In a typical conservatorship (custody) dispute, the issues are predictable, but volatile. Most people believe that children will usually end up with their mothers, and even judges and attorneys can be biased by what they perceive as normal. These factors apply especially to younger children. While it is true after divorce that the majority of children under 10 reside with their mother, it is also true that the majority of men who seek custody of their children end up obtaining custody. The second fact or opinion comes as a surprise to many persons, until they consider that many fathers will not undertake an expensive and emotionally draining battle over their children, unless the facts are such that obtaining custody is reasonably possible. The reader should note that all of the reported facts and opinions expressed in this paper are the opinion of the author, but the reader should also note that the author of this paper has handled well in excess of 600 family law matters in a practice that spans two decades. This short essay is designed to be a discussion of custody battles in a manner that will hopefully aide persons considering the possibility of a dispute over custody or conservatorship.
Point One: War or Diplomacy
Recently, at a class and lecture I gave to a group of attorneys considering doing some low cost work for financially disadvantaged clients, I spoke immediately after an attorney I know well from cases where he and I have assisted clients on opposite sides of custody disputes. I respect the opposing attorneys work and consider him a skilled and worthy adversary. In his part of the lecture, this attorney made a considerable point out of winning as a goal in and of itself. One of his comments was “try to tell your client who just lost custody–that it was not a loss”. Clearly his point was that he believed winning was the main thing to consider. When my turn came to address the young lawyers present, I respectfully disagreed with the concept.
In my opinion, there are no “winners” in a custody battle. Such battles are, rather, a necessary evil which occurs when both parents of children of divorce believe, often very strongly, that the children will be forever damaged if the other parent raises the children. Such a dispute may be created because one spouse is controlling and even abusive, while the other is passive, supportive, victimized or simply can not tolerate conflict. Such a dispute can be because of the truth, and some may be in spite of the truth. Spinning the concept of truth one further step, I would say that the truth of the matter in many such instances, is that though both parents may believe the children will suffer irreparable harm if the other parent provides the living environment, often the same person will acknowledge that if they die or for some reason can not provide the primary home, that the other parent is the next best choice. Unfortunately, the medium of exchange in custody is often open warfare between two flawed but ordinary and capable parents. In those instances WARFARE AND WINNING AT ALL COSTS IS SIMPLY NOT A WINNING STRATEGY AND NOT A STRATEGY THAT WILL HEAL OR AIDE A DIVORCING FAMILY. In the opinion of the author, in the vast majority of such cases my trial advocacy will insure a victory, but the prize I hand to my client will be a family damaged so badly by the struggle that no amount of counseling, able parenting, or even time will ever repair the damage done. My simple advice in such a situation is to seek a diplomatic solution such as mediation rather than litigation. Even if an able parent ends up with less access to insure the survival of the children’s mental and emotional health, the result or cost is less dear than the winning of a dead family. Anyone who believes that the last phrase is overstated has not been in the situation. The fact is that we who are family law attorneys preside over the death of families. It is unfortunately easy to kill the emotional health of the parties and the children in the process. My solution is not an easy one, but it includes the idea that both sides of the issue must make concessions which are incredibly difficult and involve real sacrifice for the sake of children. So when do I involve myself in such disputes? Simply put, when the client can not avoid the process, and it is necessary in spite of the damage.
Point Two: Going Against the Grain
We live in a competitive society, and we train lawyers to engage in win/lose situations. Often those same lawyers have never seen a different side of life than litigation. One excellent trial lawyer most famous comment is “welcome to the NFL”. Again, I must respectfully disagree. Clients should choose lawyers that care about that persons family and situation more than whether the LAWYER wins or loses. The plain and simple fact is that the Lawyer never wins or loses. It is the client and the family that win. And it is the client and the family that pays the price. The imaginary lawyer that wins every case, has a client that loses half the time. Some lawyers rape, pillage, and plunder their way to victory and then hand the client damaged goods. The grain of the wood is such that when and if you join the 60% of married persons who eventually divorce, you should search out a craftsman that will artfully and skillfully create a solid foundation, careful finish carpentry, quality appliances, and thoughtful planning. The result of such an enterprise is the reconstruction of a family. So my final thrust is this. When you seek to reconstruct your family, do you want a warrior? Or do you want a builder? In the final analysis, it is, or at least should be, the client who pays the cost, and it is the client who can select the materials, choose the blueprint, and adopt into their family a family law practitioner who understands the structure of families. That, simply put, is why my mission statement on my business cards says …if your family situation gets really bad…call an attorney who cares about families. You may not be in a position to choose me over another attorney, but you can print and show them this article, and tell them what you want them to be, and what you want them to do. One final word is that it may be impossible for any attorney to guarantee that he or she will succeed every day and in every situation to maintain the “high ground”, but they certainly should be committed to seeking the higher ground.