The purpose of this letter is to explain to you the client, the "formula" that I have utilized with great success in obtaining custody for other clients. The letter is written as if I am advising a father. The principles, however, would hold true for either a man or a woman. Naturally, the nature of our society and of normal circumstance is that the individual who has difficulty in obtaining custodial rights is usually the father. I apologize for any gender bias in this regard; however, it is a pragmatic fact of life.
The first and primary thing to remember in connection with attempting to obtain more time with your child or obtaining custody of your child is quite simple: You have to be an excellent parent. First and last, women win custody battles because they are usually better parents. Why are they better parents? That will be explained below.
The second primary way one wins custody of one's child is documentation. There is an old saying regarding history and the relationship between spouses: "If it isn't written down, it didn't happen." In other words, it is not enough to be an excellent parent. You must also have documentation to prove that you are an excellent parent.
What is an excellent parent? That varies, of course, upon the child's age.
With a young child, you want to work on having meaningful time and bearing an appropriate share of the burden. For a toddler and pre-schooler that means you want to spend a lot of time talking to the child and reading to the child. Although it may be boring to just sit in the family room and roll the ball back and forth, that is what you should do with a two-year old. Constantly playing little games with pre-schoolers is an excellent idea. It develops a bonding with the child as well as advancing their speech and socialization. Basically, you should spend as much time as possible interacting with the child.
With young children, you should also make sure that you are bearing an appropriate part of the burden. In other words, you should get up with the child in the middle of the night if they need a feeding. You need to do more than your share of changing diapers. Take the child to the doctor. Make dinner for the child. Basically, involve yourself completely with the child in every way you can.
Also, observe what your spouse does with the child. Detail and record how much time they spend with the child and whether they lose their temper and do anything inappropriate. All of this information needs to go in a diary. The diary is the most important way you can document what happens with the child.
For a pre-schooler or toddler, your diary should be a bit of a daily schedule. It should state who woke the baby up, who took the child to the babysitter, who made breakfast, who made dinner, who read the child a story, who put the child to bed. Further, if anything unusual happens, it needs to be put in the diary. REMEMBER, IF YOU DON'T WRITE IT DOWN, IT'S AS IF IT NEVER HAPPENED!! You will never remember what happens today, six months or a year from now when you get to trial.
Obviously, if your child is under the age of four, your attaining custody as a father will be extremely difficult. Your potential to obtain custody for a child who is older is much greater. How can you do that? First, think about what a child needs. Cases have stated that a parent must look after a child in basically three different areas: spirit, mind, and body. These are also expressed as attending to the child's educational and intellectual needs, attending to the child's religious and moral needs, and attending to the child's physical needs. You need to set up a pattern in your daily life to attend to each one of those three needs of the child.
The easiest to figure out is the physical needs of the child. It means a great deal if you are involved in the daily routines of the child. For example, you should cook as much as possible, even if this means just opening up a bag of pre-made macaroni and cheese. If you can cook everyday, you should try to cook everyday. Even if it means pre-making the meals the night before, do that. If you have a regular schedule of pork chops on Monday, chicken on Tuesday, fish on Wednesday, macaroni and cheese on Thursday, spaghetti on Friday, eating out on Saturday, and soup and sandwich on Sunday, that would be fine. If you can testify to meeting the child's daily needs for food, it will mean a tremendous amount when you appear before a judge and say that you should spend half the time with that child, or the child should spend all of his or her time with you.
Make sure that the dinner contains all of the appropriate food groups, including a vegetable. Note in your diary the types of things your child likes to eat and the types of things that they don't like to eat. Make sure that you are the individual who makes the lunches and establishes an appropriate pattern for the child's physical health.
Every child should be involved in some kind of program of physical activity. That can be horseback riding, dancing, and football, anything where they get out and exercise. You should be involved in that activity. If you can, be the coach of the little league team. If you don't have those abilities, be the assistant coach. If you can't be the assistant coach, bring refreshments to the game and learn how to be a scorekeeper. Anyone can learn how to keep score for baseball or any other sport. If you don't have any idea how to do it, go to the library and find a book. The important thing is that you are involved in some fashion.
If your daughter is involved in music or dance, there are still many tasks that volunteers can do. For example, if your daughter is involved in a dance group, you could be the individual who is responsible for building the scenery. Offer to be the person primarily responsible for car-pooling. Demonstrate that you are involved with your child's daily life.
Being involved with your children's activities also possesses an additional advantage. If you are the coach of the team, all the other parents know that you are the coach. You can then call these other people as witnesses to testify to your involvement with the child.
It is very important to understand that a judge is not going to give a great deal of credibility to either the mother or father in most proceedings concerning custody. He knows that each parent is going to make self-serving statements and probably exaggerate their role and involvement with the child. Therefore, the best witnesses you can have are people who have no connection with you, instead of relatives or friends. If you were to coach your child's soccer team and you were to call two parents of other children who testified what a good job you did, it would make a tremendous impact.
Similarly, if the leader of the dance troop for your daughter is called as a witness and testifies as to your bringing your daughter to dance and building the scenery, that would help. If you called the other parents of the children in your car pool and they indicated that you did the "lion's share" of the car pooling, that would help.
If you think that it will take a lot of time and effort to put yourself in a position where you can pursue custody effectively, you are right. It takes a lot of time and effort to be a good parent.
One of the best ways to meet your child's physical needs is to be involved with their medical care. You should frequently take the child to the doctor and to the dentist. By frequently, I do not mean you need to make excuses to go see the doctor. I mean if there is a choice between you and your spouse as to who is going to bring your child to the doctor, you should be the one to do it. Even if you are estranged from your spouse, you can accomplish this. Obviously, it is a pain in the neck to leave work and go bring your child to the doctor, especially when the child wakes up sick in the morning and you have an important meeting.
It certainly would make life easier for your spouse, or ex-spouse, if you offered these services. Further, it demonstrates your commitment to the child and you become known to the child's health care providers. This is a tremendously important situation. First, you are meeting your child's needs. Secondly, it would be important to a judge because of the effort necessary to do this. Third, you have an independent individual, a physician, who can testify as to your involvement. Therefore, this is extremely important.
Next, what are your child's intellectual needs? Obviously, you should read to your child a great deal and be involved in doing their homework. Most importantly, you should get to know the teachers every year. If you are not gifted in terms of education, go to the teacher and ask the teacher what you can do to help your child. Remember, probably the most important witness after the court appointed psychologist will be the teachers for the children. They will testify about which parent they know and which parent they don't know. They will testify which parent they have called and seen and which one they have not. You must attend every school function possible. Certainly, you must attend any parent-teacher conferences, and any open houses. In addition, make some kind of excuse to appear at the school once every two weeks or so. If it is possible, based upon your schedule, see if you can be a classroom father and go to the school one morning a week. The more you can do in this regard and the better relationship you have with the child's teachers, the more favorable that teacher's testimony will be.
The same thing is true of day care workers if your child is in day care. Drop in on the day care once every two weeks and see what you can do to help out at day care. Remember that these impartial witnesses are extremely important in custody proceedings.
In terms of the child's intellectual needs, do not think that it is limited to school. It also means scheduling appropriate activities with the child at home and making sure they have an ideal environment. For a young child, for example, this would mean not allowing the child to sit on the couch and watch Barney or Sesame Street all the time. It means reading age appropriate stories such as "Pat the Bunny" for a younger child. Certainly, the child should not be watching unlimited cartoons during the weekends or at any other time.
One of the ideal things you can do for the child intellectually is get them a library card and go to the library every week or two weeks. This has a number of positive benefits. First, of course, it is very good for the child. Secondly, by your taking books out on a regular basis and your child taking books out on a regular basis, the library will have a record. Thus, you can go back and demonstrate that you have taken the child to the library on a regular basis. Make sure you keep track of this in your diary as well.
I cannot emphasize enough the importance of attending to your child's intellectual needs. Remember who a judge is. Typically, a judge is a conservative white man between ages 50 and 70. He not only has gone to college, but to three years of law school. Such a person will highly value education, and most likely not think much of television. Get rid of the cable television; get rid of the Nintendo or Sega. These are time wasters for your children. They are the equivalent of intellectual junk food. Basically, there is nothing wrong with watching television all of the time, it doesn't hurt you. However, when you spend your time watching television, you are not spending your time reading or doing other things which are good for your mind.
Judges want their children to go to college and graduate school as they did. Judges believe that more than anything else, how much education you have determines how much money you make in the world and how successful you are. Since they have that prejudice, we must meet it. You want to do whatever you can to demonstrate your interest in your child's intellectual development.
What about the child's spiritual and moral development? Obviously, organized religion is very important. A judge will not hold it against you if you do not belong to any organized religion. However, it can be a tremendous positive.
If you have any religious beliefs at all, act upon them. Bring your child to church and Sunday School. Become active in your local congregation. I can assure you it makes little difference if you are Methodist, Presbyterian, Catholic, Jew, Buddhist, or Moslem. What a judge is interested in seeing is the fact that you are considering that every child needs a moral framework in which to grow up and that you are providing that as best you can. It is a tremendously positive fact for you to be involved with any religion on a regular basis. While it will not count against you if you are not, it is a tremendous help to you. Obviously, it also provides you with one of the other things that we are looking for: verification or proof. Obviously, your minister and the Sunday School teacher will testify to your involvement at Sunday School and in your religious faith. Once again, they are impartial individuals and individuals with a great deal of credibility with the court. Therefore, having your child involved in these activities and having your minister testify in your behalf can only help.
How else can you attend to your child's spiritual and moral needs? First, one of the things you can do is promote the relationship of the child with the other parent. Assuming that is the mother, you want to do things like take the child shopping for Mother's Day, Christmas, and her birthday. Make sure that you buy with your child a card and/or present for these various occasions. You must remember that a custody trial is not about saying bad things about the other parent. It is primarily about showing how good a parent you are. One of the most important things that you can do in helping the child's moral and spiritual growth is to promote their relationship with the other parent. Going with the child and helping the child buy presents and cards demonstrates that there is not jealousy between you and the other parent. Often mothers have problems and even lose custody because they are so antagonistic towards fathers that they will not allow the children's relationship with their fathers to flourish.
You should foster communication between your child and the other parent. For example, make sure there are regular telephone calls. If you make sure the child calls his mother whenever the child is with you, then you can expect reciprocal behavior and a court will most likely order it.
I had one custody trial in which one of the most important factors to the judge was the fact that the father bought a speakerphone for a young child. The child was only two at the time and had difficulty holding the phone and speaking into it. Therefore, the father bought two speakerphones. One speakerphone he gave to the mother, who lived 1000 miles away, and the other he kept for himself. This allowed each of them to talk freely to the child and greatly fostered communication for both of them.
Finally, you may wish to consult with a counselor. I want to make sure you understand how judges view mental health professionals today. Fifteen or twenty years ago if you went to see a psychiatrist, typically it would mean that you were "crazy" and it would work against you.
Today, all judges I know of find that the stresses upon a person whose marriage is breaking up are intense. People are consumed with bitterness and hatred, sometimes they withdraw, sometimes they become schizophrenic. The point is, it is such an incredibly stressful experience that many people begin exhibiting abnormal, psychiatric traits because of the stress. Judges know that individuals who seek counselors are demonstrating two things: first, an interest in finding out how they can handle their situation better, and secondly, they will have the benefit of a professional in dealing with that situation.
Therefore, I can say that universally among the Family Court Judges in this area, they will take it as a positive that you are seeing a counselor, not a negative. In fact, many times they will look extremely negatively on someone who refuses to see a counselor. Seeing a counselor certainly can't "hurt." Therefore, if your insurance provides the opportunity, everyone should see a counselor under these circumstances.
If for no other reason, a counselor can be helpful in explaining to you how to help your child. Many things which seem to be favorable to a particular parent, are not. You have to understand the way a child thinks and the tremendous desire most children have to please both their parents.
I have had cases where one parent of a child was abusive. However, when asked which parent the child wanted to live with, the child would refuse to say. Psychologists have found that the reason children act this way is that if they "pick" one parent above the other, they feel very strongly that they are doing something wrong. As a result, they don't want to declare a preference for either parent, even though they strongly want to live with their mother.
These feelings manifest themselves in many ways. Children often tell each parent that they would like to live with that parent. They do this because they want to please the parent. Therefore, a child between the age of 5 and 12 might frequently say to each parent that they would like to live with that parent. All that they are trying to do is get the affection and attention of that parent. It has nothing to do with what they really want.
A good example of this phenomenon is the "Sunday Night Syndrome" that often effects children. A Mother, who slaves all day at a job and is extremely solicitous to her children and shows them every bit of love possible, is surprised when the children are returned from a weekend with their father. The father, in this example, is not that interested in the children. He doesn't attend their basketball games or other activities, and waives his right to see the children about half of the time. Therefore, you have this "disinterested" father. Yet, like clock-work, every month that the children go for a weekend with their father, they come back Sunday evening, are home half an hour or an hour, and throw a fit. Why do they do that?
Psychologists will tell you that any child has difficulty with self-control. That's a major difference between a child and an adult. The child has spent all weekend being on their absolute best behavior with the father because they are not secure in their father's love. They are worried that the father will waive visitation with them. They are afraid that if their father becomes angry with them, he will not see them. As a result, they do everything they can to stay "in control" all weekend and do nothing "bad."
After this extremely difficult weekend, and one that is extremely stressful to a child between the ages of 5 and 12, they come home to their mother, whom they know with every fiber of their being loves them deeply. After being rigidly in control with their father, in whose love they are not secure, they come home to their mother and "lose it." They know that they can yell and scream, lay on the floor and kick, refuse to eat their dinner or do anything and their mother will still love them. They have been under incredible stress behaving "perfectly" for their father and now they have a chance just to be kids again. Frequently, this manifests itself in having a "fit."
You must remember that a child views all things from their own perspective. They are extremely narcissistic and self-centered. If a child is in a class where half of the kids are from homes where the parents are divorced or no longer living together, a child will still often think they are the only child in that class that does not live with both their mother and their father.
Children are tremendously dependent upon both their mother's and father's love. No matter what, a child between the ages of approximately 5 and 12 will always feel that if they spend more time with one parent, the other parent must not love them that much. They are desperate to do whatever they can to win that parent's approval. That is why they are on their best behavior, and that is why they often say they want to go live with that parent, even if that parent does not show that much interest.
A psychologist can open your eyes to these feelings in your children and why it is so important to attend their activities. Most importantly, you must keep your promises to your children. Do not promise that you can come to an activity if you can't. They are often devastated when those promises can not be kept.
Remember the children look at their parents as being omnipotent and almost like "super heroes." The younger the child, the more they will view the world in that fashion. If you say you can't do something, they will understand. However, if you say you can do something and you don't, the "broken" trust from that broken promise will not easily be mended.
A psychologist will even tell you that children blame themselves for what goes wrong with their parents. A recognized phenomenon among children between the ages of 5 and 12, and even for teenagers, is that they blame themselves for what happens with their parents. Even if a parent is killed a thousand miles away in an airline crash, a child will often feel that it's their fault. They are taught varying things concerning what God is, and how He does not punish people unless they "deserve" it. If your father or mother dies, you must have done something wrong, in a child's mind, to "deserve it."
Seeing a psychologist can help you understand that phenomenon, and help you achieve better insight into their behavior and your own. Therefore, it is a very valuable tool in assisting you in being the best parent you can be, and in understanding your child's behavior.
Let me give you one last example of a phenomenon that is not readily understood without the assistance of a psychologist. I had a custody trial where the parents lived over 500 miles apart. They would meet for visitations half way between their homes, and the child would go from the mother to the father. Whenever the transition was from the mother to the father, the child, who was 4 and 5 years old at the time, would cry and cling to his mother and generally be very upset. Why did the child act like that? The child knew that the mother expected that type of behavior. She encouraged it by trying to kiss and hug him and have him on her lap. Basically, crying when he was about to go to his father became an expected response for him, reinforced by his mother's attention. Therefore, he always acted that way.
At the same time, according to the psychologist, this made the young boy feel bad. He felt bad because he knew he was insulting his father to some degree. At first, he cried a lot when he left his father as well (these two individuals each had the child half of the time until he entered school). However, the father decided that the child's crying when he was leaving his mother and crying when he was leaving his father, was not appropriate. He went to a psychologist to find out why this was happening. The psychologist explained that to him and explained to him that he should undertake certain activities in order to meet his child's emotional needs. The father then arranged for there to be "going away" parties whenever the child was leaving his custody.
Those individuals had the child on an alternating 2-month basis. So, every two months the child would be with the father, and then the next two months with the mother. At the end of the two months with the father, the father would arrange for a "going away" party at day care. He would give the child a card to hand to his mother. He would keep telling the child that it was okay to love his mother and that it was all right to feel bad about leaving his father, but he should be joyful about seeing his mother. After a short period of time, the child stopped crying when he went from his father's custody to the mother's custody.
When interviewed by the Court appointed psychologist, the psychologist was amazed at the insight of the father and stated that the father understood that it was important for the child to feel that he could be both happy and sad at the same time, and that there was no need to cry or cling to his father in order to prove his love to his father. This was one of the central factors utilized by the judge and the psychologist in recommending custody with the father.
What else should you be doing in order to win a custody trial? You should plan the activities of your child on weekends. Again, things should be age appropriate. But, you should plan activities that are going to meet the child's emotional, physical, and intellectual needs. One of the best activities that you could engage in with the child would be to go on a nature walk. It is intellectual, because you discuss the needs of animals and our environment. It is physical because you are outside taking a hike. There is even some emotional component in that you spend quality time with each other observing interesting things and being able to talk about it. Finally, it is inexpensive and doesn't involve in your being classified as a "Disneyland Daddy."
You should inquire with local museums, historical sites, state parks, town parks, city parks, your local department of recreation, about what activities they have. Going to the New York State Museum is often a good activity. Going to a local fort or historical site is a great activity. Going to county fairs, bike hikes, or any other kind of activity of that nature is an excellent activity. Make sure that the activity is age appropriate and to an extent, try to combine intellectual and physical activities.
Obviously, taking the child sleigh riding in the winter or bike riding in the summer is good. Look at the different programs offered by the various recreation departments and museums and see what is appropriate for your child. Always a good idea is a trip to the Catskill Game Farm or an appropriate zoo.
Activities which involve substantial expense like going to Disneyland or an amusement park are looked at with somewhat less favor. They show often the same kind of mentality which judges criticize in reference to television and video games: there is little real interaction and intellectual or exercise value. An amusement park does nothing for the child intellectually. Physically they are on the rides instead of walking and there is not much value in that. Finally, it is expensive. It is something the child may want to do, but it is not necessarily something which makes you a good parent. Therefore, expensive activities, especially those which do not have some intellectual component, should not be favored.
Remember that while taking your child to a movie may not be the best thing, taking them to a play, can be. Judges like the idea that you might be exposing them to "culture." Remember the judges are upper middle class individuals who still, even today, are predominantly the children of lawyers and doctors. Therefore, they look at life as middle class people.
In all of these activities, also remember that you want to document matters. Obviously, putting it in your diary remains important. However, you should also buy a good camera and take pictures all the time. You should plan, if you have your child every other weekend, to have some kind of special activity every time you have the child; like a nature walk, a hike, a visit to a zoo, or some similar activity. You should always take pictures of these special events.
What else can you do on a regular basis? I had a client once who used to go to the library on Thursday nights before he would get his son on the weekends. He would find some arts and crafts book and copy the appropriate pages to see how he would make an ashtray or a cup, or some other useful item. Often, the items he would make would be for his mother. The judge was extremely impressed when this man testified. He couldn't believe that every other weekend for 52 weekends in a row, the child did some kind of arts and crafts project while he was with his father. He was even more impressed when the child made things such as potholders and ashtrays for the child's mother. I believe it was a critical factor in the judge's ruling in my client's favor.
Remember that all of these activities can be done equally when you are still living with the mother of your child, or if you are already separated. In either case, working with your child's needs is very important.
Finally, you must again think about the trial. You have to be prepared for the trial and make sure that you can answer the questions that you will be asked. You should be the parent when ever possible taking the child to the doctor and to school. You should have on "the tip of your tongue" the name of the child's pediatrician, dentist, and teachers from this year and last year.
It is also important that you know who your child's friends are and what their parents do, and a little bit about the parents. Obviously, you would not want your child to go play at a neighbor's house when his friend's father had been convicted of sexual abuse. You should know the names of your child's friends' parents and at least what they do for a living and what their involvement is. If necessary, as you talk to these people, write this information in a notebook so that you can refresh your recollection later.
Finally, make it easy for your spouse or the mother of the child not to spend times with the child. If it is a situation where she likes to go out a couple of nights a week, always offer to take care of the child on those nights. Often if two people have separated, each would like to go out every Saturday night in the hope of meeting someone new. Make that possible. Obviously, keep a diary of these events.
Do not "tip your hand" to let your wife know why you are doing this. Obviously, what you should do is slowly progress over time so that you are increasing the amount of each day or week that you spend with your child.
The foregoing is an outline and a suggested course of action for how to obtain more time with your child or to obtain primary physical custody of your child. Obviously, the circumstances need to be tailored to each individual situation and you should discuss with me extensively your particular facts and how you might go about obtaining more time with your child or primary physical custody of your child.