How to “win” in child custody disputes

This title is somewhat deceptive, as I don’t believe that anyone really wins in high conflict family law disputes. This is especially true when the conflict involves children. I can, however, share my observations about how you can put forward your best case from both a legal and practical perspective:

1. Be child-focused

Focus on what your child needs, not what you need. Think and act from your child’s point of view.

Above all else, children need stability in relationships – stability in the relationship they have with mum and with dad, and stability in the relationship between their parents. Your child needs to know that mum and dad can speak to each other with some level of civility. They need to know that it’s ok for them to speak about each parent in a positive way with the other parent.

Children who are in the midst of a custody dispute say that, by the time it gets to court, they are worn out – children just want their parents to stop fighting. This is more important to them than how they spend the school holidays or how Christmas Day is divided.

The biggest gift you can give your child in the separation process is to allow them to be a child without worries -– don’t burden your child with adult concepts and decisions, protect your child from the frustrations and issues you have with the other parent.

2. Demonstrate cooperative parenting 

Biologically, your child is driven to love both parents – no matter what. Chances are, regardless of what has been happening, your child wants a loving, meaningful relationship with both of you.

It hurts your child to see you having an argument or to hear one parent speaking badly about the other – the hurt is emotional, psychological and even developmental. A good resource for more information about this is Up To Parents.

From a legal perspective, the more you are able to demonstrate in real terms your capacity to cooperate with the other parent, the stronger your case is likely to be.

This might take a superhero effort on your part – particularly if the other parent tends to push your buttons – but this will benefit your child (and you) in the end.

3. Don’t say, write or text ‘my child’ – ever!

  • The children
  • Our children
  • The boys
  • Our daughters

– all of these are fine.

My child or my children  makes it look like you see the children as your possessions, rather than as human beings in their own right.

4. Be balanced and fair towards the other parent

Judges, lawyers and family report writers are not impressed by ‘he said/she said’ bickering between parents.

If your affidavit contains nothing but criticisms about the other parent, or if you badmouth and blame the other parent in the family report interviews, it will inevitably reflect poorly on you.

The reality is that no-one is all good or all bad. You might have very different parenting values from the other parent. Nonetheless, it is in your interests to see and acknowledge the positive qualities they bring to your children.

5. Be polite in texts and emails to the other parent

When you are writing a text or email, imagine it being read out in court.

If you send a demanding, threatening or hateful text or email to the other parent, chances are their lawyer will annexe it to an affidavit as independent evidence against you.

If the other parent sends you a nasty text or email, don’t respond in kind. Sometimes the best approach is simply ignoring the communication. If you need to respond, stick to the facts and stay polite. Don’t engage in tit for tat.

6. Own your flaws and mistakes

There is no such thing as a perfect parent. If you’re in the midst of a custody dispute, you’ve probably said or done some things you regret.

Showing insight into your own behaviour, and a willingness to change, can go a long way to taking the sting out of negative incidents that have happened in the past.

It is human to be flawed and to make mistakes – own it, rather than give blanket denials which will only reduce your credibility if any independent evidence comes to light.

The court is more interested in a positive future for your child, rather than focusing on the negatives of the past.

7. Have realistic expectations

I see a lot of people with an unrealistic expectation that things will go all their way in the court process. Usually, what happens is that both parents will cop some criticism, and some form of middle ground outcome will ultimately be reached.

Family law is strongly focused on what is in the children’s best interests. Provided that the children are not at risk of harm in either parent’s care, it is likely their best interests are served by both parents having a meaningful involvement in the children’s lives.

8. Be prepared to compromise 

Work out what your ideal situation would be, both from your child’s perspective and from your perspective. Then work out what arrangements may not be your perfect ideal, but may be what you could live with.

Be open-minded in thinking about different options and arrangements that could work.

Justine Dean – Samford Family Law