It is the business of a general to be serene and inscrutable, impartial and self-controlled.
-Sun Tzu, The Art of War, circa 2000BC
From commencement to conclusion, a custody dispute often follows a protracted and sinuous course. In the meantime, the combatants, unfamiliar with this strange new terrain, all too often rely on their instincts and impulses to survive. This is often a disastrous strategy. In a heated divorce, your natural instincts will likely dictate conduct and comments that are directly inconsistent with your objectives.
This is understandable given the depth of the offense and the gravity of the dispute. The accompanying welter of feelings provides a poor but powerful compass that unfailingly misdirects your conduct on key occasions.
In this storm of emotions and events, your words and your deeds are being scrutinized by those who will greatly influence, if not decide, the fate of your children. Your instincts dictate confrontation. Your impulse is to attack at every turn. your sensibilities have declared a holy war.
Clients in this state of mind always do the wrong things. They fire off caustic and damaging letters to spouses and even their judge. They allow themselves to be drawn into physical and quasi-physical altercations with their wives. They fly off the handle in front of pivotal players (experts, the guardian ad litem, opposing counsel, and even the judge) without inhibition.
Therefore, I think it is critical to lay down some simple ground rules that should guide your every word and deed from the start to finish in a custody dispute.
It is important to keep in mind that everyone around you should be thought of as a key player at this difficult time in the decision of whom your children should be spending time with.
Here are some guidelines to follow in your dealings with these key players:
1. Never display hostile feelings toward your wife. Naturally, you are expected to feel displeasure, perhaps even resentment, but keep such emotions under careful check. Do not display wholly negative feelings, such as anger, bitterness, or sarcasm.
2. Unless you wife’s adultery ties in tangibly with a custody issue, do not raise the matter, particularly when discussing the subject of custody.
3. Find some good things to say about your wife. Resist the temptation to paint her entirely black. Such concessions greatly enhance your credibility.
4. Readily admit your mistakes and defects when the evidence is there. You should not place your credibility on a sinking ship.
5. Be the first to disclose any damaging facts you know that the other side will raise. If politics has taught us anything, it is the importance of spin control.
6. Know the important historical information regarding your children’s health, education, and so on. Such information should include the following: 1) doctors and major illnesses, 2)schools, teachers, and grades, and 3)extracurricular activities.
7. Be prepared to discuss specifically the custodial plan you propose. The more premeditation you display here the better.
8. Be prepared to explain why you believe the plan you propose is best. In doing this, focus on your strengths as opposed to your wife’s weaknesses. If, of course, she has a major defect, say, alcoholism or mental illness, you must and should give the matter its deserved attention.
9. Show initiative in your communications. Always be the first parent to contact the key player once he is identified. In such matters, the first word is often better than the last although you should aspire to both.
Furthermore, do not passively wait for the key player to contact you. If you know that a meeting is to occur, initiate the contact. If your attorney says it is okay, you might even keep the key player updated on important developments.
10. Be mindful of your appearance. I wince slightly as I write this section because I realize that for many of you, this point will seem condescending and unnecessary. However, my experience tells me that many men need to hear it. If you are not one of them, skip to the next point. Generally speaking, if your dress is a suit, then wear one on this occasion. If not, wear pressed slacks (no jeans), an ironed button-up shirt, and a tie.
Some attorneys will disagree with the necessity of a tie. My reasoning is that it suggests slightly more respect for the key player, as well as a greater concern for the outcome. (This is particularly true if the key player is aware that you added this just for him.) In addition, you should be clean and well groomed. This includes clean nails and combed hair. Again, this communicates respect and concern. It may also say something about self-respect and responsibility.
11. Demonstrate reliability. This means, among other things, being punctual for meetings and following up promptly on items or information requested. It means, in essence, doing what you tell him you will do.
The one qualification to the tenets prescribed above for communicating with key players is this: If, for whatever reason, your attorney concludes that a certain key player is your implacable foe, you may take a more guarded, less communicative approach. In some cases, your attorney may want to be present at your meetings with this person.
And, of course, in dealings with your wife, you must always be courteous. Although this may be counter-intuitive, it is not counter-productive.
In addition to the purely defensive reasons for being on your best behavior during divorce proceedings, courteousness is also a very powerful weapon. The very forces that expose your missteps on such occasions also illuminate the traits that ensure you will remain a good father: your magnanimity, your forgiving spirit, and your maturity.