First, the purpose here is not to encourage a custody dispute. Ever since “Kramer v. Kramer,” recently reinforced by “Marriage Story,” it is embedded in our collective consciousness that custody litigation is painful, ugly and destructive.
Start down that path and before long the two parents are standing in court, pointing fingers at each other and making lists of each other’s “failures” as a parent.
A custody dispute is often a race to the bottom in which no one truly wins and in which everyone – including the children – suffer. As matrimonial lawyers, we advise our clients to explore and exhaust every possible alternative to litigation to resolve custody.
Yet, sadly, sometimes custody litigation is simply unavoidable, whether because of allegations of parental unfitness, substance abuse or severe animosity between the parents. In those situations, it is important to know how to best position yourself to achieve the desired outcome. The list of “do’s and don’t’s” below will help you avoid the typical pitfalls of custody litigation and lighten its heavy toll.
Tips to Position Yourself in a Custody Dispute
1. Change Your Passwords
Change the passwords on all of your electronic devices, including your home computer, phone, and any other devices your spouse may have access to. Also change the passwords for all of your email and social media accounts. Doing it ASAP will save you a lot of problems down the road.
2. Separate Your Accounts
Make sure you and your spouse are not sharing a phone service account, an iCloud account, or similar e-storage account. If you do, immediately separate yourself. Otherwise, your text messages or other communications may be showing up on your spouse’s devices.
3. Get a Therapist
All litigation is tough, and custody litigation is toughest. You will need someone to talk to once you start reading all of the terrible things about yourself in your spouse’s court filings. There is a limit to how much you should confide in your friends and relatives. Not only is it going to put a strain on your relationships, but you may need your friends and/or relatives to be your collateral court witnesses down the line.
4. Stop Posting on Social Media
Stop posting on social media and make your accounts “private.” It is hard to overstate the usefulness for litigation of the “goodies” spouses find about each other on social media. From new relationships, to things they should or should not have done with their children, to money spent on lavish trips or extravagant gifts. The list goes on and on. Do yourself a favor and let your Facebook identity go idle for a while.
5. Don’t Badmouth the Other Parent to or in Front of Your Children
Not only will you get yourself in trouble with the judge, but it is very damaging for your children to hear all of the bad things you have to say about their mother / father. Vent to your therapist or your friends; not to your children.
6. Start a Daily Journal of Your Involvement With Your Children
What a parent did or did not do during the marriage is often a disputed issue. Having a detailed record of your involvement in your children’s lives and activities can be very helpful down the line.
7. Keep the Other Parent Informed
If you are the parent primarily responsible for your children’s schedule, now is the time to start informing the other parent. School events, doctor’s appointments, dance recitals – make sure the other parent is aware of what’s happening. You do not want to be accused of cutting the other parent out and keeping him or her in the dark.
8. Keep a Record of Your Interactions With the Other Parent
The parents’ ability to communicate with one another is an issue that comes up in every custody litigation and something that the courts always consider. Whether it is to show how great you are at communicating with one another or how “bad” the other parent is, save your emails / text messages with your spouse. They may come in handy.
9. Don’t Use Your Kids as Messengers Between Yourself and the Other Parent
This is a big one. As much as you may hate your spouse, it is not your children’s job to be the “go-between.” Pick up the phone, send an email, but do not send messages through your kids.
10. Evaluate Your Strengths and Weaknesses
This is the biggest and often the most challenging. Evaluate your strengths and weaknesses as a parent and make any necessary adjustments. Be honest with yourself. Do you drink more than you should? Do you use substances that you should not? Do you work all the time and are rarely home? Now is the time to look at yourself as a parent objectively and make whatever changes or adjustments may be necessary. As tough as it may be to face your challenges, you won’t be able to avoid them once you find yourself in litigation. So talk to that therapist and face the reality.
Valentina Shaknes is an attorney and co-founding partner of New York matrimonial and family law firm Krauss Shaknes Tallentire & Messeri LLP. Her practice is devoted to all aspects of matrimonial and family law, including high conflict custody disputes, complex equitable distribution, and pre-and post-nuptial agreements. Ms. Shaknes also specializes in international child abduction disputes, including proceedings under the Hague Convention. www.kstmlaw.com