What Can Be Used Against You in a Custody Battle?

A custody battle is exactly what it sounds like. It is a high-conflict court case where the parties are litigating who should have custody of the children. It can lead to extreme stress, anger, hostility, mistrust in one another, and frequently, mistrust in the judicial system tasked with making and enforcing important decisions for your family.

This article, written by a New York City divorce attorney, will discuss what you must know about custody battles and in particular, what can be used against you in a custody battle.

Who Benefits from a Custody Battle?

The only people who benefit from a protracted and high-conflict custody battle are the attorneys who are profiting off the case and the service providers assigned to the matter. 

For example, in some instances, a judge may have safety concerns with a parent. This usually happens when a party suffers from significant mental health issues, substance abuse proclivities, or is potentially physically or emotionally harming the children. In these instances, the court may order supervised visitation services, therapists, and even a forensic examiner to write a report containing detailed recommendations for custody. Those providers charge a hefty price for their services. The judges usually order certain service providers, therapists, and forensics who they have worked on cases with previously, also work on your case. This “short list” should be carefully scrutinized and vetted by your attorney. Most service providers have excellent reputations, but some do not — and like every individual — a service provider or forensic examiner may carry their own biases or unusual perspectives when analyzing your family.

Who Loses During a Custody Battle?

Unfortunately, the parties and the children. It can not only destroy your peace of mind, and your perception of the world around you, but custody battles have also been known to financially bankrupt some people.

The more you “fight” over issues, the more money you will spend. Stick to fighting over the most important issues and let the petty garbage, go.

What Issues Do People Usually Fight About?

• The ability to appropriately care for the safety, needs, and best interests of the children;
• Allegations of substance misuse and abuse (alcohol or unprescribed drugs & sometimes even prescribed drugs and their side effects);
• Allegations of mental health issues and physical limitations;
• Allegations of abuse (domestic violence and/or emotional and physical abuse of children);
• Allegations of infidelity;
• Allegations of parental alienation;
• The interference of other family members and friends in the parties’ demise;
• Finances – The appropriate division for assets and debts;
• Who should care for the family’s pets; and
• Anything and everything else that the litigants are angry about (and it can be as petty as who took a nominal value item.)

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Read “Best Advice on Custody for Divorcing Moms”.

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What Can Be Used Against You in a Custody Fight?

The short answer is nothing is usually off limits unless the judge decides that it is irrelevant.

Family law is one area of law where many contested issues and a bevy of evidence can be probative. This means that potentially everything matters.

That includes a litigant’s criminal history, domestic violence allegations, substance abuse allegations, former employment issues, mental health status, social media usage, porn usage, prior infidelity, and any other character evidence that demonstrates that someone is not able to appropriately care for and parent their children for whatever reasons.

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Stay on top of all things divorce. Consult our “55 Must Do’s on Your Modern Divorce Checklist.”

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The Court is supposed to carefully deliberate over what is in the children’s best interests when making appropriate custody decisions. If the parties are unable to agree on major issues, professionals may be appointed to help facilitate the process. While most cases eventually settle, a few cases will go to trial. A trial permits both parties to enter evidence into the record and parties will have the opportunity to testify. The parties will also be cross-examined by opposing counsel. The judge will make credibility determinations based on the totality of the testimony and evidence presented at trial. The judge will also keep in mind the outcome of prior motions in your case and your behavior during prior court appearances. All of these items create an important image of who you are and how you conduct yourself to a judge.

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Consider reading “What to Wear to Court for Divorce Proceedings.”

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How Seemingly Innocuous Items Can Be Used Against a Woman in a Custody Battle

In heterosexual marriages, some men may gaslight and intimidate women litigants by threatening to take the most innocuous incidents and blow them out of proportion to paint an unfair and inaccurate picture of a woman being an  “unfit mother.” The soon-to-be ex-husband may be bitter about suspicions of infidelity or a lack of a woman’s interest in having sexual relations with him. Sometimes husbands may have an outdated sense of entitlement/ownership over their children. Children are people. They are not possessions to “win” in a fight. 

Be extra careful when dealing with a manipulative narcissist who is hell-bent on making your life miserable.

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For more support, read “41 Things to Remember When Coparenting with a Narcissist”.

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Tips for Women in a Custody Battle

1. Do not represent yourself. Now is the time to “lawyer up” and fast.

   You need experienced counsel who you have a comfortable rapport with to protect your interests and your children’s future. Nothing is more important than the custody of your children.
   

2. Continue to prioritize your children’s health, happiness, and best interests above your desires.

   For example, you recently fell in love with a new partner. You may want to immediately move in with them. Take a breath, step back, and wait a while. Is changing your children’s daily lives in their best interests or are you prioritizing your own personal desires? Always ask yourself how someone who does not know me may judge my behavior. That is likely how a judge would perceive your actions. That is likely how a judge would perceive your actions.

3. You do not have to respond to every nasty text, phone call, or email that you receive from your soon-to-be ex-spouse.

   They crave a reaction from you. As soon as you fail to deliver that reaction, they are more likely to get frustrated and bored.

4. Be careful what you put in writing.

   Never put anything in an email or text message that you would not want a judge or an attorney to later read out loud in Court.

5. Choose your battles carefully.

   Not every issue is worth fighting over in court. Every motion filed is time-consuming and expensive so minimize unnecessary stress and expenses by only fighting over matters that matter. Let the petty stuff go and focus on your overall strategy.

6. Be on your best behavior.

   Nobody can be perfect all the time, but consider how a judge may perceive your actions on both your best and worst days.

7. Monitor your social media presence or consider deleting your Facebook, Instagram, and other social media accounts altogether.

   Anything posted on social media including wall postings, blogs, video content, links to news articles, and other items can and usually are used as evidence at a potential trial. Be especially mindful of photographs containing partying, alcohol, and significant others.

8. Your Relationships with Collaterals Matter.

   Being an involved parent means knowing your children’s routines, interests, fears, strengths, and weaknesses. It also means establishing respectful relationships with their teachers, coaches, activity provider, friends, and extended family members. All individuals who have first-hand knowledge of how you behave when the children are under your care are potential witnesses. They could testify on your behalf or against you at a trial. They may furnish affidavits. They may even be subpoenaed for a deposition. Be polite, and friendly, and try to maintain a positive relationship with these individuals because they could be instrumental in your case at a later date.

9. Remember that better days are ahead for you and your family.

   It may be hell now, but one day your court case will be over and your family will be settled.

NOTES

Meredith L. Singer is an experienced NYC family law attorney. She is a zealous advocate for her clients and strives to keep legal representation affordable and accessible. For a meaningful consultation if you reside in the New York or Brooklyn area, or for additional information, visit her website at: www.meredithsingerlaw.com.

 

Since 2012, smart women around the world have chosen SAS for Women to partner with them through the emotional, financial, and often-times complicated experience of divorce and reinvention. 

Learn about Frida’s Group here, our powerful, 6-month coaching, support, and community program for women in the MIDDLE of the divorce or separation process. Schedule your quick chat to ask your questions and ​learn how Frida can support you in your process and recovery from it.

 

*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”