How to Win Custody

Brette Sember's picture

by Brette Sember

Lots of parents want to know how they can "win" custody. First of all, no one wins in a custody case, especially not the child. The best custody arrangement is one that takes the child's needs into consideration and creates a plan that allows the child to have a lot of time with both parents through a non-hectic, reasonable schedule.

That being said, there can sometimes be a lot of dissent over who should be the residential parent (the parent the child spends the most time with) and you will want to make sure your point of view is heard and understood by the court.

Legal Considerations

If you are in a position where you are trying to convince the court that your child should live with you, you should know that the court will make this decision based upon what is in the best interest of the child. What you or your ex wants doesn’t matter -- what will work best for your child is the primary consideration.

The court looks at all of the circumstances involved in the case. Mothers do not have an edge over fathers. Sexual orientation does not matter. The court will look at everything involved that impacts the child, including the past parenting history, the parents' schedules, living arrangements, the child's abilities and needs, child care arrangements, and anything else that affects the child.

What You Can Do

First and foremost it is important that you are honest throughout the case. Lies are usually caught. Your job is to show the court why you are more equipped to have your child live with you.

This means showcasing what's great about your situation and also making clear what the problems are with the other parent's situation. It does not mean you should do a hatchet job on the other parent. However, you do need to gather evidence that will let the court see what your concerns are about the other parent.

How to Gather Evidence

Custody cases turn on evidence. It is not enough to testify and tell the court what a bad parent your ex is. The court needs to see proof of this. One of the best ways to gather evidence is to keep a journal.

Describe situations with the other parent that concern you. Document how much time you each spend with your child. Write down information about times your child returns to you dirty, hungry, tired, injured or otherwise unhappy. Keep track of all the activities you do with your child yourself.

Document visitation disputes or times your child is returned to you late. Make a list of the daily things you do to keep your child healthy and happy. Gather together photos you can present to the court which depict your child with you.

If you are considering audio or video taping your spouse without his or her consent, talk with your attorney to find out what the laws are regarding this in your state. In some states it is permissible, but not in others. Answering machine or voice mail messages are acceptable because the person knows he is being taped.

Find Witnesses

Your word alone is not enough. You should find family, friends, neighbors, teachers, doctors and anyone else with personal knowledge about your family who can testify about what a great job you do and what the problems are with your ex.

Remember that witnesses can only testify about information they have learned firsthand. For example, your neighbor can testify about seeing your ex hit your son, but she cannot testify about it if you only told her about it and she did not see it happen.

Teachers and doctors likely will need to be subpoenaed, so talk to your attorney (if you don't have one, talk to the court clerk about how to get a subpoena issued). They can offer information about the child's special needs and abilities, as well as about which parent has been primarily involved at school or medical appointments.

Your Child's Opinion

Your child's opinion about custody matters, but is not decisive. In most cases, a Law Guardian or Guardian ad litem will be appointed to represent your child and find out what his point of view is. Your child may be interviewed by the judge in private as well.

Don't coach your child or tell him what to say. Do not make promises to him or offer him rewards if he tells the judge or guardian he wants to live with you. It is almost guaranteed he will share this deal with the judge or guardian.

Support Visitation

When you are in the midst of a big fight over where your child should live, it can be tempting to try to limit the other parent's visitation or time with your child as a way to strike back or insert some distance. This is a very bad idea. Interference with visitation is custodial interference and can be grounds for a complete reversal of custody. A good custodial parent is one who supports and encourages visitation. Children need both parents and a parent who sees and understands that will gain a lot of points with the court.

Keep Things in Perspective

Although you hope the judge will see things your way, a custody case should not be a fight to the death. Once it's over, you and your ex will have to continue to see and talk to each other so that you can parent together. Your child will always be your child no matter how the schedule is arranged. You need to be able to accept whatever the decision is and move forward to a place where you can parent together.

Brette McWhorter Sember is a retired family attorney and mediator and nationally known expert about divorce and parenting after divorce. She is the author of:

Learn more about Brette on her web site.

Copyright © Brette McWhorter Sember. Permission to republish granted to Pregnancy.org, LLC.