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Why Child Custody Cases Are About So Much More Than Just Litigation

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If You Think Custody Cases Are Only About Litigation; Then You Have Only Seen The Tip Of The Iceberg

A very seasoned family court judge, whom I hold in the highest regard, once told me that “If a custody case goes to trial then the attorneys have failed somewhere along the way…to go to trial is to fail.” If I had heard this early in my career I would not have understood what he meant in the least. Likewise, if I were the type of attorney who wanted to churn maximum profit from every case I would probably give little credence to these words. To a person that truly wants to help people and protect the best interests of children, however, that judge’s statement should be a mantra that should apply to every single custody case.

In any custody case, be it a divorce, paternity, or even child support, there will always be my client, an opposing party, and at least one child who make up the important people in the case. Yes, advocating zealously for each client is the lawyer’s job and the lawyer must never lose sight of this no matter how the case progresses. But, In my humble opinion zealous representation of my client also includes thinking about how we are going to help the parents to get along peacefully in front of the child two years down the road after all the litigation is over.

It is my belief that the vast majority of the time it is in the child’s best interests for a case to settle without need for a trial. It saves time, money for the client, helps the parents get along after the dust settles, and at the end of the day no matter how well we think we hide our stress from the kids they see and feel it and when a case is headed for a nasty trial it affects them too.

Of course there will always be some instances where you will need to allow the court to decide, but all to often it didn’t have to come to that.

“To Go To Trial Is To Fail..”

Is it even possible to convince attorneys and clients that fighting over the kids to the point of trial is not the best answer in most cases? It would take a near complete metamorphosis of the mental approach that lawyers and their clients take to these types of cases.

The law firm must realize that the best approach is not to try to get maximum profit from any one case. It is an unfortunate fact that the preparations for a trial can be the most lucrative part of the case for law firms and for good reason as there is a lot of work and forethought that goes into properly prepping a case for trial. However, when the dust settles after court and the client did not get everything they hoped for and has shelled out $15,000.00 to get there; what long range benefit is there for the firm who represented them? Very often these clients become disenchanted with the lawyer feeling that they over paid and will look elsewhere for representation when their case needs to be revisited later.

A far more desirable outcome can occur when the attorneys work hard to foster an amicable resolution to the case where both parties have a say in the result saving, stress, time, money, and their future relationship. These are the client’s that are going to recommend the lawyer to their friends and family and let’s face it, these parents are going to be in the same room later when the child graduates from high school, gets married, and has children of their own. Shouldn’t we as their legal representatives be concerned with the quality of their lives long after court? Are we as lawyers doing our clients a disservice if we are not reminding them of these future issues as we prepare the case for mediation? If I recognize that my client is letting his or her emotions cause him to be controlling and have unrealistic expectations am I wrong for not pointing this out to my client and at least trying to talk some sense into them? Most importantly, when the prospective client walks into my office with a bunch of cash and clearly wants to simply destroy the other parent for the wrong reasons, will I take on that case?

The client must realize that their emotional wounds from the old relationship with the other parent might be dictating their position in the case and they must fight against allowing that to happen. That they must work hard, with the help of their attorney, to see the case from the perspective of the judge, the opposing party, and the child. The client also needs to realize that custody battles are not won or lost in court that they are won when the child is healthy, safe, and has both parents in their life getting along, because watching the dynamic between their parents is how the child will learn how to interact with others in their adult life.

It is important that we as lawyers strive for fairness for our client, safety for the child, and to foster the future relationship of the parties after the case is over. Though we stand ready and able to go to trial in a case, we see this as an absolute last resort and recognize the cases where trial is necessary and when it is not. In my mind those are attributes of a great lawyer.

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