Skip to main content
Blog Post

Custody Battle: 10 Things That Can Sabotage Your Case

The divorce process is usually very difficult and trying for anyone experiencing it. It is especially difficult if your divorce involves a child custody battle.

These difficult times often cause a person to act or react irrationally and in ways that detrimentally affect his or her case.

You should be aware prior to court proceedings that the court will evaluate your behavior in its entirety throughout the proceedings and always behave accordingly.

Below are some of the factors judges consider when making a child custody determination along with the 10 most common mistakes made by men during custody battles. This should provide a checklist of what not to du during a custody battle.

Best Interest Of The Child Standard

To determine how not to behave during your custody battle, it is helpful to review the criteria used by the judge (“court”) to determine appropriate placement of the children. The court is charged with the responsibility of evaluating the situation to determine what placement and parenting time is in the child’s best interest.

Some of the considerations include but are not limited to:

a) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relevant thereto;

b) the desires of the parents as to residence-agreements reached by the parents and submitted to the court are usually presumed to be in the child’s best interest;

c) the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;

d) the child’s adjustment to the his or her home, school, and community;

e) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent;

f) any evidence or allegation of spousal abuse;

g) any evidence or allegation of child abuse on this or any other child;

h) whether either parent is required to register as a sex offender;

i) whether a parent is residing with a person who is required to register as a sex offender;

j) whether a parent has been convicted of abuse of a child;

k) whether a parent is residing with a person who has been convicted of abuse of a child

Watch Your Behavior

Whether you are fighting to be the primary residential parent or for weekend visits with your children, the evaluation process by the court will encompass all of your behavior.

In particular, expect your children’s mother to point out all negative behavior during your custody battle. If you behave as though the judge were standing next to you each time you interact with the children or their mother, you will certainly avoid the pitfalls that will reduce your custody chances.

In reviewing the following list of what not to do during a custody battle, keep in mind the fact that children are wonderful mimics. You should expect your children to tell their mother everything you tell them. Knowing this, you should be aware of things said to the children or around the children that relate to their mother.

Conversations As Evidence

You should also anticipate your children’s mother hiding a tape recorder on or near her person when you interact. Recorded telephone conversations are common during divorce proceedings. In such cases, words spoken out of anger and frustration quickly become the rope that hangs the speaker.

Technically, such recordings should not be permissible, but some courts will hear them for the purpose of evaluating a parent’s intentions and mental state. Do not be caught on tape saying things you would not say with the judge present.

It should go without saying that any email or text message correspondence can be easily handed to the judge for review so fits within the same admonition. The admission of such written lapses in judgment is much easier since you clearly knew it was documented at the time.

This list is not exhaustive but includes some of the most common mistakes made by men during child custody battles. As an attorney, making sure clients avoid these missteps is vital in figuring out how to win child custody for fathers. It is often an uphill climb due to the court’s bias against dads, but avoiding self-inflicted mistakes is crucial.

1. Alienation of affection

Children thrive best in a two-parent household whenever possible. If a parent makes it a habit to put down the other parent, the children feel torn and forced to choose one parent over the other.

This is very frustrating and confusing for the children. Judges are quite familiar with the damage this behavior can cause and are extremely intolerant when this behavior occurs.

The two most common forms of alienation of affection that get dads into trouble are: criticizing mom around the kids and keeping the children from mom in any way. This behavior can lead to parental alienation, which can have very harmful effects on children.

On the other hand, when the mother keeps the child from the father, parental alienation can occur, and that has serious ramifications.

2. Yell at wife and/or children

As covered above, assume all conversations are being recorded. When you yell at your wife or your children it often gives the appearance that you are being abusive or bullying them.

Men are in a distinct position in this society where they are presumed to be dominating and more powerful than women (and of course children). That being the case, women are in a position to claim they are afraid of their husband or the father of their children. Whether their fear is authentic or not, the court takes such allegations very seriously.

Do not give her any ammunition for the court. A tape recording of a telephone conversation or an in-person argument will appear to the court to demonstrate you losing control and possibly becoming dangerous.

No matter how hard it becomes, fight the urge to yell at your wife or your children. If that becomes a general rule you will not need to worry about such behavior impeding you in court.

3. Have a physical confrontation with wife and/or children

Making physical contact with another person in a harmful or offensive manner is a crime. Some states call that crime “battery” others refer to it as “assault.” Whatever the term, it is criminal.

You cannot very well care for your children from jail. No matter how upset you become during these proceedings, you must not make physical contact with your wife or children when you are angry.

If this is something that has occurred in the past, you need to acknowledge that you are susceptible to such behavior and leave the area when you become upset. It is much better to walk away from an argument then to be in a position where you have little or no time with your children or such time is supervised by a stranger.

There are many women who are abusive toward their husbands. It is no less a crime for a woman to be physically abusive toward you or your children. If you feel such a situation is going to occur, you should attempt to leave the area. If you feel the children are in danger, you obviously would not leave them alone with her at that time.

If she hits, pushes, punches, or otherwise makes contact with you in an offensive way while she is angry, you need to call the police. Such behavior should be reported. The police will treat her the same way they would have treated you and she will go to jail. Legislation related to domestic violence has increased over the years and law enforcement no longer treats it as a family dispute.

Judges take these matters very seriously as well because physical violence between parents is very confusing and upsetting to children. Studies have shown that children who witness domestic violence from an early age suffer developmental challenges as well as life-long emotional problems.

4. Move in with a significant other

Divorce is a difficult time for children. It is hard for them to grasp the idea that their parents’ love for each other can simply end. Things are even more difficult when it becomes clear that the love transferred to a person that is not the child’s mother.

Courts are reluctant to expose children to such truths. Judges do not appreciate children being exposed to significant others while a divorce is proceeding.

Moreover, children are unlikely to be comfortable around the new woman and may refuse to stay overnight or even visit your home if she is there. That will certainly prevent you from having a healthy relationship with your children.

The time will come when you are ready to start dating again after divorce, but until the divorce is final – and even for a while after – do not expose the children to a new woman.

5. Criticize mother to friends, family, case worker, or guardian ad litem

Keep in mind that your friends now are likely friends that were shared by both parties at one time. You should expect friends to still talk to both parties. Assume comments you make will get back to your wife.

If a case worker or guardian ad litem is assigned to your case, be aware that they are looking intently for signs of alienation of affection. Do not let them see it coming from you. Focus on the good relationship you have with your children and how well you communicate. Do not waste time criticizing their mother. That is easily misinterpreted as alienation of affection.

Caveat: if the children’s mother is involved in illegal drug use or otherwise engaging in behavior that is dangerous to the children, this should be brought to the attention of the case worker or guardian ad litem and closely investigated. Be certain you have some form of unbiased evidence before making such allegations or you again run into the problem of appearing to be trying to alienate the children from their mother.

6. Fail to pay child support

If the court enters an order of support and you choose to ignore it, that is considered contempt of court. If the judge makes a finding that you are in contempt, you may be fined or even jailed for such behavior.

As a general rule, judges feel that paying child support is more important then any other financial obligations. Failure to pay child support appears to the court as a lack of respect for the court and lack of concern for your children.

Obviously it costs money to raise children. Child support amounts are set using several variables to determine what it will take for the child to continue to survive as the child had prior to the breakup. You may hire an experienced men’s divorce attorney to fight the support amounts ordered if you have good cause, but until the court orders otherwise, you are responsible for paying child support as ordered.

If ordered to pay your wife directly, always do this by check and save the receipts from the bank showing these checks cleared. It is critical that you can trace your child support payments in case your wife later denies receiving cash payments.

7. Damage property belonging to mom or her family

Property damage is often a sign of aggression that is building up in a person. Not only will the court make you pay to replace any damaged property, the court may also see you as a threat to your children due to such behavior.

8. Deny telephone contact with mom when the children are with you

This relates back to the earlier topic on alienation of affection but may not always be as obvious. Even if you have limited time with a child such as a couple hours a week, you must allow that child to call mom when requested.

In addition, if she calls to check on the child, you need to be polite and allow her to talk to the child unless that would cause disruption or the child is sleeping. Keep in mind that such calls from mom must be reasonable.

Children should feel free to communicate with either parent at any time. If your wife denies you contact with your children when you call, be sure to keep a journal of the dates and times so the court may address it if it becomes a problem. You should expect your wife is keeping a similar journal.

9. Take kids out of the area without warning mom in advance

If you have a family vacation or reunion planned outside the metropolitan area in which you live, be sure that you have notified their mother before you take the children. Many parents reach agreement about vacation times with the children so that each parent has an opportunity to spend a week or two out of town with the kids.

If you leave the area without notifying your wife, it may appear you are attempting to kidnap the children. That could result in her obtaining emergency orders restricting or terminating your parenting time or custody. If at all possible, try to notify her in writing two weeks in advance so there will be no confusion when the time comes.

10. Remove children from school or daycare without notice to mom

Temporary orders will usually designate parenting time but rarely includes the time when the child is at school or in daycare. If the school allows you to visit the children over lunch or other times, you should freely do so as long as it is not a distraction.

You should never remove the children from school or daycare if you are not the primary custodian. Even if you are the primary custodian, the children should remain in school or daycare unless you have a good reason to remove them.

Expect your wife to bring the judge a printout from the school that will show tardies and absences while the children are in your care. If you are not primary custodian, removal from school or daycare may appear that you are kidnapping the children and could result in serious restriction or full termination of your parenting time.

As experienced divorce litigators, we know how to win child custody for fathers, but there are never any guarantees. We also know what not to do during a custody battle and avoiding the above mistakes can at least keep you in the fight.

One of the most important steps you can take to help yourself in any child custody dispute is hiring a divorce lawyer to help with your case. Family law attorneys who focus on men’s divorce and fathers’ rights, such as the lawyers of Cordell & Cordell, have a unique understanding of the challenges dads face throughout the process and can help position you for success in your child custody battle.

Frank Murphy

Edited By Frank Murphy

Chief Compliance Officer
Frank Murphy

Frank Murphy is the Chief Compliance Officer and an Executive Partner at Cordell & Cordell. His responsibilities include oversight of the Firm’s compliance with Legal and Ethical obligations as well as contributing to the day-to-day operations of the Firm as an Executive Partner.

father with kids on couch

A Partner for Dads

We have 100+ offices serving 35 states.
Connect with a local Cordell & Cordell attorney for accurate, state-specific legal advice on divorce, custody, and spousal support issues.
cordell icon white

Why Hire
Cordell & Cordell?

Men hire Cordell & Cordell because the firm’s entire focus is on aggressively championing the rights of men and fathers through divorce. Our attorneys understand how the deck is often stacked against guys in family law and are committed to leveling the playing field by providing the legal guidance and resources needed to give them a fair chance at success.