For whatever reason, prospective family law clients often start our introductions with, “I hear you’re a bulldog.” They say it with all the confidence in the world that the compliment will flatter me to no end, thus kicking off our relationship as co-conspirators in our shared goal of conquest and victory at all costs.
But what instantly goes through my mind is the recognition that I have before me someone who believes we’re still operating in a family court system where making the other parent look as bad as possible is at all effective.
It’s not. In fact, it’s counterproductive to overall success.
That moment is the first important step for lawyers in managing our clients’ expectations.
Family court has changed a lot since your parents got divorced. In fact, it’s changed quite a bit in even just the last five years. If you are dead set on just getting in front of the judge, you are very likely to be disappointed in the outcome because, unfortunately, the things you think are important to your “case” are probably really not. Let me, just very bluntly, shoot down some common assumptions parents often have when they approach a conflict with their exes that may require judicial intervention.
- Your gender does not matter. Moms are not favored over Dads. Yes, there are some hurdles for Dads to get past when the parents are not married, but ultimately the law will recognize as equal each parent’s right to be a parent. This is now seen as the healthiest way for a child to develop – with two engaged parents who support each other as parents.
- “Full custody” is pretty much a thing of the past. Most parents share joint legal custody, meaning they are expected to work together to make decisions that are in their children’s best interests. This does not mean that parents will necessarily share equal time with their children, although that model is becoming favored more and more as a great way for a child to grow up, so long as the parents can commit to maintaining stability.
- The Indiana Parenting Time Guidelines represent the minimum time a non-custodial parent will receive. They are called Guidelines for a reason. It is where a Court will start. It is rare that any parent will receive any less than that time. And if you think your case is one in which that should happen, you are the one that must prove that there is something really wrong with the other parent to justify less than that. In fact, it is becoming more and more common that a “non-custodial” parent will end up with a parenting time schedule that exceeds the Guidelines.
- Judges expect exes with children together to remain respectful co-parents. The parent who demonstrates more flexibility and and acceptance of the other parent’s value in their children’s lives is the parent who will most often secure the role as “primary,” especially if the other parent is spending more energy on making the other parent look bad. After all, when you make your case by making the other parent look bad, you are kind of sending the judge a signal that you want your child to experience bad parenting. For example, let’s say you spend the months leading up to your trial gathering proof that your daughter’s homework isn’t getting done during the times she is with the other parent. Meanwhile, your daughter’s homework isn’t getting done all the time, and the only thing you’re doing to address it is gather the evidence in preparation for your trial. You might think the judge is going to come down hard against your ex for that, perhaps take away her school night visits and allow less time for her on the weekends. GOTCHA! Right? Usually wrong. Rather, it is possible that a judge will question why you knowingly allowed your daughter’s homework to go undone for so long. Your ex’s attorney will likely cross-examine you on why you didn’t try to address the issue with your ex, in an effort to solve a problem and make your daughter’s educational experience successful. In that scenario, you may actually come off looking worse than your ex.
- Your children are poor fact reporters. Their concepts of time and perception of what language means are still developing. And they often think parents are “mean.” They want to have fun, eat junk food, and stay up late. They will misinterpret things they hear or see. If your child reports things to you, verify and recognize that they can get things wrong. Consider the example of a Mom who warns her toddler not to swallow the toothpaste because it’s “poison.” When the toddler goes to Dad and says, “Mom gave me poison today,” Dad should probably not run to his lawyer or call Child Protective Services.
- If you go to trial and ask the judge to decide your case, you are likely to get a much worse outcome than you would have had you resolved the case through negotiation and settlement efforts. A good and effective resolution is going to need to be pretty creative and unique to your situation. That can only be done through negotiation and mediation. A judge is going to decide who gets custody, what the parenting time schedule is, how much child support should be, and maybe some minor details beyond that. Trust me, while judges are amazingly detailed and work incredibly hard at getting decisions right, they are inevitably not going to be able to address many details you think are important. And trust me, you are not going to enjoy the experience of a long day or three of trial.
- At trial, there’s a whole lot of information you may want to put in front of the judge that won’t get in, and you’re unlikely to understand why. But there are rules of evidence that keep judges from hearing a lot of information. Witnesses may only testify about what they have observed, and unless they are qualified as an expert in some field, they may not give their opinions. So if you want the judge to know what Aunt Betty told you she saw your ex do, you’ve got to get Aunt Betty on that witness stand. You say you’ve got the text messages to prove it? Inadmissible. Aunt Betty still has to show up and testify. No, an affidavit that she signs won’t do it either. And most people like teachers, day care providers, and health care providers are not going to want to get in the middle of your conflict with your ex. The bottom line is that he amount of time and process required to make certain information admissible evidence is often not something you’re going to be willing to pay for once you find out how much it’s going to cost. Therefore, in the end, your trial is going to come down to a he-said-she-said battle of credibility between you and your ex. And because human nature is what it is, you are going to have all the confidence in the world that you’re the one the judge will believe because you think it’s so obvious that your ex is lying. That doesn’t always happen. When I mediate cases as a neutral and have an opportunity to hear both parties tell me their truths, it is very common that the two parents have incredibly different but truly sincere recollections of the exact same instance. And neither one of them is actually lying. Judges know this is usually the way it is.
- Lawyers have ethical obligations not only to clients, but also to opposing lawyers and parties, judges, and the justice system as a whole. Judges expect us to not be jerks to other humans. We are charged, first and foremost, with being respectful and civil in everything we do. This behavior affects our credibility with colleagues and the courts. Lawyers who are disrespectful to other lawyers or other parties lose credibility, and not having credibility can negatively affect your lawyer’s success.
With all of the above in mind, I therefore work very hard from the very moment I meet a new client in educating her on how to find the best resolution that will minimize the need for ongoing court intervention. That requires your ex to feel that he is not being steamrolled or treated like dirt by your lawyer. Will a bulldog-lawyer be likely to make your ex feel like he can trust a resolution that is negotiated without a judge being involved? Not likely. Would you want to work cooperatively with your ex’s lawyer if she had spent the past five months belittling you in emails between the lawyers? Of course not. That old saying of attracting more flies with honey than vinegar is absolutely true. Putting someone on the defensive is the absolute worst way to help a family find peace. And ultimately, that’s what most people prefer. So give peace a chance and let the bulldog stay in the dog house where he belongs.