10 Tips For Resolving a Custody Case

Bulman Dunie Partner Meg Rosan recently presented to the Family Law Section of the Maryland State Bar Association “10 Tips for Resolving a Custody Case”.

As a mediator, court-appointed best interest attorney, and a top 100 attorney in Maryland, Meg regularly litigates, negotiates, and resolves custody disputes.

If you are an attorney or if you are a client considering separation or in the middle of a custody fight, here are Meg’s strategies for how she tries to bridge conflict:

Tip #1 – Don’t Be Your Client – Be Their Advocate

Being a mouthpiece for your client does everyone a disservice. Your client hired you because they need an advocate – not a loudspeaker. And part of advocacy is explaining to your client both the strengths and weaknesses of their case. For example, if your client is seeking sole legal custody, ask them why. And if they haven’t shared any facts you think would likely persuade a judge in their favor, tell them. It is ultimately your client’s choice how they wish to proceed with their custody case, but it is our job to make sure they proceed with a full awareness of the risks associated with the path they have chosen.

Tip #2 – Don’t Insist on Trying Your Case Before a Judge Unless It’s Absolutely Necessary

We appreciate all the hard work being done by our judges every day. And they serve an essential function when parties cannot agree. But that doesn’t mean we encourage our clients to threaten their co-parents with litigation. “I’m taking you to Court!” might not be a threat you want to make. First, getting a final order can take as long as a year or more, and in the meantime, the children are in limbo. Second, many judges themselves will tell you they are not best suited to make these decisions – rather, the parents are. And taking a case to trial results in the parents losing complete control over the outcome – vesting decision-making power in a judge who knows relatively little about the family and likely hasn’t met the kids. Even when you think you have an open and shut case, you could be sorely mistaken. It is possible even that both parents will be disappointed with the outcome after a trial. Let’s clear out the backlog of custody cases using alternative dispute resolution!  Mediation is an important tool that the court will require of you even if you do file suit, so consider mediating first instead.

Tip #3 – Ask Your Clients to View Their Position From Their Kids’ Perspective

It’s easy for bickering parents to focus on what they want – or sometimes what they don’t want the other parent to have. But if you ask your clients to view their position on an issue from their kid’s perspective, you might generate different, or more creative, outcomes. If you cannot get your client to shift their focus, suggest they work with a parenting coach to assist in the generation of ideas, and ultimately help them reach agreements in the best interest of their children.

Tip #4 – Issue Spotting

Does your client make statements suggesting they may have an addiction issue? Or does the other side suggest that is the case? Does your client describe their child’s behaviors in such a way that suggests the child may need to be evaluated for mental health or learning disabilities? Could your client benefit from additional mental health services? Oftentimes recommending a client seek mental health or addiction services can seem difficult. But I’d rather have a proactive client who acknowledges an issue, than risk being viewed as the party in denial, who refuses treatment unless and until it is Court-ordered.

Tip #5 – Help Your Client Focus on the Necessary Terms

Custody negotiations can fall apart over disputes that are not to be resolved (for example – how much can the grandparents visit, how often you’re allowed to FaceTime, or whether you must agree on babysitters). Consider that these folks are not just co-parenting children together for 18 years. They’re co-parenting for the remainder of their lives. Unforeseen issues are inevitable, and we cannot contract around every situation that may arise. Limiting the issues to only those that must be resolved now, or that a Court would be willing to entertain, and putting in place a protocol for resolving future disputes as they arise, could help you finalize that deal.

Tip #6 – Choose Your Mediator Wisely

As stated above, you are likely to be compelled to take part in court-ordered mediation with a court-assigned mediator even if you’ve opted to litigate. You can short-circuit this by agreeing to early mediation with a private mediator you select. Consider encouraging your client to mediate with a mental health professional without counsel present if appropriate. If counsel must be involved due to an imbalance of power or other reasons, suggest trained family law mediators to opposing counsel and see what they say. There are many skilled professionals helping families resolve custody disputes every day. This process can take several sessions and can be costly, but it is almost always faster and much less expensive than litigation. And most importantly: your client, the parent, is the one with control over the outcome!

Tip #7 – If You Must Litigate, Do It Thoughtfully

Yes, your pleadings should be detailed enough to put the other side on notice of the claims you intend to raise. But do you need to detail exactly what Aunt Judy said at carpool? Or how many times little Johnny came home with a dirty diaper? Save these details for your discovery responses. Remember pleadings are available for public inspection now, and forever. Lodging missiles at the other party may feel good to your client now, but what does it do to their co-parenting later? It is our job as advocates to advise our clients on what they can do, but also to advise them on the potential consequences of all the options available to them. A scorched earth approach to a custody case is not likely to do the children any favors now, or later.

Tip #8 – If You Must Litigate, Consider a BIA

Appointing an attorney to represent the children is not only a great way to increase the likelihood of child-focused outcomes, it’s also likely to increase the chances that your case will settle without the need for a trial. A good Best Interest Attorney (BIA) will speak candidly with both attorneys about his/her recommendations in hopes of helping the parties reach child-focused agreements on custody in advance of your court date.

Tip #9 – Work With Opposing Counsel, not Against

It may sound counter intuitive. After all, aren’t we in an adversarial process? Where there will be a winner and a loser? It’s not so simple in a custody dispute. The parties to this case are likely in the business of parenting together for the rest of their lives. So rather than bringing down an opponent, focusing on securing professionals to help the family and limit the scope of litigation, if any, is likely going to be the best outcome for the children. And ultimately, don’t we hope that’s our client’s number one goal?

Tip #10 – Compromise

Finally, remember that perfection can be the enemy of progress. It’s rare for any parent to get everything they think they want. Sometimes the benefit of having a custody agreement in place – even an imperfect one – outweighs the pitfalls your client is trying to protect against, and which are holding up an agreement. Keep in mind that children benefit from stability, so for your client’s kids to hear that their parents have agreed on a schedule may take a huge weight off their shoulders, even if that schedule might not be perfect in one or both parties’ views.

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