Praising the other parent in a custody trial

Posted Saturday, February 11th, 2023 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Miscellaneous, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

The past few years I begun a practice of having my custody clients develop a few solid minutes of testimony praising the other parent.  Such testimony would seem counterintuitive.  After all, isn’t the goal of a custody trial to convince the court that one is the better parent?

Yet I find this testimony is often the most powerful part of my client’s case.  When developing my client’s testimony outline, I leave a section near the end (typically, right before my client begins discussing specific litigation goals) blank.  I tell the client I want them to fill this section in with praise for the other parent.  I place only three conditions on what they add: it must be sincere; it must be unqualified (“yes and” not “yes but”); it must last at least a few (preferably at least five) minutes.

After they draft, I review to ensure the praise isn’t qualified.  If it is, I won’t edit but will make them redraft until it isn’t.  While I will often have my client rehearse parts of their testimony that have them concerned, this is the only part of their testimony they will always rehearse beforehand.  I want to ensure they can deliver this testimony sincerely.  If they can’t, they redraft until they can.  I never directly edit this portion of their testimony.  My client simply drafts testimony and we rehearse giving it until it is unqualified, can be delivered sincerely, and lasts at least a few minutes.

As indicated above, I find this testimony extremely powerful. Coming after hours of testimony in which the opposing party’s parenting choices have been continuously questioned, this testimony demonstrates that my client is able to see what is good about the other parent and is willing to acknowledge this, under oath, directly to him or her and to the person who will ultimately resolve their custody dispute.  It is an act of both humility and grace.

I would have concerns about clients who cannot do this. On cross examination, my client may be asked numerous questions verifying positive attributes of the other parent.  If they cannot praise that parent on direct examination, they likely won’t verify favorable information on cross examination.  Assuming that favorable information has substantial corroboration, this hurts my client’s credibility. Further, if there are concerns about parental alienation, the ability to provide such testimony reduces those concerns and the inability to do so heightens them.

One hope in presenting this testimony is that it enables the opposing party to be “seen.”  This can be both healing and a pathway to better coparenting. I would also hope family court judges find this testimony refreshing.  I don’t see my colleagues doing it and cannot recall ever hearing an opposing party unreservedly praise my client.  I doubt family court judges encounter such testimony frequently—if at all. Given the amount of acrimony family court judges encounter, sincere praise for the other parent should be noteworthy.

The biggest goal in presenting such testimony is that it informs the family court judge that my client holds his or her coparent in some regard (if our position is that the other parent is fit) or at least able to see some of that parent’s virtues (if we contend that parent is unfit).  This testimony can give the judge some confidence that placing the child with my client will not cause the child to be alienated from the other parent.  In my experience alienating parents cannot give this testimony sincerely and without qualification. Even when they can such testimony is only a few sentences.

Not every custody litigant is capable of providing such testimony. I avoid taking cases to trial when my client cannot. However, when then can, that testimony is so uncommon and so powerful that I am loath to reveal this strategy. 

3 thoughts on Praising the other parent in a custody trial

  1. Andrea Moore says:

    I love this. I have seen Doug Brannon elicit such testimony from his client to great effect. And as a guardian ad litem, I often ask parents to tell me the other parent’s strengths. It’s very enlightening.

  2. jess says:

    A tip for those clients who find themselves having to write this:
    What would your child say if asked the same question. (ie. What is good about your mom? What do you like about your dad?)

  3. David Smith says:

    This is great. I have had clients offer praise for the other party and often make sure to do so in affidavits for the temporary hearing. One of the greatest benefits is that it shows that your client is a reasonable and kind person when it is likely the other party is only spewing negativity. But, I have limited it usually to only a few sentences though. Now seeing some of your additional logic, I believe it would be beneficial to go further.

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