In contested custody litigation, there’s no downside to kindness

Posted Saturday, March 4th, 2023 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

One of the quickest, easiest, and most effective “fixes” I can counsel my clients to do in contested custody litigation is to be kind to their co-parent.  Shockingly easy.  Shockingly effective.  Yet advice that many clients find hard to comprehend, let alone implement.

I suspect part of the resistance is due to our culture’s confusion of kindness with accommodation.  Many of my custody clients are correct in actively resisting the other parent’s greater involvement in the child’s time or custodial control.   There are rare cases in which it is appropriate for my client to resist any relationship between the other parent and the child.  However, such resistance to the other parent’s greater involvement does not require rudeness.

Here are two typical examples where kindness is the obvious best option but rarely implemented (at least in the context of contested custody litigation) with an explanation of why the kind option offers nothing but upside.

Sometimes one parent has an important event which the children should attend but that event is during the other parent’s custodial time–a parent’s wedding being a not uncommon example.  When my clients seek counsel on whether they should allow the other parent additional time so the children can attend the wedding, my counsel is to allow the children to attend with no demand for makeup time.  My clients hate this advice—feeling like I am asking them to be suckers for a co-parent who would not show them such accommodation.

Yet, in the context of custody litigation, there is no downside to such accommodation.  If the client denies the accommodation, it’s an ugly look. The other side can use that denial as leverage in settlement negotiations or demonstrate the client’s ugliness at trial.  Moreover, there may be a time when the client requests similar accommodation.  If that client has given accommodation without quid pro quo, there is a high likelihood that one will have that request granted.  If the request is denied, or if quid pro quo is demanded in return, one still comes out ahead when custody is finally resolved.  One’s negotiating or trial posture is strengthened whenever one can show one’s client did the kind thing and the other parent, given similar circumstances, did not.

Another example in when legal custodians consider allowing the other parent input into major decisions.  Sometimes, the court order does not require seeking such input. Often the requirement is met through merely perfunctory notice of the intention to make a decision with a request for input that can be summarily rejected.  However, treating the non-custodial parent kindly is always beneficial.  To treat that parent kindly, the input should be sought sincerely, early in the decision-making process, and provide sufficient information to allow the non-custodial parent to understand the options and the custodial parent’s thought process.  Further, unless the response to the request for input is offensive, the client should acknowledge the response and address legitimate concerns or critiques. The mere act of seeking this input in this manner inoculates the client against allegations of parental alienation.

In a dysfunctional parenting relationship three things can happen when the custodial parent seeks such input from the other parent.[i]  The most unlikely thing is the other parent offers useful input that the client adopts.  In that circumstance I have an example I can use at trial of my client being an exemplary custodial parent, who sought and incorporated input from the other parent.  These examples might also help heal a dysfunctional parenting relationship.

The most typical response is that the non-custodial parent will complain about the decision but not offer useful input.  In that circumstance I now have evidence of my client attempting to do the kind thing but being rebuffed.  Another typical response is the non-custodial parent will “demand” a different decision, often coupling this demand with harsh criticisms of my client’s parenting.  That response is a litigation goldmine: it explains and partially justifies any gatekeeping behavior of my client and demonstrates clearly that the other parent is the cause of co-parenting problems.

Many of my recent custody trials can be summed up with the simple explanation, “the kinder parent prevailed.”  In contested custody litigation, there’s no downside to kindness.

[i] I advise my custodial clients to seek this input in writing and encourage the use of OurFamilyWizard for the reasons explained in this blog.

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