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Pitfalls to Avoid in Child Custody Litigation



Child custody litigation is stressful, with high stakes for all parties, including children. No two cases are alike, and every case has its own nuances, facts, and circumstances. Consultation with counsel is prudent to ensure the best legal foot forward to make the strongest possible presentation.

Common Child Custody Mistakes

There are some common mistakes that divorcing spouses disputing custody should avoid. While no list can be comprehensive and exhaustive, nor apply to every situation, pitfalls such as these are important to avoid:

  • Acting without counsel Regardless of whether a party is the filer or responding party, a confidential consultation with counsel is advisable. Counsel can evaluate the case best from an early juncture. Consultation prior to divorce and separation is preferable. If a party is contemplating a custody challenge, consultation with counsel is timely.
  • Leaving marital residence without a parenting plan in place – Neither spouse should vacate the home unless the parties have in place an agreement (preferably in writing) that establishes a parenting plan. The parenting plan is necessary to preliminarily establish custody, visitation, schedules, and support. Avoid allegations of abandonment, desertion, and/or waiver.
  • Conduct that could be interpreted as domestic violence or alcohol/drug/substance abuse – Stay away from conduct that an estranged spouse can claim is domestic violence, emotional abuse, or physical abuse. Definitely avoid behavior or habits that could be classified as alcohol, illegal drug, or prescription drug abuse. These behaviors factor heavily in custody decisions when a court evaluates a parent's fitness and the home environment.
  • Making false claims of domestic violence or child abuse – Making specious claims without support and substantiation of child abuse, child neglect, or spousal abuse and abusing the temporary restraining order and its protections will negatively influence the court and discredit future attempts and claims. When much of the court's decision-making is subjective and involves one party's word, credibility, and integrity against the other's, a litigant's record and image must stay pristine, spotless, and above reproach.
  • Making threats about restricting access to child – Avoid making threats or claims that a child will be withheld from the other parent or that the child will disappear if a condition or event occurs or does not occur. Remember, visitation cannot be made contingent upon receipt of child support or alimony. Never threaten harm to the child or anyone else, including yourself.
  • Behaviors that reflect anger or control issues – Avoid providing the other side with any fuel for the other side of the custody case based on an inability to manage and control emotions, such as anger or temper. Verbal and/or physical acts that indicate an anger control issue will not factor favorably in seeking visitation or custody.