Zen and the Art of Testifying at Your Custody Trial

As an attorney who handles custody and visitation cases for a living, I can tell you that nothing will sink your case faster than poorly managed anger toward the other parent.

Christopher Mays
March 21, 2018

There is a semi-famous quote attributed to Buddha that basically says:

Holding on to anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned.

As an attorney who handles custody and visitation cases for a living, I can tell you that nothing will sink your case faster than poorly managed anger toward the other parent. Keep in mind that I am referencing “poorly managed” anger here. If you are divorcing, chances are you probably harbor some anger at the other parent. This is natural, and for the most part, courts are aware of this and even expect it somewhat. That being said, courts expect parents to set their anger aside when it comes to issues involving children.

Anger toward the other parent can impact custody and visitation in a number of ways. Sometimes parents will unreasonably deny the other parent contact with the child or attempt to place restrictions on contact when none are warranted. (For example, in some cases this may involve a parent insisting on “supervised” visitation when it is not warranted.) In other cases, a parent may denigrate or say negative things about the other parent to the child. This can negatively influence the child’s perception of the other parent and lead to a number of problems. (Sometimes this phenomenon can be referred to as Parental Alienation Syndrome.)

 

 

Ultimately, the essence of a custody case is that a judge is trying to make a decision about how each parent is capable of meeting a child’s needs. The problem with clients that cannot properly manage their anger is that they tend to make the case about their ex’s shortcomings, rather than about how he or she can meet the child’s needs. When this happens, the judge will end up with a very negative perception of your co-parenting ability. As you can imagine, given the priority that the law places the ability of each parent to “cooperate in and resolve disputes…affecting the child” – a judge’s negative perception in this regard can be bad news for your case. Further, if your focus is on demonstrating your spouse’s shortcomings, rather than the positive aspects of your parenting, a judge could question your ability to meet your child’s basic day-to-day needs.

To give you a sense of how this dynamic can play out in a case, I am going to give you a snippet of testimony provided in actual custody cases. (I’ve changed names and paraphrased the testimony to protect client confidentiality). In the testimony below, each parent is answering the question “Tell me about a typical day in which you are caring for your child.” Pretend that you are the judge. It is your job to be objective, fair, and determine what parent should have primary physical custody of the child. This is the first time you are hearing about this family and the issues in their case.

About The Author
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Christopher Mays received his BS from Virginia Tech and JD from the George Washington University Law School. Chris has received various awards for his work as an attorney, including recognition as a “Top Lawyer” by Northern Virginia Magazine. He has lectured at Continuing Legal Education ...

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