Getting the family law client to behave

A large but unsung part of a good family law attorney’s role is to get clients to behave well towards the opposing party. Not only is this role unsung, it often makes the attorney extremely unpopular with the client–especially in the early part of the representation. However being cognizant of this role is often vital to a successful outcome.

Getting a client to “behave” has two components. The obvious component is getting a client to follow the court order. Oftentimes the client will have numerous complaints about provisions of a family court order and will be resistant to follow those provisions. Meanwhile the client will have complaints about the other party not following the court order–often regarding the same provisions the client is not following. Such clients always have reasons their noncompliance is reasonable or necessary while refusing to consider the other party’s explanations for noncompliance. They demand that the order be enforced against the other party and demand that the order be modified to be more to their liking.

There are limited circumstances in which one can counsel the client not to follow a court order. Otherwise, clients need to be strongly encouraged [prodded] to follow the court order. Often the attorney will be resented for this. However such clients need to be reminded of the court’s contempt powers for not following court orders: up to a $1,500 fine; up to 300 hours of community service; up to one year in prison; or any combination thereof. They also need to be reminded that family court judges are unlikely to modify orders in their favor when they won’t follow the existing order.

The other component to getting a client to behave is getting the client’s attitude to reflect the tenor of the court order. Clients need to be reminding that some family court judge determined the custodial provisions of existing orders were in the child’s best interests and it is not their role to unilaterally overrule that judge’s decision. Often clients will do the bare minimum required and with a bad attitude. Family court judges expect–or at least hope for–better. A custodial parent who is never flexible with the other parent’s visitation may be following the court order but is not behaving in a manner that a family court judge would find in the child’s best interests. Similarly for a custodial parent who never allows the other parent more visitation than the court-ordered minimum (unless that parent already has substantial visitation), or a custodial parent who “fulfils” a duty to consult by merely telling the other parent what he or she is doing before doing it and who summarily rejects the other parent’s input without explanation.  While a court order might not require a non-custodial parent to return the child’s items at the end of a visitation period, a family court judge expects that parent to do so.

Generosity or flexibility towards the non-custodial parent does not prevent a custodial parent from setting limits on the other parent’s contact with the child when such limits are designed to protect the child. However, demonstrating a flexible and generous attitude towards the other parent impresses a family court judge by showing that parent is able to put the child’s best interests ahead of the parties’ rancor. If that parent then needs to ask the court to put further limits on the other parent, or otherwise modify the order in his or her favor, such a parent will be more likely to prevail in that request.

My experience is that some family law clients in contentious cases want to focus on the other party’s misbehavior and make excuses for their own misbehavior [this is probably a major factor in making the case so contentious]. However it is better for such clients to focus on their own behavior–and behave in a manner that a family court judge would approve of. Their own behavior is something they actually have control over. Further, demonstrating appropriate behavior is their best [only?] chance of resolving their conflict in a manner that leaves them satisfied. Oftentimes, a positive adjustment in a client’s attitude is sufficient to reduce the conflict. Further, family court judges are much more likely to modify orders in a party’s favor if that party is complying with the existing order and demonstrating a good attitude towards the other party.

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