Joint Custody: It’s how you ask

Posted Tuesday, June 8th, 2010 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

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.

9 thoughts on Joint Custody: It’s how you ask

  1. Greg , you forgot the third category, I want joint custody of at least 110 nights so that I will not have to pay as much child support.

    Back when the Supreme Court of South Carolina consisted of five old men who had never changed a diaper, the Court said that joint custody was bad for children. My beliefs over the years have gone to both extremes but I am coming back to the view of the five old men. Do you have any reliable scientific data either supporting or opposing joint custody?

    1. Thomas:

      I have never had anyone claim they wanted joint custody so that they could apply shared custody guidelines support. Often I will have my male clients specifically forgo a request for shared custody child support to “prove” that their request is motivated by a desire to have a deeper relationship with their child as opposed to a money saving measure.

      I find it repulsive that family law has turned children into financial “assets” that their parents then fight over but I cannot design a better system so I don’t complain.

      1. California observer says:

        As a scientist I LOVE the idea of using real data and studies to inform custody decisions (or any other legal decisions, for that matter). But as a single father with sole custody of a daughter, and as an interested observer of society, I’m pretty sure that the world has changed a lot since those five old men were deciding things, and might have changed since the last set of studies were done.

        I think it’s well established that kids are healthier if they have good bonds with both parents (regardless of custody), so any study used to prefer sole custody over joint custody had better be iron-clad and recent.

  2. Todd Manley says:

    Greg – In another example of the importance of pleadings, I once had a judge refuse to approve a joint custody agreement because the wife had explicitly pled for divorce on physical cruelty grounds. As I recall the judge’s questioning of her, he asked how he could approve a joint custody arrangement if the father was all of the things she stated he was in the Complaint. The mother stood frozen as she could not deny her pled allegations.

    1. Todd:

      So which parent ended up with custody?

      1. Todd Manley says:


        Mother did. Case settled after going into the hallway to discuss it further. Father wanted the case resolved (probably for other financial and personal reasons), and therefore he agreed for Mother to have sole custody. That was apparently enough to satisfy the Judge because he approved the agreement.

        1. A shame that Father lost the benefit of the agreement because of the inconsistency between Mother’s pleading and her agreement.

  3. andrew beever says:


    I lost custody in a very similiar way. Was primary caretaker for children over the past two years. Had letters from schools and church and nuetral friends. But since she complained about me so much to the evaluator the evaluator (without confirming Exs stories nor givin any proof from ex on false aligations) suggested custody to ex wife. Even though we established that she left the primary home and I had children aprx 5 days a week the court still gave her custody based on the fact that if we cant get along joint custody will not work. It was very disheartening. And now she is using every opportunity to make my life as miserable as possible by denying me extra parenting time when she works and not letting the children speak with me on the phone. It is very sad.

  4. Abigail says:

    Hi , my names Abigail an I’m 14 years old about to be 15 an i have a little boy by a 16 year old an he’s mix so my grandmother was raised to not date blacks or out of your blood line she says she dont like the father of my child cause I snuck off an got pregnant an i understand but she’s racist an she says that’s not the reason she dont like him but it’s obviously the reason she dont like him because my sister is 16 she dates a 18 year old an he is white an she allows her to be with him she knows that the have sex I’m not saying she agrees for them to have sex but she knows there doing it an she don’t make a big deal about them having sex an I believe its because hes white but my child’s father is mix an she makes a big deal about it ! Is there a way me an my sons father can take it to court an request for joint custody so my grandmother will not be Will able to keep my son away from his father because shes saying she is going to set it up in the sunshine center for him to visit our son which is not right ! Please help

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