April 2006
Volume 2, Number 3
Table of Contents

10 Early Signs Your Client's Going To Lose Custody

by jennifer j. rose

Clients seeking custody don't always say what they mean. Careful attention to the information volunteered by the client and responses to simple questions during the initial interview often forces real clues to emerge, revealing the client's agenda. The client's motivation for seeking custody may stem from more than a genuine concern for the child's best interest. Does your client really want custody of the child?

The client's life is spinning out of control. Gone will be the social status conferred by marriage, a second income, half of one's domain, and even the object of one's disdain. Elimination of fault as a ground for dissolving the marriage puts a non-negotiable twist upon whether or not the marriage will terminate. Mandatory child support guidelines and statutory factors for property distribution often reduce the task of dividing up the spoils to a matter of simple algebra. Often the only issue remaining for the catharses of debate, name-calling, finger pointing, blame, conjecture, speculation, vituperation, and contest of character is the custody award. Because the criteria for determining custody are subjective, the likelihood of the client's self-deception and manipulation of those criteria is great.

These clues usually will mark the client who is headed for unsuccessful custody litigation:

  • The client views the child as chattel, dictating and restricting the other parent's access to the child without good cause. This client usually viewed the spouse as chattel, substituting the child for the departing spouse, expressing extreme bitterness toward the spouse's paramour.
  • Usually amid great emotion, the client places undue emphasis upon restoration of the marriage, attaching unrealistic expectations that the departing spouse will return to the fold if custody is disputed.
  • The client perceives the threat of custody litigation as a bargaining chip to gain concessions in property and support issues.
  • The client doesn't know the child's middle name or date of birth.
  • The client refers to the child as "it" instead of by name or gender.
  • The client knows that the "goodies," usually possession of the family home and its artifacts, accompany the parent who has physical care of the child.
  • The client's reaction to a preliminary estimate of his or her child support obligation is "I can raise the child more cheaply than that" or "If I'm going to have to pay that kind of money, I might as well raise the child myself."
  • The client is preoccupied with others' perception of him or her as a "bad parent" who does not have physical care of the child.
  • The client insists that "I want my child to know that I fought for him." (Tell the client to invest the money, which would be spent litigating custody toward a sports car for the child's 16 th birthday.)
  • When asked to identify the child's physician, teacher, best friend or day care provider, the client faces sudden memory loss. If asked which parent takes the child to the doctor, purchases the child's clothing or performs other routine parental chores, the client's best reply is an equivocal "We both did." Or "I would have."

Like all generalizations, these markers won't identify every client with a weak claim for custody. Some clients are simply not very bright. Others are glib, articulate and sufficiently savvy to spout the right lines, foiling everyone except the judge. Identifying those clients at the outset who aren't likely to win custody can be a valuable reality check for both counsel and the client.

jennifer j. rose, editor-in-chief of GPSolo , is a lawyer and writer living in Morelia, Michoacán, Mexico. She can be reached at jenniferrose@abanet.org.



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