While important for either parent, more important than courtroom skill is a lawyer's guidance in paving the way for a father's getting custody.  In other words, more important than anything I actually say or ask in court is the advice I give you on positioning yourself to improve your chances of custody, and also how closely you follow my advice.

        Whether you are the mother or the father, chances are your case will not be won with smear tactics or revelations of scandal.  That's TV... it's not reality.  What we must do is convince the judge the child would be better off with you... and that means we have a good deal of control.  We (or at least you) have control of you.

        For fathers, barriers do exist. Even today, with legislation on the books prohibiting blatant gender discrimination in child custody cases, many judges continue to exhibit a subtle, often unintentional, prejudice against fathers.  "Positioning," or the father's ability to structure his life-style to minimize barriers to obtaining custody, is important role even before the court considers traditional factors.  While positioning is important to give the father a serious shot at custody, it can nearly seal the case for the mother to get custody.

 POSITIONING

        Part of positioning is closeness of residence. The closer you live to where your children now are, the better. If granting you custody means changing the child's school, community, friends or health care providers, that's a mark against you... you are not "positioned" well.  It may be impossible to make any change, but when it does, set up residence near where the children live now or have been living for quite some time.  (For the parent with custody, usually the mother, this geographic positioning goes with the custody — that parent already has it.)

        (The longer they have been living somewhere and the more jarring a move would be for them, the more important it is for the non-custodial parent to live where they are.  Yes, this is asking a lot, and that is a big part of the importance of it.  The court is likely to be impressed with the EFFORT and SACRIFICE of a parent doing this to make life easier or better for the children.  Note, that this is not saying the court will be impressed with an effort to GET CUSTODY of the children, but by an effort to make life BETTER for the children... much as Solomon looked for the woman willing to give up her claim to the child he proposed cutting in half when he needed to decide who the mother was.)

        Child care is also important.  Fathers holding down full-time jobs frequently are clueless about child-care arrangements. For a father seeking custody of a child living with a stay-at-home mother, it is extremely important to have good child-care arrangements in place. If the custodial parent works outside the home, then continuing the same day-care service or a suitable substitute is crucial.  You must have both investigated day-care options and have a plan in place if you get custody.  No judge will award custody of a young child to a working father (barring some fairly drastic circumstances involving the mother) unless there is a rational, viable child-care plan.  Now, the down side for fathers is that judges are unlikely to award a child to a NON-working father, either, because he is considered a poor role model shirking responsibility.  Judges are far more likely to overlook this with mothers.

        You also need to be acquainted with the various health care, educational and other providers in your child's life.  Contact the child's doctor to discuss the child's medical needs and let the doctor know that you want to take part in your child's care. The same goes for teachers, coaches and any others in the community who work with the child.  A parent unfamiliar with these people have a much steeper mountain to climb, if for no other reason than some of them may end up as witnesses in a custody decision and they are less likely to bury you with their testimony if they know you care about your child and that your spouse was lying when claiming you have two heads.  If you have to make up for years of deferred attention in the few weeks prior to filing for custody, chances are that much weaker... so start EARLY.

        If the child has special needs, let me know what evidence can show you're competent to deal with them.  If you can't find classes to help you, whether it be learning to administer injections for an insulin-dependent child or learning to catheterize a paralyzed child. If you attend such classes, be sure to get written certification of proficiency in administering the procedure.

        Special needs aside, it would also help to complete any available parenting courses.  Every county has them, and if you can't find them, ask me.

        Once you try to assert a role in your child's life, the custodial parent or her (or his) lawyer may write the school principal, the pediatrician, church officials, and others, directing them to deny you access to information.  Neither parent has authority to do that without a custody order from the court, but those letters might sound authoritative, and could be taken seriously by anyone who fears lawsuits and is inclined to trust the parent the child is living with.  If this happens, let me know so we can decide whether to use formal discovery procedures or an emergency conference/hearing with the judge to request an order to compel records production.

 RECORDS

        Keep records of ALL of your contact with the child, what you did and was there, and also of all of the time the other parent has the child, when and where each exchange of the child took place and who else was present.  Whenever possible have a witness present during any exchange of the child, and tape record these exchanges (this is legal in Tennessee -- click here for more on the law of recording a person without telling them).

        These records are both to help refresh your memory, to help make your testimony  more authoritative, and to help you produce witnesses in case the other side makes unfounded claims of abuse or molestation.  (Click here for information on what to do if such charges are made -- under no circumstances should you ever ignore charges of abuse or molestation and assume they will go away simply because there is no factual basis to them) .

        In fact it is a good idea to have another person with you at all times when you have the child so you can quickly and soundly put down any false claims like this.  False claims have become a very serious problem in recent years and can result in criminal charges and restrictions on visitation that make a parent's life a nightmare.

        Do NOT have someone you are dating/sleeping with stay overnight when the children are with you, because this will hurt your case and it is bad to expose the children to, but if there is anyone else you can have present to help back up your testimony, have them there.

EMERGENCY ORDERS

        The most frequent pretrial-order scenario may arise in restoring or altering the status quo.  Probably the most critical factor for a father in a custody case is having frequent and varied contact with the child long before any evaluations are done and long before the hearing on the merits of the case.  It is important to have contact with your children at various times during the school week, both daytime and nighttime, with homework, projects, reports, athletic and other activities.

        If you've been having this kind of contact with your child until it's abruptly terminated by the mother, contact me immediately to seek emergency relief. Courts do not take kindly to a custodial parent who abruptly limits or changes a noncustodial parent's contact.  On the other hand, if you've allowed termination or interference with your relationship with your child over a period of time, don't expect to get up to speed with the child's life overnight or on an emergency-hearing basis.  In the usual case (again, barring unusual or drastic circumstances involving the mother), where a father has had only a bare-bones schedule with the child, a period of increased physical custody time is usually necessary before a full-blown custody bid can be successful.

        But also keep in mind that an emergency-hearing is not always the way to go; judges are skeptical of claims for an emergency conference because too many parents have cried wolf too often.  And the last thing you want to do is get the judge in the habit of ruling against you or cause the court to view YOU as the unreasonable party.

        The problem with emergency/status quo orders is one of timing. Evaluating a custody case can take up to six months.  If outside evaluations are involved, the judge might even refuse to set the matter for trial until notified the evaluations are complete.  A month or more may pass between the time the matter is set for trial and the actual trial date.  So while going for an emergency order might be tempting, the problem is that if we lose on it could become even harder at the full trial to persuade the court to essentially undo that "temporary" emergency decision.

        Another problem with status quo orders is that the more they depart from simply restoring the status quo, the less likely a court will entertain them on an emergency basis.  The court will instead require the formality of evaluations and hearings, just as with the actual custody case.  I am unlikely to press for emergency relief unless 1) things look close to hopeless without it, or 2) our chance of winning on the request is very strong, or 3) when there is little to lose and everything to gain.

EVALUATION

        An evaluation is expensive... and the parent with custody generally is in no hurry to have the hearing scheduled, because delay helps the parent with custody (as discussed above).  And because it may take up to three months to get SCHEDULED for an evaluation, it is important to make the decision for evaluation early in the game.

        An evaluation may be of both you and the other parent and the children to determine who the children would be best with or respond best to or feel most secure with... or to determine which parent has the better parenting skills or care most for the children.  Or it may simply be for a psychological profile to give the court professional insight in you and to help give color to the picture we are trying to paint the court.

        Make sure you do not appear motivated by hatred or spite.  This will kill your chance with most mental health professionals conducting these evaluations.  Judges and evaluators most often look favorably on the parent who: 1) has risen above the marital controversies and has set about the business of raising the child as best as he or she can, and 2) has respect and concern for the rights of the other parent vis-a-vis the child.

        If you've remarried or are living with someone, be careful that your spouse/partner does not appear to want to supplant the natural mother or father.  The "takeover" mentality is universally loathed by custody evaluators and judges.

SMOKING

        If you smoke, stop.  Yes, it's hard.  But second hand smoke is terrible for kids, and there are now reams of studies that show the health damage it does to children.  If the custody issue is anywhere remotely close, a judge may well decide custody on the basis of which parent smokes.

        Some judges openly say they consider it child abuse.  Expert witnesses can also hammer the point hard.  (For more information click here.)

        So if you DON'T smoke and the mother does, it is something we will want to use.  If you smoke and stop, the effort you made in stopping will also do a great deal to convince the court you are sincere in your desire to do all you can for your children.

THE CHILD         If they are mature enough, I would like to interview your child or children.  This is not to brainwash the child to say things supporting our position, but to make the child more comfortable.  At some point the child may be in a room with me, opposing counsel and the judge.  It helps if the child at least knows who I am.  I won't, and I do not want you to, enter into long discussions with the children about the custody process, or reminding them to tell the truth, or telling them what will be expected -- all of this tends to be counterproductive by increasing their anxiety and feelings of pressure.

        In Tennessee, once a child reaches age 12, if the child wants the court is required to listen to the child preference regarding custody.  But note that this merely requires the court to allow the child to state his or her preference, not to follow that preference.

THE FAMILY HOME

        Courts generally are hesitant to alter the status quo in any custody case.  The conventional wisdom of mental health evaluators and judges is that children have certain "anchors" or stabilizing factors in their lives that provide security and comfort in times of stress.  The biggest one is the home and its trappings, such as the child's bedroom, neighborhood, backyard and pet.  The parent who occupies the marital home is therefore at a great advantage.  When a parent (usually the father) is, quite literally, on the outside looking in, much of the synergy that comes from living under the same roof with the child evaporates.

        Another argument can be made, of course, that your staying in the marital home is explosive and potentially more harmful to the children than leaving.  Although each case is different, some strategic strength will be lost by vacating the family home.  This is a decision we need to discuss.

        If you leave, or HAVE left the home, regardless of the reason, make sure you stress to the children that you're is not leaving because of anything they've done.  Talk with a mental health professional about the best way to discuss this with the children, or check the advice at the link on my home page.  (This is important both to help you better deal with your children AND to position you in the judge's eyes as being concerned enough about your children to take this step.)  Be ready to counteract any effort by your spouse to persuade your children you left because you don't care about them.

IN SUMMARY

        Winning in court requires a great deal of preparation BEFORE the case is heard in court, and MUCH of that work will be your own.  Your full participation in your child's life will help ease the gender bias against fathers that exists with many judges, but be aware... that no matter what you do, it may not be enough.  Following my advice will IMPROVE your chances, but there is NO GUARANTEE.

        This is a long way from a precise science, and the best approach will depend on the facts of your case and requires an office conference to discuss a strategy.

        Because a father's custody case involves trying to capture the high ground instead of defending it, pretrial planning, and following my advice, is of utmost importance.  Any non-custodial parent, and particularly a non-custodial father, must give the judge a good reason to upset the status quo.

LIST AT A GLANCE
 -- Do's & Don'ts during breakup or divorce

Pretrial Do's:
    Let children know you love them.
    Close out joint checking and charge accounts.
    Remove business records from home.
    Notify Credit Bureau you have filed for divorce.
    Send notice of the divorce to all creditors you and your spouse have joint accounts with.
    Rent a Post Office Box, if needed.
    Attend all court sessions, and keep copies of all case related papers.
Pretrial Don'ts:
    Avoid your children.
    Move out, unless court ordered.
    Use spouses attorney or sign anything without careful review, preferably with your own attorney.
    Be afraid to ask lawyer questions.
    Use a lawyer unwilling to fight for you.
    Be afraid to change attorneys if you are uncomfortable with what is happening.
    Be surprised to lose your children
    Rely on the advice or assistance of anyone with their own agenda.
    Agree to automatic payments of any kind.

Litigation Do's:
    Tell the kids you love them.
    Accept reasonable settlement.
    Review all motions and affidavits.
Litigation Don'ts:
    Sign anything before an objective review.
    Miss court appearances.
    Pay support directly to spouse or ex she/he is on welfare.
    Accept decree with vague (i.e. "reasonable") visitation.

After Trial Do's:
    Keep "PARENTING TIME" visits.
    Avoid any direct contact with ex that might become heated.
After Trial Don'ts:
    Review divorce with children.
    Be afraid to start new relationships.
    Expose children to new people you are dating until the relationship becomes serious enough the new boyfriend/girlfriend is very likely to become permanent (meaning you plan marriage).

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