Facts vs. Feelings in Child Custody Litigations
When you’re in the midst of a custody dispute with your co-parent, it can be a tall order to keep emotions out of formal proceedings, especially when there may be contention between parties. Feelings are unavoidable and with popular media portrayals of family court never neglecting to ladle on the drama, no one would blame you for thinking that your personal sentiments about your co-parent or the circumstances that led you to court would somehow sway the judge overlooking your case. But the truth of the matter is in domestic litigation, just like any other type of legal procedure— the facts, and not the feelings, are what win the day.
In countless client sessions, I have had to redirect my paying clients to advise that although the situation is very emotional for them and the action of their co-parent hurt their feelings— it is not evidence. Often, the reply is: “I want the court to know” or “Once the court hears this they will have no option but to rule in my favor!” The reality is, in most cases, you don’t know your judge personally, so what you view as reprehensible behavior could be viewed in the opposite light by them. Rather than trying to convince the court to rule in your favor because your co-parent is a bad person, focus on presenting facts that case law and statutes mandate be evaluated in determining child custody, access, and support. This forces the court to truly appraise the substance of your evidence.
Unlike traditional civil and criminal law cases, domestic litigation does not always follow the assumable logical path for a verdict: there is no jury, so you are presenting your case to a magistrate or a judge who more than likely has their own opinions about you, your co-parent, and your case before the first witness is called. Thus, in domestic litigation, more than any other discipline, the discretion of the judge in evaluating evidence before making a child custody ruling is unyielding. So in order for your theory of the case to best be advanced, it is critically important that you avoid feelings and present indisputable, fact-based evidence.
For example, in your direct testimony you tell the court how the actions of your co-parent made you or your child feel negatively. The court can question why you felt sad or bad about a behavior and potentially dismiss it as “spilt milk.” However, if you shift the focus to the act itself and how it is adverse to the best interest of the child as well as being at conflict with a particular statute, the court must now assess if your fact-based evidence comports with the statute. Again, you are left to mercy of the interpretation and discretion of the court, but you want to make it as difficult as possible for the court to delineate from the statute and go with their personal opinion. Yes, judges have personal opinions and often times in domestic cases their personal opinions impact your case.
This is no small task, and I empathize deeply with litigants as they are encouraged to share very personal, even traumatic chapters of their life before a judge while showcasing next to no emotions and say nothing of having to endure cross-examination from opposing counsel. It is not easy to sit through all of that while trying to feign impassivity in the face of possibly losing custody of your child, but it is imperative nonetheless. This detached storytelling is done with the hopes of persuading a judge to do what they think is in the best interest of the child. Court room dramas may thrill the mind with impassioned speeches winning over an otherwise stoic magistrate, but they’ve unfortunately painted an erroneous picture of what it really takes to prove a case in family court.
As you navigate telling your story in open court, beware of emotional pitfalls, temperamental fits, and remember to keep the facts front and center. It’ll be a test of fortitude, but could quite possibly be the end-all-be-all for your case.
