How to “Win” a Custody Case Without Scorching the Earth

For parents who are separating, the fight over custody is often the most contentious.

And some are willing to commit all their resources in an effort to maximize their time with a child (or minimize the other parent’s time).

But taking a “scorched earth” approach to a custody fight can be counter-productive.

The Cost of the Fight

Merriam-Webster defines a “scorched earth approach” as one involving widespread destruction of property and resources of the enemy; also, a strategy directed towards winning at any cost.

All family lawyers have seen cases where parents deplete their savings, retirement funds, and even college accounts, all in the hope of ‘winning’ those two extra overnights out of every two-week block of time.

Each parent testifies about the other’s dirtiest laundry, in hopes of impressing a Judge that his/her imperfections are less serious. Grandparents are called to testify to how they knew all along that the other parent of their grandchildren was bad news. New spouses are called to testify to how much better things will be in their home.

And after all of this – regardless of the outcome – the children still have the same parents. The custody schedule put in place still gives each parent meaningful custodial time. And those same parents are still tasked (usually) with making joint decisions. Except now, the parents are even less interested in working with one another than they were when the litigation was initiated.

“Winning” a Custody Case Can Be a Misnomer

There are certainly cases in which a parent is awarded sole physical and legal custody of their child or children. And some circumstances justify such a result. But these are few and far between.

In most custody cases, the outcome is one in which each parent has some role in decision-making and/or sharing custodial time. And in those cases, it can be difficult to quantify which parent “won” when evaluating an outcome. Often, in fact, both parents feel as if they have lost in some way. And after a trial full of vitriolic testimony, certainly, the children have not won.

The steps parents choose to take in seeking an outcome they view as favorable in their custody case will have a significant impact on their ability to co-parent downstream, and more importantly, the relationships their child(ren) can expect to have with each parent. So before each parent spends too much energy prepping that trial testimony about the other’s shortcomings, parents could instead consider asking what he/she can do to support the other parent in minimizing the impact of such shortcomings on the children.

Compromise for the Sake of Child-Focused Solutions

In cases where both parents agree that the child(ren) should spend meaningful time with both parents, meaningful does not have to mean equal.

A parent with five out of fourteen overnights should not be seen as a loser – nor should a parent with more than 50% custodial time be perceived as a victor.

After all, a “winning” outcome is one that serves the child(ren) best. What is their routine? Who lives closer to school? Which parent is available to carpool to activities? What is each parent’s work schedule, and access to childcare? Where do the children have neighbors available for play dates? Should the summer schedule differ from the school year? And might there need to be flexibility built into a custodial schedule to account for changes in the future, such as one parent’s move or a change in the child’s schedule?

In these cases, a mediated solution improves the likelihood of constructive co-parenting, reduces the child(ren)’s exposure to conflict, and best permits a child-focused outcome.

To learn more about how we can help you “win” your custody case, reach out to Meg Rosan, chair of our family law and mediation practice groups, at (301) 656-1177 or mrosan@bulmandunie.com.