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How to navigate a divorce or custody battle

Photo of wedding rings

The process of divorce or establishing custody of children is an intimidating and difficult process for all people. Going through litigation with an abusive partner often only amplifies these emotions and experiences. Within the Genesis Legal Program, we firmly believe that preparation is key. The more you can prepare for court, the less anxiety you will have about the process and the higher the likelihood is for a successful outcome. We remind our clients of a few tenants of going through litigation that can help them feel more prepared for the process.

We don’t use the f word.

The divorce or custody process is not fair. The goal of the family court is not to punish your ex for his or her abuse. The goal is the safety and welfare of the parties, particularly the children. We work with our clients to focus on goals, not “justice” or “fairness.”

Power of the petition, if you want it you have to ask for it.

When you are without an attorney, you are proceeding “pro se.” If you represent yourself in Court, you are called a “pro se litigant” or a “self-represented litigant.” One of mistakes I see pro se litigants making is not “pleading” for the relief they are seeking. It is critical to properly notify the other side of what you are asking for. Family law filings should not only contain facts, but should outline what you want the judge to do for you. If you fail to do this, the judge cannot order that relief.

The judge will likely never hear the whole story.

There are often there are major time constraints in the courtroom. Depending on what county your case is being heard in, you may only get twenty minutes to present your case. The court’s dockets are full and therefore the court will often use other professionals to explore the case more fully. In your preparations with your attorney, or if you are preparing the case yourself, stick to the high points and focus on what the other parent has done to cause you or your child or children to not be safe. Tell your attorney what the other side will say about you (whether it is true or not) so that the attorney can be prepared for their arguments.

Understand everyone’s roles and interact with them in accordance. If the court orders a custody evaluation or an amicus attorney, research the job of these individuals. Understand the part they play in the case and tailor your interactions with them to the information they need to accomplish that role.

Often clients will ask “Can I just talk to the judge?” I can confidently say judges do not like this. Remember, it is your  attorney’s job is to filter the important information that will aid the judge in his or her decisions. Courts appreciate you respecting their time. Go into court expecting the other side will lie and trust that the judge probably knows they are lying. It is not necessary to have the last word, so resist the urge to do so.

It’s not personal for anyone but you and your ex. 

Often clients express their negative feelings for the opposing parties’ attorney. It can help to remember the other attorney is doing his or her job. Focusing on providing clear testimony to the court, rather than bickering with the other attorney can help ease the anxiety about testifying.

We advise our clients to answer all questions from the opposing attorney simply and calmly, with a yes, no, or I cannot recall. Being transparent and professional will not only help the judge hear your testimony but will signal to the judge that you are here to tell the truth and can be trusted.

Understand Newton’s Third Law. Every action has equal and opposite reaction.

Clients are often are afraid to make any decisions during litigation and will drive themselves crazy as to how each decision will impact the case. Every court will have “standing orders,” which are the dos and don’ts of what you should do during the case. Make sure you review these and follow them, even if the other side isn’t doing so.

Also, make sure you familiarize yourself with any orders the court has been in place and follow them (and again… even if the other side is not). If something has happened that make those order unworkable or unsafe, get back to court immediately. Do not simply stop following the court’s order.

Remember that likely anything you do will be used “against” you. If you allow the child to spend more than the court ordered time with the other parent, the other side will say you are lying about any safety concerns; if you don’t allow extra time, the other side will say you are not fostering a good relationship between the other parent and the child. Release yourself of the anxiety of indecision and trust your gut. Follow your orders, be respectful and kind to the other parent and make all decisions with your child’s well-being and safety in mind.

Be willing to “bend” on what you don’t need, and focus on what you do need.

We often observe that our clients either oscillate between “cleaning him out” or “making him pay,” or throwing in the towel and acquiescing to everything the other side is wanting. Know what is important for you to get of out the divorce and push for those things. Don’t fight over things you don’t care about, as it only will prolong the litigation and incur more expense. Work with your attorney to know and strategize whether the facts of your case and the law supports the relief you are seeking.

Be organized and do the leg work.

This is a great way to keep cost down for your case. Gather the evidence for your attorney, get police reports, pictures of injuries, school records and medical records. Do this early in the case and work with your attorney to know what format these documents need to be in to be admissible for court.

Also document, document, document. Keep a journal or calendar of  your children’s behavior before or after visitation, and document late or missed pick up times. Do not record the other parent during exchange times. If you do not feel safe during exchanges, talk to your attorney about alternatives or moving the exchange to a public place.

Seek a professional for the emotional fallout.

Attorneys are not mental health providers. Although they can provide a listening ear (often, a very expensive listening ear), try to reserve your time with your attorney to review the facts of the case and discuss next steps. Find a professional that you can work through the emotions of what is happening with. Often people are afraid to access mental health services during a divorce for fear of it being used against them. Although that fear is understandable, judges do not punish parties who are trying to process their emotions in a healthy way.

Written by Sara Barnett, director of legal services at Genesis Women’s Shelter