My general advice is against battling over custody if at all possible.
Why? It’s bad for you, it’s bad for the kids, and you’ll have much less money when it’s over. Oh, and it may not be over until your kids are adults.
That said, there are times when you have to fight for custody. Make no mistake: a custody battle is the most hurtful and brutal court proceeding there is. It is expensive, emotionally exhausting and bruising. Your kids will know this. If you go down this road, you’re going to need therapy and a good support system.
If you decide to fight this battle, here are some ways to win:
One note before we proceed: remember that Vermont Family Court uses the terms “parental rights and responsibilities” for custody and “parent child contact” for visitation. I’ll use the simpler terms, but the judge won’t.
1. Start With the Temporary Order
What is the temporary order?
In every case where child custody is an issue, the first thing that happens is the judge will sign a temporary custody order. This order is, as the name suggests, temporary. It is only going to last during the divorce or custody process. There will always be a final order that replaces the temporary one.
Even though it’s temporary, the first order matters a lot. In theory, the judge doesn’t need to look at the temporary order at all when formulating the final order. The temporary order and the final order can be completely different. In practice, however, most of the time the final order is influenced by the temporary.
Why is the temporary order so important?
If you are going to have a full-on custody battle, the temporary order will be in place for quite a while. You won’t even be eligible for a final order for six months after the filing date. Then the court will spend at least a few months setting status conferences to check on your progress coming to an agreement or preparing for a hearing. In practice, that temporary order will be in place for a year or more in most cases before you have your final custody hearing.
During all that time, the kids are getting used to the parenting schedule in the temporary order. They are going to school based on that order, and they are sleeping overnight at one parent’s home during that time as well. As you can imagine, everyone is settling in and the judge knows that. Most judges know that uprooting the kids again after a year is hard on them. Most of the time, the judge is going to try to keep things stable because that’s in the kids’ best interest.
So, if you’re going to have a custody battle, start early. If you can, get the other parent to agree to allow the children to spend most nights at your home. If the other parent won’t agree to that, force a hearing.
2. Gather Resources
Financial Resources
A custody battle is expensive. You’ll want to hire the best lawyer you can for this, and make sure that the lawyer is up to the task. A fair number of family law attorneys don’t actually do custody hearings. These are full-blown trials, and often take multiple days. You will most likely need to spend $20,000 for this trial, and people very often spend $50,000 each. Don’t have that kind of money? Ask for help from friends and family if possible. Liquidate anything you can. As a last resort, act as your own lawyer. But you’re going to need to think like a lawyer and gather evidence like a lawyer to win. This is all or nothing.
Witnesses
Gather witnesses. These might be your parents, your friends, your childrens’ teachers or counsellors — the more the better. Look at the list of 9 factors below and think hard about who has first-hand knowledge and can explain to the judge why the children will do better with you.
Teachers are usually the most important witnesses who can testify on your behalf. In most cases, you will need to subpoena them to get them to testify. You can print and fill out a subpoena here. Then, you can either give it to them in person or send it in the mail. Either way, be sure to speak with them first! From my experience, teachers will generally understand and be willing to testify, but it’s never fun for anyone to get one of these if they weren’t expecting it. It’s also wise to get a good sense of what they’re going to say before the trial. Surprises are never good in trial.
3. Get a Forensic Evaluation
The best witness of all is a forensic psychologist or psychiatrist who has interviewed everyone in the family and writes a recommendation to the judge on who should have custody. Of course, the danger is that the witness recommends the other parent! But if you are confident that the kids should be with you, find someone to do this.
The family court might have a list of potential witnesses, or lawyers in town might give you some ideas. Understand that a forensic evaluation will be expensive. Plan on paying at least $7,000 to $10,000 for this report, and know that it will take months to complete. However, going to court with a psychologist or psychiatrist who has done a family study and recommends that you get custody is as close to a slam dunk win as you can get.
4. Understand the 9 Things the Judge Is Going to Look At
How does the judge make a decision on which parent gets primary or full custody? There are 9 factors that the judge has to consider before making an order.
1. The relationship between the child and each parent, and how well each parent offers love, affection, and guidance to the child.
This is the first question but it is usually not very relevant. If the judge thinks one parent doesn’t love the child, there’s not much to fight about, is there? However, it does become relevant if one parent has been out of the child’s life for a long time. Sometimes, one parent has been traveling for a long time, lived out of state, or for some other reason doesn’t really have a relationship with the child. It’s pretty hard to get over this hurdle in that case.
2. How well each parent is able to provide for the child in terms of food, clothing, medical care, and a safe living environment.
Again, in most cases both parents are willing and able to provide the basics to the child. If that’s not the case, you usually aren’t having a custody battle. Where this does become important is if one parent’s housing situation is unstable or - most commonly - doesn’t have enough bedrooms for everyone. If you’re gearing up for a custody battle, do everything you can to have at least a one-year lease on an apartment with enough bedrooms so that all the kids in your home have their own bedroom or only young ones are sharing. Fair? Probably not. But it’s an easy way to distinguish between the parent who lives in a rambling old farmhouse and the one with a two-bedroom flat.
To illustrate this, I recently advised a parent whose spouse and children lived in Vermont while he lived during the week in New York City. He shared a small two-bedroom apartment with a roommate to save money. I told him to quit his job in the city, move back to Vermont, and sign a lease on an apartment here. There was no way he would convince a judge that his apartment in New York was a “safe” living environment.
3. How well each parent can provide for the current and future developmental needs of the child.
This normally does not affect the judge’s decision. I’ve only seen it come into play when a child has special developmental needs and there’s a distinct difference in how the parents are able to help with the child’s needs, such as an IEP (individualized education plan).
4. How well the child is adjusted to the current living situation, such as home, school, and community, and how difficult it would be for the child to leave the current living situation for a new one.
This is a big one. Remember how the temporary order is important even though it is temporary? This is why. Judges will avoid uprooting a child wherever possible - and rightly so. Lots of studies show that it’s hard on kids to change homes, schools, and neighborhoods.
This means that if you are trying to get primary custody of a child who doesn’t live with you, you will need very strong evidence of other factors to convince the judge that the child should move out of their home to live with you.
5. Each parent’s ability to encourage a positive relationship with the other parent.
In most cases, this factor is not a big deal, particularly when compared to the other factors. However, it can become very significant when both parents are basically good at parenting, live in the area, and so on. It’s a big tiebreaker, in other words. It’s very common for one parent to be better at encouraging the child’s relationship with the other parent.
6. The child’s relationship with the parent who is the primary caregiver.
The primary caregiver is the most important factor in most cases. Who is the primary caregiver? The parent who provides everyday care: food, clothes, rides to sports or other activities, etc. This can be over the course of a child’s whole life, too — so even for an older child, try to document every part of the child’s life. For example, who changed the diapers? Got up in the night for a feeding? Arranged play dates for a toddler? Who goes to the child’s sports games, band practice, parent-teacher meetings?
If one parent does most of this and can prove it (remember, other witnesses are important, especially if they aren’t related to you: teachers, minister, landlord, neighbor, etc.), it will be very hard to overcome the inclination to keep the children with their primary caregiver.
7. The child’s relationships with people other than the parents.
The only time I’ve seen this make a big difference is when the primary parent lived with the grandparents and the children. It’s usually not an significant factor.
8. The parents’ ability to work together if custody is going to be shared.
This factor doesn’t mean anything. You’re in the middle of a custody battle.
9. Any evidence of abuse.
This factor deserves its own article. Let me summarize with two points: First, every custody battle ends up involving evidence of abuse. Second, it almost never matters.
Now, there are cases that involve actual, physical abuse - far too many. If that’s your case, and the other parent has physically assaulted the child (hit with a hand or object or touched sexually) you should call DCF (the Department of Children and Families) or the Vermont State Police. Understand that this action is going to start a whole other level of intrusion into your life. You’ll be interviewed, your home will be assessed, and you will be the chief witness in a criminal case. Do this for your children, but know that it is going to be a tough road.
If the abuse in your home is less extreme than that (emotional abuse or violence directed at objects and not people), it’s probably not going to make much of a difference in your case. As hard as it is, I usually tell people to let it go. You’re going to focus enormous energy trying to show that the parent is an abuser and it may make you look bad rather than proving the other parent is unfit.
Why? Because before your case was called, the judge was in criminal court hearing case after case of really awful stuff. It’s hard to get through the fog of really horrible abuses the judges hear every day with your story of yelling and manipulating. This is tough to hear, but it’s true.
5. Take a Deep Breath
I often give parents a talk about all of this across the big desk in my office. It’s my job to explain how difficult a custody battle is going to be. There’s crying. Sometimes I shed a few tears myself. But there are times when we need to armor ourselves as best we can and fight for what is right for the kids. That’s part of my job, too.
If you’re facing this prospect, take a deep breath. It’s a hard road, but you’ll get through it. And your kids will, too. If you know it’s the right thing to do, don’t back down. You’re resilient. Kids need the right space to grow, but they are resilient too.
Need help winning a custody battle? I can help.
Contact Me: (802) 797-4049
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