lane, Esq.
2 1 6 . 6 9 6 . 8 70 0 + K J K . CO M
1375 East Ninth Street | One Cleveland Center, 29th Floor | Cleveland, Ohio 44114
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Seven Mistakes to Avoid ABOUT THE AUTHOR
in a Child Custody Battle
James L. Lane
Partner
Direct: 216.736.7201
E-mail: jll@kjk.com
Jim brings nearly 20 years
of experience to his work in
domestic relations and family
law, serving hundreds of fami-
lies on matters such as divorce,
HIGH CONFLICT child custody cases can
be brutally difficult and severely stressful.
Parental Mistake #1: Failing to Control Their child custody, dissolution,
Parents who are fighting for custody of
Emotions: alimony and child support is-
The inability of parents to consistently control their sues, juvenile court proceedings
their kids are thrown into a daunting legal for unwed parents, prenuptial
emotions, and avoid emotional decision making, is
vortex while facing the nightmare of losing agreements and adoptions.
the most common mistake we see in child custody
custody of their children. This incredibly Jim’s work often involves
cases. The reason: it is such an easy mistake to make,
emotional process can bring out the worst complex cases marked by high
and so pervasive in all aspects of the case. Child
in some parents. conflict and emotion, so he
custody matters, by their very nature, are emotional
Unfortunately, many attorneys who do is valued by his clients for his
proceedings that are bound to cause parents some
this type of work focus on the procedural empathy, listening skills and his
amount of anxiety and stress. It is only natural to
and legal aspects of the case and fail to ability to help them clearly un-
become angry and frustrated with a spouse who makes
coach their clients on how to actually win derstand the process. Whenever
poor parenting decisions and violates court orders,
the case. They offer precious little advice possible, he pursues amicable
or with a judge who issues orders you disagree with.
to parents about procuring evidence and resolution out of court, but Jim
Unfortunately, that anger and frustration can cause a
making a favorable impression upon also is known as a fierce and
parent to make emotional decisions which are not in
the judge. This void of information and dogged advocate for his clients
the best interest of their children, or in the best inter-
advice may lead clients to make avoidable when litigation is necessary
est of their custody case. to protect their parental and
mistakes with negative consequences.
Emotional decision-making can infect nearly every property rights.
While every child custody matter is
aspect of a child custody proceeding, and often leads Jim is one of only a few at-
unique, there are some universal truths
to regrettable outcomes. Why do some parents violate torneys in Ohio to receive the
that apply to all cases. Our extensive
temporary visitation schedules when they have been designation of Certified Family
experience litigating custody cases over the
advised by counsel to follow the court order? Invari- Relations Law Specialist by the
past seventeen years has revealed the seven
ably, it is because they are angry at their spouse and Ohio State Bar Association.
most common mistakes parents make
overly emotional about the “safety” of the children. He is married with two young
when fighting for custody. By identifying
Why do some parents say negative things about their boys, and his own experience
and discussing these mistakes we hope
spouse in front of the kids when they know that doing with fatherhood has further
to help parents avoid these pitfalls and enhanced his understanding of
so is harmful to the children and their custody case?
increase their chances of obtaining a posi- the struggles his clients face,
Almost always, it is because they were emotional and
tive outcome in their case. especially in cases involving
blurted something out without thinking it through.
While discussing this topic, we will child custody.
Why do some parents insist on seeking sole custody of
presume the child custody case is occurring
their kids when logic and evidence dictate that shared
within the context of a divorcing couple.
custody is the most likely outcome of the case? Almost • KJK Advocate
However, many child custody battles occur
without exception, it is because that parent is making
between couples who were never married. • Domestic Relations &
an emotional decision and ignoring logic, reason and
The advice contained within this article Family Law
the advice of counsel.
applies equally to parents who were never
Avoiding emotional decision-making seems like • Litigation
wed.
“I HAVE BEEN DRAWN TO FAMILY LAW BECAUSE OF HOW PERSONAL THE ISSUES ARE. I KNOW
THAT THE ISSUES INVOLVED WILL HAVE A PROFOUND EFFECT ON A FAMILY’S DAY-TO-DAY LIFE.
THIS KNOWLEDGE MOTIVATES ME TO FIGHT RELENTLESSLY FOR EACH CLIENT AND THE POSITIVE
OUTCOME THEY’RE SEEKING.” – JAMES L. LANE
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the easiest advice to accept and put into There are many ways a parent can united front is one of the keys to effective
action. However, experience proves it is support their child’s relationship with the co-parenting. Of course, if the children are
consistently the most difficult mistake for other parent. The simple act of speaking complaining of abuse or neglect, action
parents to avoid in a custody fight. There kindly about their spouse when conversing must be taken to determine the validity of
will come a time in every high conflict case with the child goes a long way to support those complaints;
in which the litigant will be placed into that relationship. Making sure that phone - Maintain a reasonable level of flex-
an impossible situation by their spouse, calls, texts and emails from the spouse ibility when requests are made for minor
and they have every right to take the “low get through to the child is helpful. Most adjustments to the temporary visitation
road”. It takes a tremendous amount of importantly, each parent should make sure schedule. Extreme adherence to the sched-
courage, integrity and focus on the part they facilitate regular visitation between ule will only serve to prove to the court
of a child custody litigant to consistently their spouse and the child (per the visita- how unreasonable you are;
take the “high road” and avoid emotional tion schedule), and refrain from making - When speaking to a child custody
decisions. Those who do are well on their negative comments about their spouse in evaluator or GAL, be sure to express your
way to winning their child custody case. front of the child. support for your spouse’s relationship
It is important to remember that with the child. Do not directly attack your
Parental Mistake #2: Failing to children are incredibly perceptive, even at spouse or their parenting abilities, but
Support the Spouse’s Relationship a very young age. They pick up on subtle express your reservations or complaints
with the Child: body language and sarcastic comments. It about your spouse within the context of
One of the key factors Family Court takes a significant amount of vigilance and your concern for the health and safety of
Judges consider when determining custody willpower to consistently avoid sending the children.
is the ability and willingness of each parent children the wrong message. Here are some
to support the relationship between their tips for parents to help them demonstrate Parental Mistake #3: Failing to
spouse and the child. Frequently, this fac- support for their spouse’s relationship with Comply With Visitation Orders:
tor alone determines the winner of a child the child: Few things will infuriate a Family Court
custody case. - Purchase presents and/or greeting cards Judge more than a parent who violates
Certainly, there are situations in which for your spouse to be given as gifts from visitation orders. Absent extraordinary
it is inappropriate for the children to have your child for birthdays and holidays; circumstances, parents should allow visita-
unsupervised contact with a parent. Some - Keep a picture of your spouse in your tion to occur in accordance with the court-
cases involve physical or sexual abuse. child’s bedroom, and in your family room ordered temporary visitation schedule.
Other cases involve a parent who has sub- (most parents have a hard time with this A number of pervasive myths exist with
stance abuse problems, or severe mental one); respect to visitation orders which must be
health issues. In these circumstances, it - Facilitate a phone call from your child explained and dispelled. First, custodial
may not be in the best interest of the kids to your spouse when the child has reached parents often believe that if their spouse
to have regular parenting time with a par- a developmental milestone or achieved a has failed to pay child support he is not
ent. However, these situations are relatively victory at school in order to share in the entitled to visitation with the kids. This is
rare. In the vast majority of cases, both celebration (Facetime or Skype is even not true. Child support is not directly tied
parents are entitled to play an active role in better); to visitation rights in most states. In fact,
their children’s lives. - Communicate to your spouse all failing to allow court-ordered visitation
Research has proven that children have information about the kids in a timely between a child and your spouse is one
the best chance to grow into productive, fashion, following the golden rule (provide of the quickest ways to lose custody of
healthy adults when both parents play an as much information as you would want to that child, regardless of the status of child
active role in raising them. Conversely, receive if the roles were reversed); support payments.
when children are coached to reject one of - Listen to complaints expressed by the Second, some custodial parents believe
their parents (i.e., parental alienation), re- children about your spouse with empathy they have a right to withhold a child
search shows these children are at a much and concern, but refrain from voicing from visitation if the child says she does
greater risk of developing psychological condemnation or judgment of your not want to go on the visit. Again, this is
and emotional problems as adults. spouse in front of the kids. Maintaining a not true. In almost all states, the child’s
opinion regarding visitation is not control-
ling. Judges will consider a child’s opinion
when making a final custody determina-
tion, but that is only one factor amongst
many they weigh when crafting a visitation
schedule that is in the best interest of the
child. The days of a child choosing who to
live with once they reach a certain age are
long gone. Legislators smartly determined
that forcing a child to choose a residential
parent was harmful to the child, as doing
so necessarily requires the rejection of the
other parent.
Failing to comply with visitation orders,
or any type of parenting time schedule, is a
double whammy for the offending parent.
Not only are they disrespecting the Judge
by failing to follow his or her orders, but
they are also interfering with their spouse’s
relationship with the child. Parents who
make this mistake often find themselves
on the losing end of child custody battles.
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Parental Mistake #4: Failing to
Take Advantage of Parenting Time:
If a parent is seeking primary or joint
custody of their child, the first step in that
process has to be exercising all available
court-ordered parenting time during the
pendency of the case. Failing to consis-
tently show up for visitation is a sure-fire
way to lose a custody fight. There are few
things sadder than watching a child stare
out a window in vain for a parent who
never shows up for visitation. That feeling
of rejection can stick with a child for a
lifetime.
It is also vitally important for parents to
be on-time for visits, and make the most
of the parenting time. A Judge will not be
pleased with a parent who consistently
shows up thirty minutes late for visits with
the child. The same is true for the parent
who exercises visitation by leaving his kids
with a babysitter while he goes on a date
with a new girlfriend. A big part of being a
good parent is simply being there for your
kids. If a parent cannot make themselves frequently does not take much thought good parenting decisions. What separates
available to their child when the opportu- to accomplish. A simple example of this the great parent from the mediocre parent
nity arises, they shouldn’t expect to win a process occurs when a child gets sick. A is consistency. The parent who can consis-
custody fight. good parent quickly identifies the child’s tently identify, prioritize and meet their
Further, it is not enough for a parent need for assistance. In this case, that need child’s needs, in all aspects of the child’s
to spend time with their kids during might be to see a doctor. Next, they might life, is the one most likely to be named the
visitation and then check out of their life prioritize that need above their own by residential parent and legal custodian.
when the kids are with the other parent. taking time off work to bring the child to Here are a few tips for parents to follow
Each parent should have regular phone the doctor, or canceling dinner plans with in order to demonstrate good decision-
or Skype contact with their kids when not friends to care for the sick child. Finally, making ability:
with them. Further, each parent should be the parent takes appropriate and timely • Help with homework whenever
intimately involved in the child’s school, steps to meet the child’s needs by taking possible, making sure it is completed and
including attendance at parent-teacher him to the doctor, getting a prescription turned in each day;
conferences and school functions. Both filled, and ensuring that he rests and takes • Make sure the kids get to school
parents should attend pediatric appoint- the medicine as prescribed. Most of this on-time, every day. If a child is going to
ments when possible, and if the children is intuitive and simple, but it is surprising be absent from school because of illness,
are in therapy, both parents should have how many parents cannot consistently inform the other parent;
regular contact with the therapist. follow through on these steps. • Do not forget to take children to their
Finally, both parents should make an A more complex example of this process therapy or tutoring sessions, as well as
effort to set up play dates with their child’s occurs when a child is having trouble at extra-curricular activities. Do not forego
friends so that each parent is entwined in school, with poor grades and behavioral the kids’ extra-curricular activities simply
the child’s social life. If you want a child problems. A parent making good parenting because you feel it is an intrusion on your
to feel at home with you, one of the fastest decisions might have to work hard to parenting time. Do what is best for them,
ways to get there is to let them invite their identify the child’s real need, speaking not you;
friends over. to teachers, guidance counselors and • Make sure young children are properly
classmates to diagnose the problem. The fastened into car seats when driving, and
Parental Mistake #5: Failing to child might have to be tested to determine that anyone transporting the children is a
Make Good Parenting Decisions: if there are learning disabilities. Next, the licensed and insured driver;
Nearly every aspect of good parenting parent must prioritize the child’s needs • Keep guns locked in a safe;
can be broken down into a three-step above their own. This might entail finan- • Do not abuse drugs or alcohol during
process: cial sacrifices to hire a tutor or therapist for the litigation process, and certainly not
(1) Identify the child’s needs; the child, or sacrifices related to time in when you are responsible for caring for
(2) Prioritize the child’s needs over your order to offer more help with homework. your children;
own needs; and Finally, the parent must take appropriate • Do not leave the children unsupervised
(3) Consistently take action to meet the action to meet the child’s needs by not for any length of time unless they are at
child’s needs in a timely fashion. only getting him the necessary assistance least 12 years old. After age 12, do not
The parent who can master this process but by also following up with teachers, leave the kids alone for extended periods
of identifying, prioritizing and meeting counselors, tutors and therapists to make of time;
their child’s needs, on a consistent basis, is sure the problem is solved. • Monitor your children’s social media
likely to be an excellent caregiver. Parents Judges make custody determinations habits and Internet usage, restricting access
who fail to consistently follow these three based upon a “best interest of the child” when necessary;
steps when making parenting decisions are standard. A significant part of that process • Do not sleep overnight in the same
rarely granted custody of their kids. is determining which parent consistently bed with your child, as every expert will
The three-step process to parental makes sound parenting decisions for their tell you this is unhealthy for both the child
decision making is often intuitive, and child. Most parents can occasionally make and the parent;
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• If you must date during your divorce, custody battle. All the client has to do is take children, including visitation pick-up and
do not introduce your kids to your new advantage of this misstep and preserve that drop-off times. Especially important is the
romantic interest until the custody case is text message, or record that conversation, frequency of the journal entries with an
over; then let their attorney offer it into evidence. eye towards submission as an exhibit in
• Do not pull your children into the Many custody cases have been won with court. The more frequent the entries, the
middle of the custody conflict by asking a recording of a parent screaming at their more valid the journal becomes;
them who they want to live with. Do not spouse in front of the child. - Use your cell phone or tablet to record
make them feel guilty when they leave for face-to-face interactions with your spouse
visitation by telling them how much you to preserve inappropriate statements for
are going to miss them and how lonely you the record. In cases where there is a history
will be without them (a very common oc- of violence or overt threats, it is a good
currence, this is subtle parental alienation idea to have a friend or family member
at work); videotape all child exchanges between
• Avoid creating a symbiotic relation- parents.
ship with your child in which you must - Consider recording your phone calls
constantly experience the same emotional with your spouse for the same reasons.
states of being. Just because you are sad Be sure to consult with your attorney to
doesn’t mean your child should be sad, determine the legality of recording phone
and vice versa. Just because you are angry calls in your state. For example, both Fed-
at your Husband doesn’t mean your child eral and Ohio law allow for the recording
should be angry at his Dad. Symbiotic re- of your own telephone conversations, but
lationships between parent and child often recording someone else’s phone conversa-
lead to significant emotional problems for tion with a third-party is illegal.
the child;
• Educate yourself. There are many great
Parental Mistake #7: Failing to
books available on the topic of helping Hire an Experienced Family Law
your child through a divorce or custody Attorney:
change. A simple Amazon search will turn Choosing the right family law attorney
up dozens of such titles. Take the time to to handle a child custody case can make all
read at least one. the difference in the world. It is important
to look for an attorney who not only has
Parental Mistake #6: Failing to prior experience handling custody cases,
Procure Evidence: but specializes in family law matters. It is
Child custody cases, like all litigation, also vitally important that the attorney and
are about what you can prove, not what client be able to communicate effectively
you know. To a certain extent, every child with one another.
custody case is a he said/she said affair. The Parents should feel comfortable with
litigant who can supplement their claims their attorney, and confident in his or her
with hard evidence is the one with the best abilities. Litigants have a right to be treated
chance to win. with respect by their attorney and the
In some cases it may be worthwhile court, to have their questions answered in
to hire a private investigator to dig up Here are some suggestions for parents a timely fashion, and to be kept up-to-date
evidence. There is nothing quite as power- to help their attorney gather evidence in a on the status of their case. Most important-
ful in court as the presentation of a video child custody case: ly, they have a right to a skillful, zealous
depicting a parent doing something awful - Prepare a narrative summary of the prosecution of their case in court.
(i.e., Dad drinking in a bar while his kids facts surrounding your marriage and However, even if a parent has hired the
sit alone in the car). Private investigators parenting issues at the beginning of the best family law attorney in town they still
can obtain this type of dramatic evidence, case, including a detailed description of need to play an active role in preparing
but they are expensive. Many parents can- all complaints and concerns about your and prosecuting the custody case. No
not afford the cost of a P.I., and must look spouse; matter how skilled the attorney, he or she
for alternative options. - Provide a list of key witnesses (includ- will never know the facts of the case as well
Fortunately, it is relatively easy for par- ing address and phone number); as the client. Nor will the attorney know
ents to gather valuable evidence on their - Maintain copies of all emails and texts about important events that occur during
own. The advent of the smart phone and from your spouse, and provide relevant the pendency of the case unless the client
personal computer has made all of us into messages to your attorney at regular communicates that information to the
capable amateur investigators. The smart intervals. Clients should know that all texts attorney. Parents can dramatically increase
phone, especially, is an incredibly valuable and emails they send during a custody their chances of success, and decrease their
tool for gathering evidence. Having the case, to any person, may end up being used attorney fees, if they take the time to assist
ability to take photographs and make as evidence against them. They should also their attorney in preparing the case.
audio and video recordings at a moment’s assume that all Internet activity during the Finally, it is important to remember that
notice, with an easily concealable device, is pendency of their case will be revealed to child custody cases are usually won by the
an incredibly powerful tool for gathering the Judge, and proceed accordingly; parent who maintains their integrity, sup-
evidence. - Alert your attorney to any social media ports their spouse’s relationship with their
Clients often complain when their spouse postings by your spouse which may be of child, and places the child’s needs above
says something nasty to them during an value in the case. Take screenshots of the their own. The burden is on the client to
exchange, or sends a profanity-laced text postings, or print them out, to make sure avoid emotional decision-making and
message. However, they should be thanking they are preserved; follow the attorney’s advice. The selection
their lucky stars that their spouse is dumb - Maintain an accurate journal or diary of the right attorney can help make these
enough to reveal his true self during a of interactions with your spouse and efforts worthwhile.
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