Planning for the Custody Battle

For years I have maintained that a critical element in waging a custody battle for dads is about appearance and presentation.  This article will address the presentation of dads to a court and ultimately to opposing counsel.

Presentation, by definition is, “the state of being presented or the process of offering for consideration or display”.  For family law purposes it is proper position, action and documentation prior to filing and, more importantly, to trial.

The best advice I can dispense to a dad “preparing” (where possible) for a custody battle is to document, and become as active as possible in the lives of their children.

As to documentation, it is imperative that a daily/weekly journal be kept.[1]  The contents of which contain “a day in the life” of the dad and the children.  Simple daily tasks that all of us perform as dad should be contained in the journal, such as who drives the children to school, picks them up, prepares dinner, bathes, prepares for bed, assists with homework, story time, doctor/dentist visits and the like.  A skilled family law attorney will use all of these against dads to demonstrate who the traditional primary parent has been.  A journal reciting the day’s events not only assists dads and their attorneys in preparing for the battle, but can be used as crucial evidence at a trial.  Nothing is more impressive to the judge than a contemporaneous recitation of what occurred.  These journals assist in giving more weight to the common he said/she said testimony.

In addition to the daily activities, dads should document the time spent with the children, noting the date.  Of equal and perhaps greater importance, is to note those occasions where your spouse interferes with or refuses custody and/or degrades dad in front of the children.  Moreover, to the extent possible, the daily activities of the spouse should also be noted, including, statements, time at work, and activities by the spouse without the children. This journal should also contain the names of the children’s teachers, doctors, dentists and friends.  If anything tends to create a “death penalty” effect on a custody battle, it’s a dad who cannot quickly recite any of the aforementioned.

The journal can be kept in a notebook, loose leaf, a day planner, a calendar or use the Custody Calendar Program.  However, whatever you use, keep the journal together, in chronological order, with each entry dated and entered on or about the time of the event described.

By now you are asking yourself, how does this help me?  Proper and thorough documentation puts dads in an excellent position for the attorney to put the client in the best position possible for trial and effective settlement discussions.  In previous articles I have states that the opposing party has no reason to settle unless and until they believe they will lose something at trial.  To achieve this belief, the opposing attorney and party must believe that dad is properly presented and prepared.  Only after depositions and before trial will this become apparent to the opposing counsel, but when it does, the effect will be to potentially instill the sense of a “real” custody battle where dad is fully prepared and positioned to achieve the best result possible.

[1]  Of importance to note is that this journal must be kept in a safe location which is incapable of being discovered by your spouse.

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