It pays to be nice (especially in a custody case)

Posted Saturday, January 29th, 2022 by Gregory Forman
Filed under Attorney-Client Relations, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Early in my career, the standard procedure in contested custody cases was to throw as much mud at the other side as you could and hope more of your mud stuck than the mud being thrown at your client. This was especially true in temporary hearings–where the parties relied upon affidavits to establish their factual positions and outrageous claims were not subject to cross examination. Some attorneys hated this; some reveled in it. Few avoided it or found it ineffective.

I still see attorneys engaging in this practice although not nearly to the extent I saw it 25 years ago. Experience has led me to determine it is counterproductive. Not only does this behavior damage one’s credibility with the court–which this recently blog discusses in detail–it is also damaging on a basic factual level.

In any divorce case, fault in the breakup of a marriage can be a factor in setting alimony or deciding upon an equitable distribution of marital assets and debts. One spouse’s utter hatred–especially when that hatred is not congruent with the other party’s actual behavior–can reasonably lead a family court judge to conclude that this hatred was a significant cause of (i.e., the “fault” in) the marital breakup.

In any custody case, one parent’s dislike of the other parent impacts many of the factors the family court is required to consider under S.C. Code § 63-15-240(B). It specifically impacts factor six, “the actions of each parent to encourage the continuing parent child relationship between the child and the other parent…” It likely impacts factors two (“the capacity and the disposition of the parents to understand and meet the needs of the child”), seven (“the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute”), eight (“any effort by one parent to disparage the other parent in front of the child”), and twelve (“the mental and physical health of all individuals involved….”).

Every divorce case is preceded by a wedding. Even for parents who did not consciously decide to conceive, almost every child is the product of a relationship in which the parents had some attraction for the other. While the court does not expect these parties to lack conflict–they would not be litigating if they didn’t–it does expect them to show some respect for an opposing party they once held in higher regard.

Thus, litigants are best served by acknowledging the other party’s positive aspects and recognizing that their own weaknesses may have caused problems in the marital relationship or conflicts in parenting. Litigants often fear acknowledging the other side’s strengths or their own weaknesses in the belief that doing so damages their case and helps the other side. However, acknowledging one’s own weaknesses and the other side’s strengths actually demonstrates maturity.

Maturity is always an excellent thing to establish in family court. A judge can have much greater confidence placing physical custody and decision making authority with a mature parent. While maturity isn’t as important an issue in alimony or property division, it does have some impact. A judge is more likely to find a mature person’s position to be a reasonable one. An immature spouse may believe he or she needs (more) alimony; a family court judge may think he or she needs to grow up.

This doesn’t mean the other parent’s faults are ignored, especially when such faults make a marriage untenable or demonstrate abuse or neglect of children. It does mean that such faults are better demonstrated through exhibits or corroborating testimony than from a party’s own testimony. I try to avoid my client’s testimony being the only evidence of the opposing party’s flaws. The likelihood that the judge finds such testimony false and manipulative rarely outweighs the benefits of such uncorroborated testimony. I further avoid my client’s testimony raising picayune issues about the other party. It looks merely petty.

Finally, I make sure my client acknowledges his or her own failings in sustaining a marriage or co-parenting children. Any detriment in establishing my client’s imperfection is outweighed by demonstrating my client’s maturity. I have never seen a judge award custody to a perfect parent. In close cases custody cases [and taking custody cases to trial when the solution to custody should be obvious is always a failure on one party’s or attorney’s part], custody is almost always awarded to the more mature parent. I prefer that parent be my client.

That you catch more flies with honey than with vinegar is true in most aspects of life. Experience demonstrates its validity as a family court litigation strategy.

One thought on It pays to be nice (especially in a custody case)

  1. G. Hall says:

    Valid points. Especially appreciated the part where you point out that at one time, there was love for each other. The only one that gets hurt is the child when parent don’t play nice.

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