How to Succeed in Family Court

by Carey Linde

How the Game is Played

Family court certainly is not a game. But the metaphor of  “game” is useful to make an  important point: if you don’t learn and play by  the key rules of the game, you are probably going to lose.

If you were playing a championship game of football, you wouldn’t spend your time during the game complaining about  the rules and trying to change them as the game was being played. Successful players of any sport study and know the existing rules and are prepared to play by them. Yet…many fathers caught up in the serious and often alien experience of  Family Court do themselves great damage by wasting time, emotion, energy and money trying to change the rules while they are  struggling on the field.

Fathers understandably see the rules of court procedure and laws governing children after separation as overly complicated, old-fashioned, unfair, and  biased. The laws need changing and everyone involved needs better education on the need and benefits of real shared parenting. Yes, the system cries out for overdue reform. And yes, the whole process can be extremely expensive while at the same time  managing to be ineffective. To a great extent, you have to rely on your lawyer to understand the legal rules. Make sure you learn as much as you can about the rules in your jurisdiction. The importance of this can’t be over-emphasized.

However, when a man is tied up in litigation in family court, it is not the time to worry about reforming the system. Many fathers feel they are being dealt with harshly and unfairly. They choose sometimes to feel so insulted that they let their frustrations distract them from the downfield goal posts. Or worse, commit a foul so that the ref throws down the penalty flag. If you take your eye off the ball, or run to the sidelines to try to prove that the rules aren’t fair and should be changed, you will fumble the ball, and it will be recovered by your opponent.

After your court case is behind you and you have had time to readjust in your new life, then is the best time to re-enter the legal debate and work for reform of the law. In the meantime – keep your eye on the ball and play by the rules!  You can be one of those rare few men who, after the legal hassles are all  behind them, still stay involved in trying to help other new single fathers and work on law reform.

How Will a Judge Look at You

The simplest way to look at what a father must do to be successful and stay in the lives of his children is to view the process from where the judge sits, and to apply that perspective to your case. In short, you have to be able to produce for the judge a history of, and proposal for, the children that fits with the judge’s (society’s) preconception of what is in the best interest of children generally. For most judges, while it isn’t quite a case of “one size fits all,” there are a limited number of sizes that fit. All judges were lawyers first. Lawyers are part of the establishment; they have a fairly establishment view of what is good or bad for children. Fathers must fit into one of the limited sizes if they are to have any real chance for their children.

It is your job and your lawyer’s job to understand what judges are looking for and what sort of characteristics a father should have to be able to successfully keep himself meaningfully in the life of his children. To the extent that a father is lacking one or more important characteristic as a parent, or even has some negative aspects, the lawyer’s ( and a therapist’s) job is to remedy that situation as much as possible before going into court.

A typical example is this: mothers frequently try and convince the court that the father has a problem with anger and can’t control his emotions, and that it can spill out in the presence of the children. While good judges won’t necessarily believe it merely because the mother swears to it, they always have to consider the possibility that it might be true. A simple way around the entire debate is for the father to enter into courses on anger management. If the father in fact has difficulty controlling  his frustration at the loss of his marriage and prospective loss of his children ( or is one of those rarer people who has a serious anger problem generally) then anger management is good for him personally. And if the mother’s accusations are groundless, it is easier, quicker and cheaper to take an anger management course than to try and convince a judge through possible multiple court applications that the allegation wasn’t true in the first place.

The end result is that the judge feels that the anger, whether it was a problem or not, has been properly dealt with. He/she can then get on with the job of determining the short term future of the children.

There is a growing body of empirical evidence that women express anger against their spouses just as frequently, if not more so, than men do against women. They just do it differently.  But there is no data on how extremely  disproportionately courts order fathers into anger management than they do mothers. In all my many years as a divorce lawyer, I’ve never known of a case where a mother has been directed to take an anger management course. Despite the growing scientific evidence to the contrary, it remains a social/cultural artifact for society and judges to still think of men as inherently more brutal and dishonest than women. It is always an uphill struggle for fathers in court.

How do judges see things from their elevated bench at the head of the court room?

What a Judge Won’t Want to See or Hear About You

  • A judge doesn’t want to hear that you badmouth the mother, certainly not in the presence of the children.

    Children will always suffer when their parents separate. How little or how much they suffer depends greatly upon the parents. Regardless as to what has been said or not said, what they have been told or not told, children of all ages can quickly pick up on what is happening. Many blame themselves in ways they can’t articulate. The universal solution children seek is to have mommy and daddy get back together in a loving relationship. The loss of that relationship – or it never having existed in the first place – is the seed of emotional upset that, if watered with negative comments by one or both parents against the other, can grow into full-blown psychological problems. Intelligent and nurturing parents will work together to lesson these stresses in their children. A controlling, vindictive or personality-disordered parent will take advantage of these stresses, making them worse in the process. The children’s emotional problems are then seen by the controlling parent as only being capable of being fixed by removing the other parent even further from the children’s lives.

    In many cases, one parent may clearly be the unfit parent and instigator of many problems. In cases that don’t resolve at either earlier levels or mediation and end up in court, very often a parent has placed the children in the middle. This may be conscious or unconscious. (It is an interesting argument as to which of these possibilities is the blacker mark against that parent: knowingly doing what one shouldn’t, but presumably being capable of stopping it, or not being able to stop it because it is unconscious and part of an underlying personality problem.) But the place for that is in the courts, or with the psychologist preparing a custody evaluation. It is never right to bring the children into that discussion – never, with one exception.

    One of the most difficult challenges facing a parent is how to talk to children who are being alienated against them by the other parent. Alienation typically develops into situations where the children are being directly told bad things or falsehoods about the target parent and often the target parent’s family. Historically alienators were nearly always mothers. Over the past several years, an increasing number of fathers have become alienators and mothers are finding themselves the target parents. There are two opposing views as to what to do and how to handle this when it becomes known to the target parent.

    One school of psychological thought holds that the father should just ignore it. The rational being that if the father engages in trying to dispute and correct it with the child, the child will become inappropriately involved. It won’t matter that the mother has  blatantly done exactly that to the child. These psychologists naïvely tell the father just to cool it, don’t respond, give the mother space and time. Hopefully whatever unresolved childhood issues she has will resolve without therapy and she will  miraculously grow out of  malicious ways.

    This school I call the “let’s hope” school. Family law lawyers, without their own personal experience with serious parental alienators, are susceptible to being influenced by this school of thought

    The other school – what I call the “realism” school – was best represented by renowned child psychiatrist Dr. Richard Gardner, who died in 2003. The preponderance of expert opinion has shifted to this school, yet it is just trickling down to the legal and judicial profession. Check my website under Parental Alienation for resources on this topic.

    The realism school says that target parents – more often fathers – have to deal with it and can’t just let it slide. Alienators hardly ever just suddenly see the light of day and stop. The father must talk to his children. The trick is in how to do it. It must be in an honest, factually, and psychologically appropriate way. There are good books that provide this guidance.

    No matter how appropriately a father corrects the child’s false views, the mother and her lawyer can be guaranteed to complain to the court with exaggerated gusto. Expect it. This is one fight you can’t avoid. Trying to avoid it runs the real risk that the mother will succeed in her goal and permanently fracture the bond between you and your children. If you find yourself a target parent you should hire yourself a top-notch advocate, as there is nothing as dangerous as parental alienation. The exception is false allegations of sexual abuse of a daughter and this is a damned hard fight to win.

    Remember: parental alienation is child abuse, pure and simple.

A Court Room is Not the Place to Prove Your Moral Superiority

If one or both parents fail to resolve their case and you end up in a trial before a judge, they nearly always have at least two agendas: one is to win for the children fair time with both parents or deny the children fair time with the other parent. The second agenda item is to finally have a stage upon which their story of unjust and unethical and mean treatment by the other spouse can finally be told.  Each hopes that a judge will side with them and against the other parent. They expect the judge to condemn the other parent in words so strong and clear that their own vindication will result. Parents with strong religious convictions typically have these expectations. Such expectations are misplaced and dangerous. While it may have been the case many decades ago, family law is no longer a morality play. A courtroom is not the place to seek redemption for sins committed by you in response to the wrongs done by her to you.

Judges want to fix the problem, not the blame.

Judges want to hear only what will help them determine the short-term future of the children. They know the parents have separated. They could care less why or how the parents separated. And they certainly don’t want to hear that one or both parents is still carrying such a grudge that the separation battle still exists. The parent who tries to drag their personal fight into the court room will be less appreciated, particularly if it is the father. Often the family members on both sides take the witness stand and vent negativity toward the other family. Again, that is not what the court wants to hear. Don’t do it!

It is not good enough that you artificially take this advice, then begrudgingly get up on the witness stand and fake it. If your ex’s lawyer is a good cross-examiner it will be easy for them to get your simmering negativity  into the open.  You are merely a pawn in the courtroom where that lawyer makes his or her living. It is very easy for him or her to expose your animosities if you have not sincerely overcome them. The message is clear: do whatever it takes to come to grips with your issues and do whatever work is required to overcome those animosities. Then you can be totally honest and unimpeachable on the witness stand and your concern will be seen to be only for the future and not the past.

This book will help you find this path.

Judges don’t want to see or hear of fathers that:
  • Talk to their children about the legal issues involved in the separation or lay blame on the mother.

    This is another situation requiring fathers to be very careful with language. Your child knows very well something major is happening but can’t figure out why they have less time with you. Even if you believe mom is the reason, you must never say so. Never blame the mother. At times this seems impossible, particularly if your child is full of questions, and can easily tell that you believe you are feeding them false information.  Do your best to get around or avoid the subject. To the question “Why can’t I stay for one more night,” you could reply, “Your mother and I are working on it.”

    Talk to your child about how you can’t really talk to them frankly about it. Let them know you understand their confusion and hurt. Comfort them with the assurance things will improve.

    There is one exception.

    Again, if you are the target parent of  parental alienation, you may have to be more forthright. Read the recommended books and talk with a counselor experienced with dealing with parental alienation.

Judges don’t want to see or hear of fathers that:
  • Take up with another woman (or women) to the knowledge of the children too soon after the separation.

    There is no better anti-depressant for a recently separated man than a new woman. For a recently separated father there is a need for substitute love and affection and it can be over powering. Resist. There are a couple of reasons for this. Firstly, this type of documented “re-bounding” can quickly become addictive and used as a false and momentary high to smother pain. Pain must be fully felt and acknowledged to ever be overcome. Covering it with alcohol, work, or women is futile. Conventional medical wisdom says that the loss of a relationship is like a death and there needs to be a period of mourning, typically lasting about two years. There is nothing you can do about it. Accept it. Live it. Use the moment to get a better understanding of yourself, your past, your present and how you would like to see your future.

    The second reason is more important because it affects your children. Children of separated parents always feel responsibility for the break-up. They also fear the loss of love from one or both parents. If you are seen by your child too suddenly with another woman it will serve to verify in your child’s mind that your love is going elsewhere and they may feel abandoned.

    This is not to say that after an appropriate amount of time, when the children have stabilized in their new life, you can’t start dating. But even then the children must remain your first priority, and new girlfriends be made to understand. If she doesn’t understand this, or is negative to the children’s mother, or thinks she is a replacement mother – stop seeing her. Fast. There are a lot of fine women looking for the kind of man you are capable of being. There were probably some strong signals from the mother of your children back when you were dating or after you got married that should have alerted you to problems ahead. Most choose to ignore those signals. Our emotions drown out any suspicions of the mind. Don’t make that same mistake twice. No matter how fantastic she may be in every other department, if your current girlfriend isn’t right for your kids, let her go.

    It is extremely important  that your children not even know about the existence of a new girlfriend until you have reached the point where you both see a continuing and serious relationship.  Then the children can be gradually brought into the picture.

    It goes without  saying that there should be no overnight stay at your home that the children can learn about until you feel there is a solid foundation for a continuing relationship.

    Be prepared for the ex to escalate the conflict when she hears you have another woman in your life and the children’s. It is amazing how frequently in cases  reaching lawyers’ desks the mothers react this way. This is a third reason to not have a new relationship until  divorce is behind you.

    It is important to prepare your children for a new love in your life. Talk to them. When I was young my parents divorced. A few years later my father took my sister and me aside and explained the kind of love he had for the woman he intended to marry. She was someone we had come to know and like. He told us his love for her had grown new in his heart. But it was not part of the love he had for us. Different part of the heart. The love he had for us was all still there. I’ll never forget the day.

Judges don’t want to see or hear of fathers that:
  • Withhold child support because of something mother has or hasn’t done.

    When the mother does something she clearly shouldn’t, or violates an existing court order, a frequent and initially natural knee-jerk response by the father is retaliation. This thinking will always lead to trouble. One of the goals of this book is to teach you how to deal with such antics by the mother. The first task is to recognize a knee-jerk reaction for what it is. Next, practise reacting to it in a way that allows you to vent your negative emotion without it becoming part of the dispute. Ultimately, the goal is to not react at all to her continuing poor behavior.

    A common knee-jerk response is to hold back financial payments. Refusing to pay child support, for instance. This is completely counter-productive. No matter how bizarre the behavior of the mother, there is never an excuse to hold back child support – court-ordered or not. If you think the issue is big enough to warrant a change in the child support order, talk to your lawyer.

Judges do want to hear that the father:
  • Will go the extra mile.

    There is a large basket of ideas on how to accomplish “extra effort.” Obviously restraint by you in circumstances that are trying is one. Doing things for your children – and for the mother – above and beyond what is ordered or expected is also going the extra mile. Keeping the mother on medical benefits with your employer when you don’t have to is going the extra mile. As is taking an anger management course voluntarily when you aren’t angry, but she says you are.

  • Has found an apartment or house in the same school catchment area as the mother to be nearer his children.
  • Has taken or is taking post-separation parenting courses.

    You may know more about what it takes to be a good parent than the mother but you should still take any available courses. Some jurisdictions mandate it. Take as many as you can. Load up on good books and read them.

  • Has taken or will take communication counseling with his ex.

    Many mothers claim they can’t communicate with ex-spouses. In the past, this was a surefire way of getting awarded sole custody. It is no longer that easy. But too many mothers still adopt this tactic. Some refuse to talk or email or fax. That actually is a failure to communicate – their failure. More often than not what is meant when a mother tells a court or swears in an affidavit that the parties can’t communicate is that they fail to agree. Separated couples can communicate through pages of faxes and hundreds of emails on many subjects. Simple failure to be able to agree on the subject is not a failure to communicate.

  • Has gotten over the “blame” issues.

    Remember: fix the problem, not the blame.

    This book is about getting beyond destructive emotional issues. If and when you end up in court on the witness stand, you want the judge to see that you are no longer mired in the past, still throwing the same old mud at the other side. Leave it to the other side to come into court with large rearview mirrors on each shoulder. You focus on the children’s future. You will get the judge’s positive attention.

  • Has a reasoned and workable parenting plan and schedule for how he will parent and maintain the children, including details of the home, food, sleep, etc. A letter from your employer supporting and approving the father’s parenting plan is valuable. Offer to let the mother come on over and check your children’s living arrangements. When you are looking to find a place for yourself and your children, it is  great to let the kids play a big role in picking out your home including their rooms, the color of paint for their rooms etc. This gives them a real sense of belonging and empowerment.

    If you are lucky enough to have a job with flexible hours, your children will benefit from more time with you. The same if you are self-employed. The judge needs hard evidence that this is the case, so present a parenting plan which demonstrates exactly how you will parent when the children are with you.Keep your ex informed of the children’s schedules for baths, sleep and meals, and seek her schedules in return. Try and make them as similar as possible.

  • Is totally familiar with the child’s school, teacher and principal and any health care professionals.

    It is not uncommon in an intact marriage for one parent to do the majority, if not all, the arrangements for doctor’s and dentist’s appointments. This is part of the agreed-upon division of responsibility within the marriage. Often only one parent stays in touch with the school teachers and attends meetings with teachers.

    If you had little to do with health care providers or teachers during the marriage it is important you go out of your way to catch up on this. If there are after-school coaches, get on a first-name basis with them also. You can expect to receive sarcastic comments from the mother to the effect that “you never were concerned or involved with these sorts of child-related matters in the past” and that your sudden interest is suspect. Or that you are trying to win dad of the year award or some such nonsense. That’s par for the course with some people. Most judges don’t buy this attitude. When hearing such an argument from a disgruntled mother a judge may reply, “Well, aren’t you glad that he is now so concerned? ”

  • Fosters the children’s connections with their mother, grandparents and extended family on both sides equitably.

    In our culture when we talk about the love and nurture a child requires for healthy emotional development, we envisage a biological mother and father. Other cultures more easily recognize children’s need for love and nurture, and it matters less who they get it from as long as they get it. The fortunate children in our society are those who have involved extended family members. This is good for all children. During the marriage break-up these aunts, uncles and grandparents become particularly important. It is obviously very important for both parents to put in the extra effort to keep these relationships active for the children. A key warning sign that your ex is attempting to alienate the children against you is if she denies a meaningful relationship between your children and your family. Your family members should be encouraged to maintain contact with you ex and her family. If they don’t see much of your children on your limited time they should attempt to get their own independent time with the children.

  • Doesn’t count every minute to make his case for time with the children.

    Judges look to see which parent is less hung up on the strict terms of an access order and will give the other parent some special time without demanding make-up time. Naturally, if you are consistently losing important time with your children and it becomes a regular event. This is a different story. But for special occasions, if the children will enjoy doing what the mother is requesting special time for, go for it. And if she thinks she has pulled one over on you by getting extra time without having to give you make up time, so what? Leave her with that thought. Your focus should be whether the children have a good time.

    Many of my former clients have become personal friends. One recently had a break-through experience with his ex who, five years after the divorce, remains totally obsessed with continuing the “fight.”  She has an unquenchable need to be seen as the better parent. Everything my friend does with their child, she has to do better. It is as if she sees parenting as a contest. She always has to be right and always denies him what he might want.  One long weekend, there was a choice about whether the child was to be parented by the mother on a Thursday or a Friday. My friend wanted  Friday as his parenting time. So he let it slip ever so subtly that if it was no real matter to her, he would prefer the Thursday. Quick as a mousetrap snaps, she triumphantly claimed the Thursday for herself.  My client was delighted because he had long ago detached from her and it didn’t bother him at all that she might think she was winning every hand.

    It is my experience that in heavily contested custody disputes, where one or both parents grill the children or badmouth the other parent, the children just want to escape the situation. If one parent grills them upon the return from the other parent, and the other parent doesn’t, and one parent badmouths the other parent but the other parent doesn’t, the child will slowly gravitate toward the proper parent. This is because they feel they are in a demilitarized zone with the proper parent. They will grow to appreciate the parent who leaves them in peace.

    There are subtle distinctions between proper and improper inquiries to make of a child upon returning from the their other home. Instead of a question, “What did you do with your mother?” – which might put the child on the spot, make a statement instead such as, “I hope you had a good time with your mom. What would you like to do now?”

    Keep a picture of their mother in their room at your house. Regardless of how you may personally feel about the woman, make positive comments about her to the children. Make sure the children know that you know how important she is to them.

That is how judges view their job.

One of the most difficult things for a father to do is abide by the above “rules,” despite the fact that the mother may be breaking many or all of them. It often seems an uphill, unfair, fight. To improve your chance for success you have to keep your eyes tight on the ball and not be distracted by the rules being broken by the other side or the untruths from the sidelines.

Take advantage of the time when the children are with their mother to rededicate yourself, to refocus, plan and just generally learn the hard task of being happy and content in their absence. Update your journal where you keep a complete record of everything involving the children. (Caution: because your journal may be produced to the other side or for court, bear in mind that everything you write may be seen by a judge. Apply the general rules being discussed here in your journal.)  Work on developing your new life. Reconnect with the friends who may have been left by the wayside of your separation. Make new friends, particularly single dads and moms. It is the time that you spend away from your children that can help makes you a better person and a better father.

If you have a court trial looming in your near future, your lawyer may want to be able to call as witnesses parents who see you with your kids. You should be consciously seeking out friendships with such neighbours, especially mothers.

It is important that while the children are with their mother, you make the time to touch base with the teachers and administrators at school. And their extra-curricular activities coaches. If your kids have any medical problems, take this time on a regular basis to meet with these health care providers. This is important for two reasons: it is important you know each other and can communicate well. This is good for your children. Secondly, if the mother is inclined to create difficulties, such as spreading falsehoods, etc., these people need to know your sincerity. You never know when you may find yourself back in court defending an allegation as benign as “he doesn’t care about their schooling” or as damning “he is abusive to the child.” It goes without saying that you have to be very calm and diplomatic at all times with these third parties.

Make sure the school and doctors have copies of the recent court orders and insist you be regularly provided with the information the law says you are entitled to. If the mother has falsely raised issues with the police in the past, inform the local detachment where you live and how they can get a hold of you if they need to. Give the police copies of any court orders. Let the mother know you have done this. It might give her pause before acting inappropriately again.

All parents know the day will come when children leave the nest and strike out on their own. Being a non-custodial father gives you an early chance to understand how it will feel when that day comes. And strangely enough, it will help your children do better when this time arrives. Work with them in understanding and accepting this new parenting reality.

Today’s technology will permit you to set up email accounts and video hook-ups with your children at their mother’s home. Find the children interesting and safe places to visit on the Internet; play games and interact with them with them. Let the kids be involved in planning what they will do when they see you next. If the mother resists, get a lawyer to help you obtain a court to permit you to organize this.

As children get older, they benefit from increasing time away from both parents. It is obviously very hard for an “every other weekend” father to volunteer up valuable time for the kids to be away from him with other kids, or at sporting events.  Do your best.

One of the most common abuses of the system that too many mothers pull is setting the kids up in so many after-school activities that there is less and less time for the father. The only time the father sees the kids is driving them to and from pre-planned events and putting them to bed four times a month. The valid idea that children need after-school and weekend activities is all too easily abused by a mother who schedules these events on the father’s parenting time. If you want to do something to correct this abuse, do it sooner rather than later. Once such a restrictive schedule is in place it is difficult to change.

Finally, some comment on the futility and counterproductive effort of trying to reason with your ex via faxes or emails. Like the cancer specialist who only sees very sick people, trial lawyers in divorce court see only the worst marriage breakdowns. As a lawyer who represents primarily, but not exclusively, men, I find the mothers on the opposite side of these highly conflicted files nearly always have unresolved childhood issues. Issues that cause them to need their children to be emotional crutches for their unmet needs. Issues that morph into weapons used against the father. These unmet needs propel some mothers to trial, failing at all attempts at negotiation or mediation. They will never – can never ­– voluntarily give up control.  Many of these women were abused or abandoned in their childhood. Others had parents that exerted a very unhealthy control over their lives. Frequently they suffer from one or more personality disorders. In other words, they are ill and need to be seen and treated with compassion.

There is something about men, and this has been written about extensively throughout literature, that makes us blind to these sides to women with whom we fall in love. When we start to see their inner side, rather than retreat, we convince ourselves we are knights on a white horse that can help her and solve her problems. Even where no parent, friend or other male partner has been able to provide meaningful help. How quickly we can become co-dependent with such needy women. And some of us, even after the marriage is clearly over, continue to play this role – hoping that for the good of the children, they will see the light, mend their ways, and everyone’s problems will all be over.

Unfortunately this is wishful thinking.

Too many of my clients show me a history of faxes or emails full of these pleadings for rationality, fairness and common sense. I have a theory that a great many of the mothers I  deal with on the other sides of my files  get a tragic satisfaction  from  receiving these kinds of communications from the fathers of their children. Almost as if these pleas for understanding simply add more fuel to her determination to wage  war. She gains needed satisfaction in knowing that she still has the power to make him come pleading.  This constant engagement in the fight soon becomes her only self-definition. “I’m the person whose job it is to save my children from him!” They become obsessed and dedicated to conflict as a life’s work.

The sooner you learn to restrict your communications to  statement of simple facts, the sooner you will emotionally detach from the mother of your children. Detaching from her is the single most important first step in your own recovery. And as part of the grieving process  can take up to two years. So don’t be surprised at how hard it is to accomplish You can’t pass on if you hold on. It certainly would be great if she went into serious psychotherapy and got better, for her sake and your children’s sake. But there is nothing you can do now to make that happen. Having said that, if she so clearly has psychopathology that  could be proven in court –always hard to do unless child services has had to step in – then maybe the court might take notice. Otherwise, all you can do is help you children as best you can. They need you totally focused on their needs, not their mother’s.

Food for thought.