Custody Battle Tips -11 Common Mistakes To Avoid

Starting and going through a custody case can be hard if you aren’t familiar with the system, even if you get along with the other parent. When parents disagree or can’t get along, they might try to do things that increase their chances of getting their child for the amount of time they want. Most parents try to do what they think is best for their children, but there is sometimes a disconnect between what a parent thinks is right, and what a judicial officer thinks is right. A wrong move can potentially start you off on the wrong foot with a judicial officer, or affect the amount of time you get with your child. To help you navigate the custody process a little more smoothly, I have outlined the eleven most common mistakes parents make in a custody battle so you can avoid making them on your own.

Just because your neighbor, family member, or friend might have gone through a similar situation, does not mean that their outcome and schedule will happen in your case, or work for your family. Every family is different. People have different work schedules, school schedules, sports schedules, needs, hobbies, religious preferences, cultural holidays, family events, traditions, vacations, etc. A parenting schedule is meant to cover every day of your child’s life until your child turns 18. If something ends up not working out, you won’t be able to do anything about it without an agreement between the parties or a court order. That being said, it might be a good idea to think about your family dynamics prior to submitting a formal parenting schedule to the court.

1. I constantly hear parents say that they stopped visitation, or do not think they are entitled to visitation, because a child support payment hasn’t been made. Just because a parent doesn’t pay child support, does not mean that parent isn’t entitled to visitation. A parent is entitled to visitation either way, and a judicial officer will likely view withholding the child in a negative light. The only time child support and visitation are connected, is when the non-custodial parent has substantial time with the child and requests a deviation in child support because of it.

The majority of parents don’t start out with an official Parenting Plan. However, without court-ordered visitation in place, technically both parents are allowed to have the child full-time. This tends to make parents nervous, and tensions escalate when court becomes a possibility. When deciding custody and visitation, the judicial officer does look at who the child has been with prior to the court date, but not to the exclusion of everything else. The judicial officer looks at what the parents had been doing historically (usually in terms of months or years). Unless the other parent has threatened to withhold the child from you, abscond with the child, or harm the child, or you have substantive evidence that the other parent has an issue impacting their ability to parent (drug/alcohol/mental health/physical health issue), then do not withhold the child from the other parent, and keep to your regular parenting schedule.

A lot of times a child figures out something is going on even if parents are careful to never mention the battle going on. I understand that parents want to be honest with their child about what is happening, or at least present their “side of the story” if it seems like their child is getting information from the other parent. However, talking to your child about any custody issues can be bad for not only your court case, but for your day-to-day life with them. A child often feels as though they should take sides, and it could create some psychological and emotional issues for all parties involved. Instead of discussing the battle with your child, or telling them things when they ask, simply tell them that their parents are working on some things, and you both love them very much. 

Talking badly about anyone means you are potentially opening yourself up to a confrontation if it gets back to the person you are talking about, and this almost always happens in custody battles. Talking to family members and friends about the other parent could result in those people taking the other parent’s side, either silently or by writing a statement in their favor. Talking to your child could result in concerns of parental alienation, and could affect the amount of time you get with your child. You will be parenting with the other parent for the rest of your child’s life, so the best way to approach negative feelings may be to discuss them with a counselor.

A lot of parents come to me and ask at what age their child gets to decide where they live. The answer is they don’t, unless the child is 17 by the time the case is in front of the judicial officer and then the judicial officer generally says who the primary parent is, and that the non-primary parent and the child will work out visitation. Unfortunately, a judicial officer does not hear directly from the child unless there are extreme circumstances that might warrant it. You can’t say where the child wants to live because that is considered hearsay. The only time a child might be able to say where they want to live is if there is a guardian ad litem involved, or other professional third parties though they want to be heard, then you should discuss engaging a guardian ad litem or counselor for the duration of the custody battle.

Washington State is a two-party state, which means that in the event of an audio or video recording of private communication, both parties must have knowledge of the recording and consent to it. If you record the other parent without their knowledge or consent, then you could leave yourself exposed to a potential criminal charge, or you could hurt your credibility in the eyes of the judicial officer even if the recording would be helpful to your custody battle. Recordings that do not follow the law cannot be used in your custody battle as evidence. If you are going to record something you need to ask first, or you could always ask the people present to write a statement on your behalf.

I have parents come in that say the other parent isn’t involved, isn’t paying child support, doesn’t care, etc. They then ask if it is possible to terminate the rights of that parent. In almost all situations, it is not likely that you will be able to terminate the other parent’s rights. Parents have a fundamental right to parent their child, and if you are about to start a custody battle, are currently in the middle of one, or just finished one, it is extremely unlikely that you will have a good case to completely terminate the other parent’s parental rights. In addition to the termination standard being very difficult to achieve, you have to have another parent ready to step in. However, you do have options to limit a parent’s contact with your child if that parent hasn’t been the best or it isn’t in the child’s best interests to be involved with that parent. If you are wanting to limit or completely cut off contact between the other parent and your child, I recommend you speak with an attorney to see what your options might be.

In almost all custody cases I see, there is always one parent that primarily parents the child, and other parent works outside the home. This is neither a good nor bad thing, people divide their responsibilities the best they can with the resources they have. However, in the event of a brewing custody battle, a working parent cannot simply decide they want to share in the parenting responsibilities 50/50, or even primarily, without showing the judicial officer that you have historically helped out at that level, or there is a very good reason for switching the parent primarily responsible for parenting the child. This is called setting a precedent. The judicial officer looks at what the parents did prior to separation as well as after separation. If you parented the child 25% of the time prior to separation, and you still parent the child 25% of the time after separation, the judicial officer is likely not going to increase your parenting time to 50% (or higher) without very good reasons for doing so. If you parented the child 25% of the time prior to separation, and you now each parent the child 50% of the time after separation, you are setting a good precedent to continue parenting 50% of time, unless either party can show that it is not in the child’s best interests.

Even if you are the primary parent and that is not disputed by the other parent, once a court action has started and pleadings are filed, a primary parent may not move without providing the other parent with adequate and appropriate notice. The non-primary parent just needs notice if the move is inside the school district, but the non-primary parent has the option and ability to object to a move outside the school district and potentially prevent the move from taking place if a judicial officer agrees with that parent. Some parents think they can simply move, and nobody can tell them otherwise. If you don’t give the appropriate notice and the other parent objects to the move, it is possible a judicial officer may tell you that the child needs to move back to the school district they were in – which could mean you moving back, or the objecting parent becoming the primary parent. There are a number of factors you need to look at if you are thinking of moving and a custody battle is involved. Please look at the statute and talk with an attorney before making any decisions.

I do not discriminate against potential clients, and have (and currently do) represent moms and dads in custody battles. I have heard from both sides that they think judicial officers are biased against dads. It is true that prior to the law changing several years ago, mothers were given custody of their child almost automatically. Some parents think that bias still exists to this day, and I have not found that to be the case. As I stated under #9 above, the judicial officer looks at who has been caring for the child historically. I have a number of dad clients that were historically the primary parent, and the judicial officer has continued that schedule. Mothers do not get a “leg up” so to speak, unless the child is very young and still breast feeding. Even then, the judicial officer looks very carefully at whether breast feeding is necessary, and what options the parents have to get around it. Try not to assume what a judicial officer is going to do without speaking to an attorney about it. Attorneys go in front of judicial officers every week, so they tend to have a good idea of what the possibilities are.

Our Tip:

Going through a custody battle involves taking into consideration a lot of different factors, in addition to you trying to be the best parent you can be. A misstep could affect your custody battle outcome, so I highly recommend you speak with an attorney prior to going through one, or as soon as one starts.