I have a saying that custody cases are the rare litigation in which it is acceptable for an attorney to change the facts. While the parties’ parenting skills at the beginning of the case are relevant, their parenting skills at the end of the case can be even more relevant. Guiding a client to change behavior can often be the most effective litigation tactic of all.
Of course clients rarely want to take this guidance. Many parents believe that occasional marijuana use is irrelevant to their parenting ability. A South Carolina family court judge will not agree. Some parents believe that cohabitation with a boyfriend or girlfriend doesn’t damage their children. Again, a South Carolina family court judge will not agree. Some parents justify expressing open hatred of their co-parent to their children. Pretty much any family court judge anywhere will be aghast.
Much of my initial counsel in custody cases involves instructing clients to stop engaging in behaviors that undermine their custody goals. Often this involves telling them to stop the behaviors described above. This counsel is never well received initially. Often my counsel involves reminding them to turn the other cheek when the other parent engages in insulting or offensive conduct. Given that Christianity is the dominant religion in South Carolina, one might think the ability to endure minor slights without reacting in kind would be an ingrained habit–it isn’t. Because there is limited time to get ready for trial, a gentle approach, while preferable, is often insufficient to generate the necessary changes in the required time frame. Sometimes, one needs to get bossy.
Recently I was counseling a potential client who had already been found in contempt for engaging in a particular behavior. I told her she needed to stop that behavior. Her initial reaction was that the father was horrible and didn’t deserve to be treated with respect. I told her it didn’t matter how bad he was, she still needed to stop that behavior. At this point, she seemed unlikely to retain me, stating, “I don’t think we are going to get along.” My reply was something I’ve often told clients or potential clients who’ve engaged in contemptuous behavior, risked losing custody or being incarcerated, but who had prior attorneys with whom they got along well:
You don’t need an attorney to get along with you. You’ve had attorneys who told you what you wanted to hear and the results you obtained landed you in trouble with the court and brought you to my office. You need an attorney to get you to stop doing things that will land you in jail and undermine your custody goals, and to start doing things that will move your goals forward. I’m here to teach you how to do that. If you listen we will have no trouble getting along.
She replied, “I don’t care if I go to jail.” I suggested she consider who would get custody if she went to jail. This hopefully got through to her. Sometimes the first step to changing a client’s bad attitude is changing a client’s bad behavior–and, even if the change is only behavioral, this is often sufficient to prevent contempt findings or losing custody.
Then there are the occasional success stories in which a client has changed his or her attitude sufficiently that a case previously known to the court as involving two thoughtless, belligerent people becomes a case in which one parent is seen as making an effort to co-parent and the other parent is seen as the problem. Those cases typically get resolved with the attitude-improving parent obtaining primary custody. Many of those cases started with a bossy attorney telling a client to stop misbehaving.
A custody attorney’s job is not to be the client’s friend; it is to guide the client to behavior that pleases the court, and to demonstrate to the court that the client’s parenting skills are superior to the other parent’s. Gathering negative information about the other parent is often harder, and less effective, than getting one’s own client to improve his or her parenting skills, and then demonstrating the improvement. While I prefer the clients who make improvements based upon gentle persuasion, bossiness is an option for the intransigent.
You are absolutely right, getting the client to change is easier than to get the information about the behavior about the other co-parent and yes, like in your case, some parents are really adamant and do not want to see the light, I presume in your case, you succeeded with your persuasive efforts.
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My efforts fail quite a bit as it is hard to get people to change dysfunctional behavior. I treasure the successes.