Seven Steps to Winning Your Child Custody Battle

April 4, 2019

By James L. Lane, OSBA Certified Specialist in Family Law

High-conflict child custody cases can be brutally difficult and severely stressful. Parents fighting for custody of their kids are thrown into a daunting legal vortex while facing the nightmare of losing their children. This emotional process can bring out the worst in some parents.

Unfortunately, many family law attorneys focus on the procedural and legal aspects of the case and fail to help their clients navigate the changing parenting dynamics created by a custody fight. The truth is that successful child custody litigation is equal parts good lawyering and good parenting. No matter how great your lawyer is, he or she can’t hide bad parenting from the court.

Back in 2016, I wrote an article entitled, “Seven Mistakes to Avoid in a Child Custody Battle,” which touched on this subject matter. I encourage you to read that article if you haven’t done so already. In the ensuing three years’ time, it has become increasingly evident that clients who focus on great parenting, rather than “winning” their case, typically have the best outcomes in family law litigation.

After twenty years of practice and hundreds of family law cases, I have gained some insight into the issues judges focus on when making a custody decision. Having three children of my own has also taught me a few lessons. There are no perfect parents. Every single parent screws up from time-to-time. I surely have. But the parents who can consistently identify their children’s needs, prioritize those needs above their own and take appropriate action to meet the children’s needs are the parents who are most likely to win their child custody battle. So, how do you do that?

I briefly touched on this subject matter in my 2016 article. However, I want to provide some in-depth advice on how to successfully navigate the parent-child relationship while involved in a custody fight. This is a difficult process for every parent, and every parent-child relationship is unique to some degree. However, there are some steps every parent can take to increase your chances of maintaining a healthy relationship with your child during a custody fight.

STEP #1: Focus on Quality, Not Quantity

The most frequent subject matter in custody disputes is the amount of parenting time each parent has. While it is very important to have frequent and meaningful amounts of parenting time with your child, the exact quantity is not nearly as important as the quality of the parenting time. I see many parents spending inordinate amounts of time and money fighting over a couple of days per month with their children, only to find out later that they are not taking full advantage of the time they already have with their kids.

Spending time with your kids is not especially beneficial if the parent/child interactions are not nurturing, fun, educational or somehow productive. Time spent with a child in the same home does not automatically foster a healthy relationship between parent and child. It takes work.

Rather than fighting for more time with your child, it may be better to focus on making the most of the time you currently have. You will be surprised by how often demonstrating great parenting leads to opportunities for more parenting time.

A few years ago, I saw a stand-up comedian doing a routine about divorce. One of his funniest jokes was about how he was a much better parent after divorce because he only had to see his kids for half of each week. “I’m an attentive, focused and responsible father because I get to say goodbye to these kids every week,” he said. “It’s every parent’s dream. Who can’t be a good father for half the week?” There is a lot of truth in that joke.

Parenting children 24/7, 365 days a week is an extraordinarily difficult job under the best of circumstances. Being a great parent while living with a hostile spouse is nearly impossible. One of the few benefits of divorce and physical separation from your spouse is the opportunity to effectively divide and conquer the parenting game. You no longer have to be an attentive, focused and responsible parent every single day. You will now have a chance to catch your breath, regroup and make sure you are at your best for the days when the children are with you. That is an opportunity most married parents rarely get.

STEP #2: Don’t Make Your Kids the Sole Focus of Your Life

When you stop and think about what a healthy family dynamic looks like the children are not the sole focus of the family. Every waking moment should not revolve around the wants and needs of your child. Kids need to learn that the world does not revolve around them, and that they are not precious, fragile flowers. Both toddlers and teenagers can be incredibly self-absorbed. It is our job as parents to teach them to get beyond that self-absorption to make a contribution to society and think about the welfare of others. This is one of the keys to a happy life. Think about it: Have you ever met a truly happy narcissist?

One of the primary goals of parenting is to help your children develop into productive, responsible and happy adults. That’s the core mission. Hopefully, you can provide them with some great experiences and fond memories along the way but ultimately, your job is to help your child develop into a well-adjusted adult. To do so, you must help your child acquire habits, skills and values that will enable them, to avoid self-centered behaviors that burden others, to form and sustain close relationships with peers and to regulate their behaviors, desires and impulses with respect to social norms.

Nearly every mental health professional in the world will tell you that a family dynamic hyper-focused on the wants and needs of the child is problematic. Rather, try to perpetuate a family dynamic that takes into consideration the needs and desires of the children as part of a wider societal structure that does not revolve around a single person. In paraphrased, kid terms, “You get what you get and you don’t throw a fit.”

This issue comes up frequently in divorce – understandably – because parents are facing the prospect of losing primary possession of their kids. Consequently, many parents cope with this scary possibility by focusing all of their attention on the children. They neglect work, friends and extended family members, obligations in the community or church, and even themselves to focus solely on the kids. That attention can be suffocating for children. While it is great to be an attentive, loving parent, you can very easily go overboard. I see it almost daily with my clients.

Balance is the key. Maintain friendships. Keep going to work and putting in the effort to be successful in your chosen profession. Spend time with your kids when you have the time to do so, and make your children a part of your life in a natural way that doesn’t make them self-absorbed and entitled. In short, try to maintain normal stability between being a great parent and being a productive, healthy and happy adult.

STEP #3: Work on Yourself; Don’t Try to Fix Your Spouse

Going through a divorce with minor children is difficult for nearly every parent who has experienced the process. It is easy to get overwhelmed and become depressed, bitter and angry. No one enters into marriage and has kids with plans to divorce and fight over custody. When it happens, it is a bitter pill to swallow. An accurate description of this trauma was written by Rachel Cusk in the New York Times Magazine in March 2015. “The central shock of divorce,” she said, “lies in its bifurcation of the agreed upon version of life. There are now two versions, mutually hostile, each of whose narrative aim is to discredit the other.”

The emotional toll a high-conflict divorce can take on someone should not be underestimated. It is extremely important to take care of yourself and your mental health during a divorce. Often, that means seeing a therapist or counselor. However, it could be as simple as taking time to exercise, meditate or spend time with friends.

Kids are incredibly perceptive. They pick up every nuance of your mood and every inflection of your voice. If you are depressed and angry all the time they will know it, regardless of how well you try to hide it. They will absorb that negative energy and internalize it, or they will tune you out and seek to avoid interactions with you. Either outcome is not what you want for your kids.

If you are an involved parent, you know how exhausting and all-consuming the task can be. As the father of three children under the age of six, I know all too well how difficult parenting can be on some days. However, you will be amazed at how much easier the task of parenting is when you are in a good place emotionally. We have all heard the speech about what to do when the oxygen masks fall from the ceiling of the airplane: you can’t help anyone else until you put your mask on first. The same axiom applies to parenting. If you want to consistently be the best parent you can be, first take care of yourself.

It is equally important to stop your efforts to “fix” your spouse. You tried that during the marriage and it didn’t work. If you haven’t figured it out already, the person you married is a flawed individual with many traits you do not admire. If he or she wasn’t going to listen to your advice on how to be a better human being during your marriage, they are certainly not going to start listening now that you are getting divorced. Act accordingly.

Don’t expect the court, or your attorney, to magically change your spouse into a delightful person and perfect parent. It’s fine to point out his or her flaws, and necessary to identify their failings as a parent to the court. However, you should not let yourself be consumed with anger and frustration because your soon-to-be ex-spouse is consistently ten minutes late to pick up the kids, or frequently forgets to return their dirty clothes after their weekend. Acknowledge and report the problems to your lawyer and focus on being the best parent you can be. Don’t let your spouse continue to make you miserable after you have decided to divorce. They’re not worth it.

STEP #4: Stop the Negativity

Former British Prime Minister William Gladstone once said, “Be happy with what you have and are, be generous with both, and you won’t have to hunt for happiness.” Easier said than done, I know, but great advice nonetheless.

I sometimes observe in clients a pervasive focus on the negative aspects of the changing family dynamic that is divorce. I understand why. It can be a harrowing experience. However, once you decide to be a parent, you have a duty to set an example for your children and demonstrate for them, as best you can, a model for a positive outlook on life as well as your particular family situation. You have combined your DNA with your spouse to create a child who is now dependent upon you to protect them and provide them guidance on how to become a functioning adult. It is your responsibility to put your baggage aside and create an environment in which a child can thrive. This means swallowing your pride and moving past the built-up resentment toward your spouse.

Try to avoid negativity when interacting with your children. It can be something as simple as smiling for your kids when you first see them every morning or before they go to bed, even when you’re having a terrible day. It can mean refraining from making negative comments about your spouse in front of the kids. Avoiding negativity should include a concerted effort to focus on the positive aspects of your current family situation. Your children are sure to be stressed and scared once they know their parents are getting divorced. They are looking to you for assurance that everything will be OK. If, instead, they hear from you a constant refrain of negative opinions about your current circumstances, they are going to feel lost and alone.

One of the traps many parents fall into is commiserating with their child about what a bad parent their spouse is. Kids are smart. Once they know Mom and Dad are getting divorced, they are going to play you against one another to get away with whatever they can. Your daughter may come home and say something like, “You won’t believe what Dad did to me. He made me stay in on Saturday night and watch a movie with him rather than spend the night at Stacy’s house. Then he yelled at me because I left the milk out and it spoiled.” The opportunity will be there for you to wallow in the negative and be the confidante who mimics your daughter’s outrage. Don’t take the bait. Remember, if you don’t maintain a united front, even in a separated household, your children will find a way to walk all over you.

Maintaining a positive outlook starts with an acceptance of your current circumstances as part of life’s journey. This isn’t where you expected to be, but it doesn’t mean you can’t make the most of it and come out the other end a better and stronger person. No matter how you have been wronged by your spouse, if you choose to wallow in the negative, you will only harm yourself and your relationship with your children. Holding onto that anger and frustration may feel good at times but it only serves to keep you from evolving and being the best parent you can be.

Everyone has bad days, and no one in their right mind is happy all the time. However, it is important to avoid incessant negativity when faced with the challenging environment of a child custody battle. If you can remind yourself to focus on the positive aspects of your life, it will go a long way in fostering a nurturing and loving relationship with your children.

STEP #5: Talk to Your Kids

We all tend to interact with our children a lot without having meaningful discussions with them. There is a reason for this. Kids do not want to be lectured and/or interrogated about their feelings and circumstances on a daily basis. If you were constantly asking your kids about their innermost feelings, it would quickly drive a wedge into your parent/child relationship. There is something to be said for keeping things light and fun.

However, it is important to check in with your kids from time-to-time to see how they are doing. Ask them: Are you safe? Are you happy? Are you fulfilled? The answers you get to these three simple questions may surprise you, especially in the middle of a child custody battle.

Talk to the kids about how they are dealing with the new family dynamics brought on by the divorce. They may not always open up to you but when they do, be sure you are not judgmental about what you hear, even if you are offended or hurt. Rather, be empathetic, be compassionate, and offer them constructive ways to deal with their feelings.

My amazing wife often asks our children at dinner what the favorite part of their day was. The answers we hear sometimes surprise us. Frequently, the children respond by describing an interaction with one of us that wasn’t particularly meaningful from our point of view. It just goes to show that it is hard to see things from a child’s perspective. It is a good idea to stop and ask some pointed questions every now and then to gain insight into your child’s state-of-mind.

It is important to note that children, especially teenagers, are often reluctant to open up about their feelings to their parents. If you believe your child is struggling with his or her mental health and can’t open up to you, it might be appropriate to have the child see a qualified therapist. Many children often devolve into self-destructive behaviors during a divorce. It is vitally important to get out in front of any mental health problems before they become severe.

STEP #6: Be a Parent, Not a Friend, to Your Child

Nothing makes me happier than to hear my three-year-old say, “You’re my best friend, Daddy.” It simultaneously melts and breaks my heart because it’s all I could hope for and I know it won’t last. Once he gets in school, he’ll find a new best friend, as he should, but I will always be his Dad.

It is not your role to be your child’s friend while they are growing up. Kids need strong parents to teach them right from wrong, to guide and protect them, and to set an example for appropriate behavior. They don’t need Mom or Dad to be cool and let them get away with inappropriate behavior. The short-term satisfaction you will receive from being perceived as the cool parent who doesn’t enforce the rules is, in fact, eating away at the respect your child innately has for you as a parent. Once you lose that respect, it is very hard to get it back.

Further, being inconsistent in enforcing rules and discipline will invariably lead to confused and angry children. It is very important to establish rules in your household that the children must abide by. Be sure your children understand these rules and the consequences that will result if they break those rules. Once the rule has been broken, it is up to you as the parent to enforce the rule and apply the appropriate consequences in a consistent manner. This is a vital aspect of good parenting during a child custody battle when you will be tempted to be the “cool” parent.

If you abdicate your role as a parent and choose to be a friend to your child, you will quickly realize your ability to control their behavior is severely diminished. While there is nothing wrong with having fun with your kids, it is imperative that you maintain your overall authority as a parent to the child. There is a fine line between being a responsible, fun parent whom the kids enjoy spending time with and a “cool” parent whom the children walk all over. Strive for the former, not the latter.

STEP #7: Block out the Noise

Don’t let friends and family influence important decisions related to your divorce or your relationship with your child. When it comes to divorce, everyone has an opinion. Approximately half of the adult population in this country has gone through a divorce, so there is no shortage of opinions on the subject. It reminds me of the doctor who recently hung a sign in his office that read, “Don’t let my medical degree interfere with the results of your google search.”

Once you let people in your life know that you are divorcing, you will be subjected to a barrage of well-intentioned advice on what you should do to win your case. Further, you will hear countless tales of divorces long past. If you are somehow lacking in friends or family offering advice, you can find plenty of opinions and inaccurate information on the Internet. It is easy to hop online and get sucked down a rabbit hole of theories on how to win custody cases in chat rooms and on bulletin boards. It is imperative that you block out this noise and follow the advice of your attorney.

Every divorce is different and has multiple elements which will affect the outcome of your case: different facts, different court, different lawyers, different parents and different children. If you have carefully chosen an experienced attorney whom you trust, it is vitally important that you follow his or her advice. The attorney who is handling your case is the only one who knows all the facts and has the knowledge and experience to offer you advice worth taking.

There is nothing wrong with discussing your case with friends and family. There is nothing wrong with politely listening to their advice and even discussing that advice with your lawyer. There is nothing wrong with doing your own research on the Internet and bringing that information to your lawyer. Just remember that there is a difference between an opinion and an educated opinion. In other words, don’t let my law degree interfere with the results of your google search.

I hope this article has provided you with some useful information on how to navigate the difficult task of parenting during a divorce. Remember, none of us are perfect. You will have good days and bad days. Just keep doing the best you can to put your child’s needs above your own and stay positive.

If you have any questions, feel free to contact us. You can learn more about my practice, Domestic Relations & Family Law, on our website.