Joint Custody: It’s how you ask

A lesson instilled as a child by my parents and teachers is that “it’s not just what you ask for; it’s how you ask for it.” The lesson was poorly absorbed as a child (my fault; not theirs) but I am learning it better as I get older.  Nowhere in the practice of family is this lesson more important than in seeking joint custody.

In my experience it’s generally fathers who file petitions for joint custody of their children.  These claims typically fall into to distinct lines of argument: 1) I should get joint custody because I’m an excellent father and 2) I should get joint custody because she’s a lousy mother.  It’s hard to defend the former (assuming the father has been actively involved with the children) and easy to defend the latter.

That the other parent is a lousy parent is an excellent basis to obtain primary or sole custody of a child.  However joint custody presumes that the parents can get along regarding their child. Thus starting off a lawsuit with an attack on the other parent is to begin the case from an inherently flawed analytical position.  My defense to such claims is “how can my client expect to cooperatively coparent a child when the other parent attacks her (or him)?”  The posture of these cases has the defendant fending off the typically overblown attacks of the other parent while noting that any inability of the parties to parent cooperatively is due to the other parent’s unjustified hostility.  The result is a sympathetic defendant and an unsympathetic plaintiff.

In contrast, starting off a lawsuit with a claim that joint custody should be awarded because the plaintiff is an excellent parent–assuming this claim has some justification–leaves the defendant and the defendant’s attorney in a quandary.  Acknowledge the claim and the plaintiff has largely justified his request for joint custody.  Dispute the claim without strong evidence to justify the denial and the result is a sympathetic plaintiff (who only wants his or her strong relationship with the child substantiated in a court order) and an unsympathetic defendant (who appears unduly resistant to cooperatively parenting the child).  The best way to defend such claims is to acknowledge the good points of the plaintiff-parent but note that this parent has not been that actively involved.  Such a defense enables the defendant to dispute the joint custody request without generating sympathy for the plaintiff.

Recent experience shows that family court judges, when considering approval of an agreement involving joint custody of children, routinely ask the parties whether the “get along” well enough to make joint custody feasible.  I strongly presume this consideration is at the forefront of their thoughts in considering joint custody requests made over one party’s objection.  Starting one’s joint custody case with a pleading and strategy that highlights the parties’ inability to get along seems highly counterproductive.  It has been my experience that parents who seek joint custody by highlighting their excellence have a much greater success rate than parents who seek joint custody by highlighting the other parent’s defects.  How one asks for joint custody often determines whether one obtains joint custody.

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