This article is provided by Robert D. Weinberg, partner in the Pittsburgh, PA office of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, AAML Pennsylvania Fellow.
A common premise in litigation or settlement negotiations is to start high (or low) to land in the middle. To settle at $500, ask for $1,000.
This premise applies to most issues. Except for custody. And this reality fuels client discontent in family law matters.
Clients often want to file for primary custody out of the gate based on their understanding of how settlements generally work. These clients want to “shoot for the moon and land on a star” (the metaphor has always seemed backward to me).
Except in extreme circumstances, filing for primary custody is a bad idea. Why? Because custody cases are different. Custody cases involve the most important relationship parents and children have in their lives. These are not “zero sum” scenarios where a loss for you is a win for me: a win for me could be a loss for the children.
Moreover, courts prioritize supporting healthy, stable, and safe parent/child relationships.
This is not to say that every custody case should result in a 50/50 arrangement. It is to say that parents in custody cases must always be consistent with their sincere belief as to what is in the children’s best interests.
And this “sincere belief” often requires some counseling. Parents in high conflict cases have difficulty seeing why the other parent (hereinafter, “cretin”) should have any custody or why that cretin deserves any support regarding his or her relationship with the children.
Reframing the conversation with clients at the outset is critical. Lead with the following questions:
- Who are the most important people in your child’s life?
- Does your child love the cretin?
- Does the cretin love your child?
- Do you want your child to adjust to a divorce in the healthiest way possible?
- What are the 10 worst things the cretin has done to negatively impact your kid?
If a parent is still insistent on seeking primary custody, ask the following:
- Does the cretin have a good relationship with your kid?
- What concerns do you have about the cretin’s parenting?
- Are there any safety concerns?
- If the cretin is a parenting dunce, how can you make it better for your kid?
Custody litigants often miss the point that the best thing they can do for their children is to give the children the opportunity to have safe, healthy, happy relationships with both parents. In fact, failing to do so can be a significant weakness in a custody case.
No parent is ever created equal, and each has strengths and weaknesses. Likewise, children have developmental needs that change through their lives. Starting from the premise that children benefit from healthy attachments with both parents helps navigate each variable implicit in these considerations.
Why does this matter regarding tactics and strategy in custody cases?
Strategy
The overarching approach to every case should be determining a consistent approach to supporting safe and healthy parent child relationships. To be clear, this is not the same as a presumption of shared custody—not even close.
Where there is an imbalance of parenting strengths, the “better” parent’s strategy should be to figure out how to support the child’s time (even if limited) with the “weak” parent.
Conversely, the “weak” parent should determine an overarching plan to address the legitimate concerns of the other parent, and to develop parenting skills that include emotional and psychological insight and focuses on augmenting the parent’s relationship with the child.
On both sides of the aisle, the strategy is to move in a positive direction as far as possible toward building and nurturing healthy parent/child relationships, regardless of the specific schedule.
Tactics
These are basically the same on both sides of a case:
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Determine how to build a co-parenting relationship where none existed
- Implement a program such as Our Family Wizard
- Use a shared calendar
- Develop protocols for scheduling appointments and activities
- Be nice
- Share
- Involve a third-party professional, like a co-parent counselor
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If there are family relationship problems, consider family counseling or even reunification counseling with a trained professional
- The “better” parent must be involved and support this process
- Avoid inexperienced therapists (for parents and children) that exacerbate unhealthy dynamics
- Lawyers should focus the litigation process on implementing these items as opposed to point-scoring
These tactics buttress strategic goals in terms of promoting parent/child relationships. However, you are still a lawyer and it is important for clients
These tactics buttress strategic goals in terms of promoting parent/child relationships. However, you are still a lawyer and it is important for clients to know that, if these tactics fail, and your client has done everything to support the other parent but it is not working from a child’s perspective, you have also built your case.
Indeed, following the strategy and tactics outlined herein allows a parent to credibly testify in a custody hearing that he or she has done everything to support the other parent’s relationship with the child; it will also highlight any issues with the other parent that are interfering with the parent/child relationship; and it will inform the elements of a final custody order.
This approach requires patience and counseling of the client, especially because it runs counter to typical notions of settlement and litigation strategy. But it is consistent with expectations from the court; it supports parent/child relationships as much as possible; and it puts your client in the strongest position if the matter must be litigated.
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