I’d like to think that attorneys who are also parents tend to have a leg up in child custody cases. They understand the practicalities of schedules, costs and how to craft workable parenting plans. But as many family law practitioners know, clients do not necessarily want a workable plan. They want to win. Which can be an existential problem for any attorney whose first impulse is to protect the child.
So how does one reconcile what is ideal for our client versus what is actually best for the child? Even though custody literature has been steadily favoring shared physical custody arrangements, it’s still difficult to convince a client that seeking primary physical or legal custody may not necessarily be the best for their child – no matter how much animosity exists between the parents.
To face this challenge, it is important to muster the courage to tell the client, “It’s not that you don’t deserve full custody, it’s that your child will suffer if you alienate the other parent. Having regular access to both parents equals a happier child, and isn’t that the point?”
If the client’s response is that the other parent is dangerous, unstable or resides far away, I investigate further to see if joint custody is truly inappropriate. If so, the parent in me goes into protective mode and I aggressively pursue primary custody.
However, if there is not much there, and my client still wants their “day in court,” I find that going over the judicial process helps to foster more reasonable client expectations. I explain that, although going to trial generally results in a proper verdict in many areas of law, in the context of custody, it is best to exchange discovery and then settle on mutually agreeable terms. Because after a trial, the parties may not even be able to look each other in the eye, much less co-parent. Explaining that there will be a third person making the ultimate decision also helps. The thought of truly relinquishing all control can be a powerful deterrent to the overzealous client.
Being a parent who practices custody law is a blessing and a curse. Your instinct will be to look at the totality of the circumstances and pursue a plan that will enable the child to flourish, but you’ll find that some clients do not appreciate your collaborative approach. It’s important to address these issues early on in each case so you do not burn yourself out.