Almost daily somebody asks me about a disagreement in divorce about where the children should live or the need to make a change in child custody after a divorce. There’s a sequence I recommend you follow before spending money on lawyers. I added this note so I wouldn’t keep saying the same thing over and over.
I probably don’t need to say this to most people, because we do this naturally. Yet it continues to surprise me how people who are normally careful and deliberate with their spending will seemingly lose all control or sense of restraint when they start fighting with the other parent about where children should live. If you and your spouse are arguing over a retirement plan, for example, it’s usually easy to know what you’re fighting about so you can think strategically. Nobody who really thinks it through would spend more than an asset is worth fighting about that asset.
But how do you place a value on where your kid lives? That’s why I see people sometimes spend themselves into bankruptcy fighting over custody. There’s no price tag.
It’s also not unusual to scratch below the surface of a dispute between parents over custody and find out that it’s really about money. This comes up in two ways. First, and most common, somebody may be talking about custody because they don’t want to have to paychild support or because they want to receive child support. Child support is almost never enough to pay the cost of raising a child, particularly as the child ages, but that doesn’t stop us from wanting to get control of the money. And the way we know to control the child support money is to get custody of the child.
Second, somebody may be talking about custody because they know it’s great leverage for some other issue that has nothing to do with the children. That is, Frank may know the children should live with Laneeka, their Mom. He has no desire for them to live with him and would in fact be distressed if he thought he would have to take care of them. What Frank cares deeply about is holding on to the family business and not having to share any of its value with Laneeka. So Frank starts talking about how the children need to live with him, and he tells Laneeka he’s ready to go to the mat with her over custody. This causes Laneeka to panic and give up her rightful claim to the value she and Frank have built in the business during their marriage just so he’ll sign the papers giving her custody of the children.
But let’s assume that’s not what you and your spouse (or ex-spouse) are doing. This really is a fundamental disagreement about whether your children should live with Mom or with Dad.
Before you spend money on a lawyer dealing with a custody fight, I strongly recommend that you lay the groundwork for dealing with the legal issues. This will take some time, and you may find it painful, because it will force you to challenge your own parenting. But as I will describe below, I think it will be the best way for you to get the most bang for your lawyer buck.
Every state I know of has child custody factors, the list of issues the court is instructed to consider when deciding where a child should live. Set either by statute or by court ruling, these factors form a checklist that good judges follow as they untangle the opposing narratives of parents arguing about custody. If you’re in Alabama where I am, you can find the factors here. If you’re in another state, just enter the phrase “[your state or province] child custody factors” in your search engine.
When judges talk to lawyers about how to do a better job litigating child custody, they often talk about the child custody factors. Specifically, they often point out the practice of many lawyers to try to focus the entire case on one or two incidents or issues, when they as judges are charged with reviewing all the factors. So you can get a leg up from the beginning. You may be focused completely on your concern that your child’s stepmother slapped your child, and well you should be. But you’re not going to focus only on that. You’re going to make the judge’s job and your lawyer’s job easy by paying attention to every one of the factors.
Now begins the hard work. Make a separate page for each factor. I call these individual pages “strike sheets.” You can write it out by hand or on the computer. Either way, you write the factor on the top of the strike sheet as its title, and then you write down what you would say and what the other parent would say about that factor. Try to anticipate every argument that either of you might make and get it down on paper. So now you have either a bullet list or a narrative description of the two opposing viewpoints.
Next, you do some evidence planning. Knowing that your spouse will gather all the evidence he or she can, what photos, what witnesses, what records, what physical objects do you expect your spouse to use in making his or her argument about this factor? Given that you want the judge to accept your viewpoint instead, what would you present? It’s important to be realistic here. You can’t plan to present 50 witnesses, because it would cost too much and because the judge won’t let you take up that much time. And the last thing you want is for the judge to stop listening before you stop talking. It’s fine to write down on your strike sheet the 12 witnesses who could provide testimony, but if you can, boil it down to the one or two who are accessible to the court and who would be most persuasive with a judge, and emphasize the one or two points they need to make so they can get on and off the stand in as little time as possible.
I have good news and bad news about strike sheets. The bad news is that this process of preparing a strike sheet for each child custody factor is (or can be) incredibly time-consuming, and it’s not always pleasant. You may even find it discouraging. The good news is that it’s free, or virtually free. You can do all this without spending a dime on lawyers. The other good news about strike sheets is that if you are conscientious in preparing your strike sheets, (a) they will form a great backbone for your lawyer to use in preparing your case, helping the lawyer to do a better job and spend less money; and (b) they will impress your lawyer no end. Lawyers aren’t at all accustomed to having clients who carefully think through both sides of every issue before asking for help. Bad lawyers will be intimidated by your careful preparation and seek to avoid you; good lawyers will love it and be eager to work with you.
There’s yet another advantage of using strike sheets that may be hard for you to hear: You may be wrong. After you go through the process of analyzing the factors and planning out what the judge would hear about each one, it’s possible (not likely, but possible) that you will decide the your children really are better off living with the other parent. And although that won’t be easy to accept, how much better it would be to decide it before you get your children and the other parent all stirred up and have to incur all those lawyer fees! So with that in mind, we’re ready to move to the next step.
Armed with your thoroughly filled-out strike sheets, you’re ready now to talk to two or three top-flight divorce lawyers and get their appraisal of your chances. Expect to pay for their time; this may be the smartest money you can spend. Listen carefully to the comments they make as they look through your strike sheets and see the arguments to expect for and against your position.
This is not the time to look for the lawyer who tells you what you want to hear. You’re looking for the lawyer who seems attentive, well-informed, realistic, and willing to contemplate the chance that you might lose. When you ask a question, does the lawyer really listen to the question and try to answer it, or just interrupt you to tell you how experienced he or she is and how easy a case this would be to win? It may be a good idea before you go to read the Open Letter from a Divorce Lawyer.
Don’t be afraid to ask about money. Ask for, and expect, a realistic idea from the lawyer about how much this case should cost each parent and what would cause the cost to go up or down. Decline to sign any engagement letter in the first meeting. You want to talk to both (or all three) of your tentative choices, and then you want to get away from all of them to make your decision about which one to trust with this all-important struggle.
Once an engagement is under way, lawyers generally aren’t very good at keeping the client informed. Keep a running list of questions that you want to ask the lawyer about your case. Don’t call the lawyer’s office every time you have a question; that will run your bill up. Instead, let the questions build up until you have several of them, and then ask to meet with the lawyer in his or her office to discuss them. Yes, this will cost more money, but again, it’s smart money, because you’re staying fully informed (and keeping the lawyer fully informed) about your case.
Work from your list of questions and make sure you fully understand the answers you get to each one. Keep copious notes, and don’t be afraid to ask the lawyer to stop talking long enough for you to write down something that’s important. Finish by giving the lawyer a chance to revise (or re-affirm) the appraisal the lawyer made about your case in the initial meeting. It’s not at all unusual for your advocate to become less positive about your position as the case develops as you and the lawyer hear more from the opposing point of view; just make sure that you’re asking about it regularly so there’s no chance that your lawyer has lost confidence without your knowing about it.
When the meeting is over, go straight to your computer or a notebook and write down a summary of the meeting. Then send that summary to the lawyer, along with a request that he or she let you know if you’ve gotten anything garbled. The idea here is that you want to know what your lawyer knows about the case and to make sure there’s not a disconnect between how your lawyer sees it and how you see it.
Throughout this painful struggle, you’re going to be trying to bring out all the terrible things the other parent has done, and the other parent is doing the same thing about you. It’s a brutal process. Remember that, although this is about your children, it’s not your children’s fight. This is between Mom and Dad.
It’s especially hard to do while in the middle of a struggle over custody, and even harder to do when the other parent is telling the children all the terrible things you’ve done, but you need to avoid criticizing the other parent to the children. It just won’t get you anywhere; trust me on this. If the other parent is truly a bum or callous or abusive or any of the other things you believe about him or her, your children will figure it out eventually. No child needs to hear criticism about his or her parent, especially from the other parent.