Almost everyone knows someone who has been, is or will be going through a “terrible” custody battle. The best of parents—acting under the stress of a separation or divorce—experiences a range of emotions from loss to rage.
In some cases, the perceptions of the parents are magnified by underlying psychological issues, substance abuse or both and lead to the truly high-conflict custody case. While there is no legal definition for a high conflict custody case, they all share some of the same hallmark behaviors and incidents while (and after the case) pending, including:
- claims of or actual domestic violence and/or criminal cases therefrom;
- regular police calls to parenting-time drop-offs or pickups, as well as calls for wellness checks to the house of the parent who has parenting time;
- one or both parents seeking and/or securing protective orders against the other;
- tip calls to the Indiana Department of Child Services about physical or mental harm being inflicted on the children by one parent or the other.
Time, perspective, and professional therapy are the ultimate ways most of these cases come to a resolution. In the meantime, the following is a list of seven key items that are tried and true considerations to mitigate and limit the emotional and financial implications of this high-conflict litigation as well as protect the children—which most parents caught in high-conflict custody case agree is their objective:
1. Make an informed choice about counsel and listen to what he or she says:
As an initial matter, attorneys fit different roles and types of cases, so make informed and effective attorney selection and then stick with that counsel in all but extreme circumstances. High conflict child custody cases are wrought with emotion. This is a part of the healing and recovery process, although it seems otherwise at the time. This clouds good-decision making, creating more animosity, and unnecessarily increasing legal fees and delaying the process.
For instance, if a parent is late to a drop-off, a good way to address it may be to keep a journal, not insist on an emergency conference with your counsel and contempt filing. The attorney may relay to you that you are over-reacting or to save it for future use. Ultimately, this immediate action may not get you anywhere with your custody objectives; and in fact, work the opposite way and paint you as the unreasonable, inflexible litigant. Seasoned divorce attorneys know that and may well challenge you, looking at the big picture. This type of guidance is what you are paying them for. Remember, the big picture often is lost in child custody litigation, harming your case and the children.
2. Be proactive, not reactive:
With technology, it is very easy to take an actual or perceived issue in a high conflict case, such as the child returned with a new bruise, and react instantly assuming the worst. An angry voicemail to the other parent, texts, and emails to counsel, the police or filing a DCS report may not be an appropriate response.
These emotional responses, which are normal protective parenting responses in most contexts, can create an “evidence” trail that is damaging or fatal in a child custody evaluation or trial. Once they are sent, they exist in the cyber world and you should assume they will be used as evidence at trial against you. Every divorce attorney has been shocked by a text, email or social media post from his or her client that significantly damages the legal strategy.
The rule of thumb is to not say or write anything you would not want the general public to know or wind up on the front page of the paper. If you cannot answer this question before you react, do not. Cool down, reflect, perhaps contact counsel, but make a logical decision, not an emotional one or it will cause the case to drag on, become unnecessarily expensive, and hurt your children. Ultimately, it will hurt your case.
3. Focus on your children and your future:
Living in the day-to-day while a high-conflict custody case pends is a significant emotional and financial burden. Such stress impacts good decision-making. In fact, it creates a chemical imbalance in many people. A natural way to combat this stress is to focus on how it impacts your children which will align your behavior and responses to what is in their best interests, particularly if you make and envision a path for life after the case is decided.
In addition, if you cannot “shake” the stresses of the situation, counseling or a consult with your medical doctor may be necessary. Many parents lose sight of the fact if they cannot be balanced for themselves, they certainly will not be able to be the best parent they can be in court and after for their children. This case will end, but your actions and decision during the process will directly impact how and if you meet your legal objectives; a legal objective might be joint physical custody. “Evidence” of an unreasonable parent does not bode well for this objective.
4. Do not change counsel for perceived delays or minor disagreements:
Today, we can have almost any good or service from any place in the world in a few minutes, hours or days. We can get information instantly. Unfortunately, this translates into a de facto expectation this will occur in your custody case. However, this is not reality, as the years it took to get to this point in your life - needs focus and time to legally “untangle”. In high conflict custody cases, it is human nature to blame your counsel or the court at times for your situation. It is a normal coping mechanism.
However, most divorce lawyers and judges see far too many litigants who are unaware of this dynamic. The litigant changes counsel wants to “sue the judge”, which invariably leads to delay and a learning gap with new counsel. This increases the legal fees, which leads to the frustration in the time it is taking for the case to get to mediation or trial.
When you reach this point, you must seriously reflect on your desire to change and/or fight the system and make sure it is a decision based on true differences of opinion or legal views, not pure frustration in the situation. If you do not, you are creating and enabling the situation to continue that is creating the duress you face. Losing faith is a normal part of any relationship, including your attorney in high-conflict custody cases. Are you sure it is your counsel’s fault? Do not fall on your own sword.
5. Get feedback from a neutral party:
Parents, family, and friends are slanted toward you in most cases. In addition, the filter most non-professionals have about divorce comes from a distilled version of urban myth. This means when you engage these people to discuss your case, you are getting feedback from someone who does not see your weakness (yes we all have them) or is basing a response from information that is not true.
These myths are the same form: “Everyone knows how bad he or she was as a mother and no court is going to give him or her custody.” This is simply not the case. At a minimum, most parents get Indiana Parenting Time Guidelines time. Supervised visitation or suspended visitation does not typically occur and is inconsistent with Indiana law.
However, hearing these possibilities in feedback from family and friends creates unreasonable expectations and obscures what you could make of your case if you were thinking clearly. The more insidious version of urban myth is to hear about “the judge” always does this, or this lawyer can accomplish this legal objective for you because it occurred in the past in a different case.
If you truly need to talk through your case, it should be with a therapist or other neutral party who can give you accurate feedback on your views and positions.
6. Do not be your own lawyer
Every experienced divorce attorney has had even the most well-intentioned client bring in a case or statute that “can win the case”. The internet, in particular, circulates partial information that may not even apply to a case in Indiana. The means to get your case to your custody objective is something you should consult with your attorney about, not by telling him or her how to do it. Most attorneys are good advocates, but putting hope against hope with such a case or statute will cause doubt when the attorney relays the case or cite does not apply to your case.
What is important in high-conflict custody cases is telling your story and that of your children, setting forth what in their best interests on divorce or ruling by the court in paternity or post-trial litigation. There is no magic case or statute that can win your case on a technical point.
It is best to work toward your legal objectives by focusing on being the best parent you can be each day, not being overwhelmed by the litigation. Listen to your attorney and other neutral sources that will empower you to tell your story, not chasing a magic solution to the acrimony between two parents who both love their children.
7. Avoid self-diagnosing the other parent:
Labels of all types help us make sense of and manage our world; life is messy. Divorce upsets everyone’s need for balance and consistency. For this reason, and with easy access to sophisticated legal tools online, some lawyers may spend too much time on collateral issues with their clients in what they see as the be all and end all to “winning” their custody case.
Statements like the following are common: “The father (or mother) has engaged in parental alienation syndrome”. “The father suffers from narcissism”. “The mother has a personality disorder”.
Even if these statements are true, the psychological condition of a parent is only one of the considerations a judge must weigh in making a custody decision. It is important to make counsel aware of this information, particularly if there has been a prior formal diagnosis, but this will not “win” the custody case. This is not the end of the case, however.
In fact, there are many parents with psychological conditions that are good parents. The issue is how, and if indeed a parent has a mental health issue, does it impact his or her ability to parent. A myopic focus on a label obscures the ability to provide other key information to your counsel to make your case as strong as it can be.
High-conflict child custody cases are difficult. However, the most common downfalls that cause unnecessary litigation, emotional scars for the parents, and undermine the children’s sense of who they are and what their relationships can be, is limited by understanding and embracing these seven (7) practical tips. They will save you time, money, and avoid litigation until the children are emancipated at the age of 19 or finish their college.
This blog is written by attorneys at Ciyou & Dixon, P.C. Ciyou & Dixon, P.C. advocates handle high-conflict child custody cases throughout the State of Indiana. This blog post is not intended as legal advice or a solicitation for services. It is an advertisement.