Contentions custody battles are unlike anything else in the domestic law arena. Both parents are convinced that their custody positions are correct, and they are entrenched in their positions. While most domestic cases settle at mediation, these cases almost always go to trial—sometimes for multiple days. Thus, the question, “How do you successfully fight a contentious custody battle?” is one that you need to contemplate and answer very carefully. Every attorney has a different way of preparing, there are four (4) key elements to properly preparing every custody trial.
First, and most important, it is critical that you obtain a very experienced child custody lawyer who has litigated many of these cases. With these cases, your trial strategy may need to change literally with a given piece of testimony and/or witness testimony. An experienced domestic attorney can make this adjustment “on the fly”. It is very unlikely that an attorney who has not handled multiple custody battles is ready for such a “fight”. And a contested battle is a “fight” in every sense of the word. Your ideal attorney will also have razor sharp trial skills and can ensure that inadmissible evidence gets objected to and excluded from trial. Most domestic case are much more informal, and many attorneys and judges dispense with evidentiary formalities. Not so in a high-conflict custody case. Simply put, you should ask any domestic counsel about their experience handling high-contentious custody matters. If they have not, you need to seriously consider alternative counsel.
The second most important consideration in a highly contested custody case is that your case has a trial theme—why you should be awarded sole physical and legal custody. Many cases falter on this point. The parties merely go into court, put on negative evidence about the other side without tying it to a theme, expecting the judge to figure out what you want and why. This is very unlikely to happen. If you have a trial theme–why the court should grant your custody request– then your testimony and exhibits will all tie back to the theme. This will avoid the trap of you putting on a variety of negative evidence against the other parent—favorable evidence to your position–and then hoping the judge figures out what you want is in the best interests of the children. The importance of a trial theme cannot be understated. Without this, most highly contested custody disputes become nothing more than a “mud-slinging” contest. If you are able to stick to your trial theme, it should be clear to the judge what you want and why it is in the children’s best interests. This is how you have your best chance at prevailing in a highly contested custody case.
As should be apparent by this time, and thirdly, contested custody cases have high stakes. There are no do-overs. You may have compelling evidence to support your trial theme. However, many cases are lost because counsel does not lay the necessary evidentiary foundation or get the evidence into an admissible format. Thus, on objection, it is excluded in the case. This means this cannot be considered on appeal (unless the evidence was improperly excluded). Getting certain evidence into an admissible format is time consuming and expensive. However, it’s not difficult because the rules for evidence for admitting evidence are set forth in the Indiana Rules of Evidence. In addition, many contested custody cases have extensive discovery, experts, and the like to manage. Only a highly experienced domestic attorney can manage this type of case. The place to learn your attorney does not possess these skills and/or have the evidence into an admissible format to admit after laying the right foundation is NOT at the custody trial. Take great care in who you select to handle your contentious custody case. Attorneys who do handle high conflict custody cases possess a mastery of domestic law and trial practice.
Finally, a very common failure–even among experienced domestic attorneys—is deficient trial pep with the client. Some of this may be a time or cost issue, as preparing a client for trial is a tedious and time-consuming process. However, you need to go through the evidence (your case in chief), your witnesses and their expected testimony, as well as your exhibits before trial. This allows you time to iron out problematic areas related to your trial theme. Further, every parent has negative issues that they know will be brought up at trial and used against them. These should be fully disclosed and discussed with your counsel to ensure they are handled in the correct way to minimize the “damage” to your case and trial objectives. In fact, it is common for trial counsel to address your weaknesses first to acknowledge them and through your testimony relay why they are not problematic at this juncture in your case.
This blog post is written by the experienced domestic attorneys at Ciyou & Associates, P.C. This blog is written for general educational purposes. It is not to be used for any given legal issue or matter. This blog is not legal advice. It is an advertisement.