Going to court isn’t always the answer

Evan Koslow

Evan Koslow

If you ask anyone who knows me, including my clients, they will probably tell you I am blunt and to the point. I also may tell my clients things that as a parent I do not agree with but, as a family law attorney, I have unfortunately seen in court.

There are four reasons why I encourage my clients to settle cases outside of court (especially in custody cases), all of which come back to the fact court is unpredictable and nothing can be guaranteed or promised:

— the judge may not allow all the facts to be considered into evidence;

— the court is not trained to handle high-conflict cases, especially high-conflict custody cases, where the alleged abuse is not physical;

— the court will not put the same effort into the language of an order that attorneys can and will do; and

— witness credibility compared to the other side’s witnesses is subjective to the judge

I will provide certain recommendations and advice, because I unfortunately have seen the perfect storm one to many times: A judge who will not hear from children who are straight-A students. Testimony has been provided by others about how they children are mature beyond their years. The custodial parent advised the children the court ordered them to spend time with the other parent, physically walked the children to the exchange location (as ordered) and stayed outside (as ordered). But because the children refused to stay with the other parent (and because the judge refused to speak to the children) the custodial parent was found in contempt and ordered to pay the parent who the children have informed other professionals (who were refused to allow to testify by the court) attorney’s fees since the children listened to her about everything else (going to school, to the doctor’s, etc.,). Because they were not willing to go to the other parent, that parent could have done more and the custodial parent willfully disregarded the court order.

This is why, in many cases, I tell my clients it does not matter if the court got it right or wrong — you need to comply with the order even if it ultimately has a negative effect on your children because if you don’t, the outcome could be worse than paying the other side’s attorney’s fees. That is, the non-custodial parent (who may be physically and/or mentally harming the children) can become the custodial parent.

In that scenario, wouldn’t you prefer to ensure your children are safe by at least limiting the time the children have with a possible abuser instead of providing the abuser with even more time because you believed you were protecting your children (which in reality you were, but unfortunately, court and reality does not always connect the dots).

That’s why working on a settlement outside of court is likely the best possible solution to protect everyone involved.

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