Hello moms. In this article about custody battle tips for mothers, we are going to tell you something you deserve to know – the blunt truth. Custody battle tips for mothers starts with:
- the truth about the California family law system,
- its sometimes dysfunctional nature,
- the useless nature of the victim mentality, and
- how courage is one key to success.
In custody battle tips for mothers, I will show you how a fact driven, logical and straight line approach that focuses on the child’s best interest is the most efficient means to success.
Custody battle tips for mothers will also teach you to stop feeling and start thinking. This is what I stated when Lindsey Ellison interviewed me for an article she wrote on the Huffington Post about the “secret to divorcing a narcissist.”
Strap yourself in because our California child custody battle tips guide for mothers is about to begin.
Custody battle tips for mothers starts with understanding the family law system
If custody becomes a battle, the first thing moms should understand is the lay of the land. First, there are only two ways a custody case finalizes:
- The first is through a settlement. Since you are reading this, we assume a settlement is not likely, or
- The second is through a family law judge making the decisions.
So when evaluating battle tips, realize that the forum (the family court) will have some limitations.
The family law system has limitations
Let’s use the family law court in Orange County as an example although what we write is what we believe applies to any busy California family court. What limitations exist?
- Your case will be among other cases on the family law judge’s calendar on a court date. “Specially set” cases is one exception we see in Orange County but even that is hit and miss. Specially set cases are those that are set with the understanding the hearing will start on that date. However, that does not guarantee the judge will dedicate an entire day or entire half day to your case.
- The family law judge has likely not read all of the paperwork on the case days or weeks in advance. He or she also likely does not know your case’s facts cold. Unfortunately, a family law judge may sometimes learn your case very close to hearing or even during its presentation.
- Not every family law judge will have the same level of family law experience, knowledge, temperament or patience. Remember that a judge is elected or appointed to the bench. They don’t go through years of family law judge training before they become family law judges. Many of the experienced ones learned on the job or used to practice family law. Some of them may have never practiced family law a day in their career as a lawyer. Fortunately, in Orange County, we are blessed with some very intelligent judges.
- The judge has likely asked your attorney and that of the other parent to give a time estimate for the hearing. Most judges expect the lawyers to stick to that time frame. Some judge are more flexible than others. That means the judge may impose time limitations on the hearing’s duration.
- The family law judge will likely focus on the big picture, the most relevant facts and what is in the child’s best interest,. The family law judge will likely not focus on every detail that one or both parents think is important. Sometimes, parents find criticism in just about everything the other parent does.
- Words like a “children’s best interest” is not a black of white formula. The big D is not divorce, it is “discretion.” That is what the family law judge has when making decisions on child custody issues.
That is why the first custody battle tip for mothers is understanding there are some limitations in the California family law judicial system. Those limitations affect everyone, not just you.
Understand financial limitations that may exist
We are highly experienced and knowledgable child custody attorneys. And in all of the years we have practiced law, we have never had a client that had endless resources to litigate their child custody case. Some may have a much greater ability to pay than others. Perhaps a parent on the other side has the same, greater or less ability to afford attorney’s fees. All of these are factors to some extent on custody battle tips for mothers. We discuss the issue of attorney’s fees later in this custody battle tips guide.
You must have courage when you face a custody battle
It will not work and all of the custody battle tips out there will not help you if you do not have the courage to do the right thing consistent with the children’s best interest.
What do we mean by that? Here are 3 custody battle tips for mothers about courage.
- Don’t give up on what is in your children’s best interest,
- One of the most important custody battle tips for mothers is “have courage.” If a mother has been the victim of physical, emotional and even financial abuse, she may feel beaten down. Mothers in such situations sometimes come to our family law firm feeling distraught and disillusioned. But that is exactly when we help those moms step up and gain the courage to do the right thing for their children. Remember abusers are bullies and bullies of any gender are ultimately insecure and cowards. Many of them, when confronted by their abuse and held accountable for it, collapse under the pressure. But to confront them and hold them accountable requires a mother to take action – hire an experienced and knowledgable family law attorney and seek court orders consistent with the children’s best interest.
- Realize there are no guarantees or assurances things will go your way. If you had those guarantees, the decision to seek proper orders is easy. But that is not what courage really is. Courage is doing the right thing for your children and making the sometimes difficult decisions.
Six custody battle tips for mothers when separating from the father
Separation usually precedes divorce. Some spouses can handle living together while they go through a divorce. Most of them cannot. Here are six custody battle tips for mothers when separating from the father:
- Start consulting with family law attorneys immediately. Get an attorney early in the process. Getting advice at this stage can set up the entire case for a smoother process and more successful end.
- Be careful with your documented communication with the other parent. Text messages and emails may be used in court. Stating things in an emotional state is usually not wise.
- Don’t be bullied into doing what the father wants to do if you do not reasonably believe what he wants is in the children’s best interest. That is why you should seek the advice of an experienced family law attorney immediately – so you understand your options.
- Do not assume you have to move out just because the father demands you do so, even if the father owns the home you live in (regardless of whether or not you are married). An experienced family law attorney can provide you with your options.
- If the father is moving out and you are concerned about your financial ability to pay things such as a mortgage, remember that you have an option to seek temporary support, whether child, spousal or both depending on your facts. Learn about child support and spousal support in California by reading the following guides:
- Do not attempt to represent yourself unless there is no other reasonable option. Even if there is no way you can afford an attorney, many of our California family courts have a self-help center to guide you through the paperwork. Use it.
Seven custody battle tips for mothers when obtaining temporary orders
What is a temporary order?
The temporary order is the one you obtain while the divorce or parentage case is pending. It is not the one at the end of the case that become a judgment.
To learn more about temporary orders, check out our guide on the California divorce process.
Custody battle tips for temporary orders.
- Get temporary court orders quickly if the father is likely to take the children and not return them or otherwise play games with parenting time.
- When thinking about what custody and visitation orders to seek, always think about the children’s best interest. Think about what would promote their stability, health, safety, their education needs and general welfare.
- Don’t take extreme positions when you seek temporary orders unless they are justified. Ask for sole legal custody and supervised visits when the child is or will be in danger. Those include for example when the father is physically or seriously emotionally abusive, has a substance abuse addiction that places the child in danger, or other circumstances. Asking for it as a starting point for negotiations or to use the child as leverage may blow up in your face and you may be labeled a restrictive gatekeeper as a result. In some cases, if you make willfully false allegations of abuse, you may lose custody.
- Check out our article on divorcing an alcoholic to learn more about how to handle a dissolution when faced with this addiction.
- Once you obtain temporary orders, stick to them. Getting orders and then allowing significant deviations from them with a difficult father generally backfires by creating a new status quo or further contention. Minor deviations and reasonable flexibility is fine but think about it – there is a reason you wanted court orders.
- Try not to separate siblings even if there is an age difference. The bond between siblings is too important.
- Always be truthful in the declaration you sign when you seek a temporary order. Statements under oath attached to the request for order must be truthful under penalty of perjury. This is not a game being played and contrary to popular belief, the liar doesn’t generally win. The liar loses credibility and once credibility is lost, it is very difficult to get it back.
- If there has been domestic violence, as defined by the domestic violence prevention act, and you need protection, those temporary orders you seek should include a restraining order. Do not assume things will simply work themselves out. Your safety and that of your children should be your highest priority.
Five custody battle tips for mothers when obtaining trial orders
What is a trial? A trial is the final hearing in a divorce or parentage case that leads to a judgment. To learn more about trials, read our guide on California divorce trials.
Custody battle tips for trial orders
- How are the temporary orders going? Is it working out well? If so, consider whether it makes sense to ask for the temporary orders to become trial orders.
- Do not get yourself caught up in minutia. An hour or so a week here or there may not be worth spending thousands and sometimes tens of thousands of dollars in attorney fees. Think about the big picture even if the father is caught up in this type of minutia and nonsense.
- Regularly communicate with your family law attorney about the trial and do so early and often. Know the following:
- what you are seeking,
- why you are seeking it,
- the arguments that you have and the father has,
- the potential outcomes, and
- the budget to get your case through trial.
- Make settlement offers even if you do not believe the father will accept it. You and your lawyer should be proactively trying to settle the case on reasonable terms. Even if the case does not resolve, those documented settlement offers can help you when you seek attorney fees against the father for unreasonable positions he has taken. You should become familiar with Family Code section 271.
- Trial will likely include your testimony under oath and in court. Make sure you have read all of the court paperwork and are familiar with what you will be testifying about. Set the meeting with the attorney to discuss your testimony so you are prepared.
Three custody battle tips for mothers when obtaining post judgment modification orders
What is a post judgment modification?
After a trial or settlement and a judgment that happens as a result, a party may decide to seek a modification of custody, visitation (parenting time) or both. There must be proper grounds to seek such a modification.
Custody battle tips for post judgment orders
- Know the difference between a post judgment modification of child custody and a post judgment modification of visitation, which is also called parenting time. The legal standard is different for each one. Your family law attorney can explain this to you.
- Do not jump into a post judgment modification unless and until you know you have proper grounds for it. Being unhappy with a court’s decision that led to a judgment is not a proper basis. In some circumstances, you may need to show a significant change of circumstance since the court’s order. The legal standard can get complicated. Do not try to navigate this by yourself.
- Unless there is an emergency, there is often wisdom in trying to resolve post judgment modification issues before filing a request for order. Settlement discussions may lead to resolution. But even if they do not, you have at least documented your attempt to resolve the issues before you seek a court order. This may benefit you when you ask the court for attorney’s fees against the other party.
Five custody battle tips for mothers when the father is abusive toward the child or children
Abuse can come in several forms. In custody battle guide for mothers, we focus on physical or serious emotional abuse. This guide does not discuss issues such as getting social services or law enforcement involved. That is outside the scope of this guide.
If you reasonably suspect the father is being abusive toward the children and you decide to seek family law court orders, here are some custody battle tips.
We also encourage you to read our article on divorcing an abusive husband.
Custody battle tips when dealing with child abuse
- Take child abuse seriously. Do not assume the abuse will simply stop. The father or any parent that physically or emotionally abuse as a child will typically continue to inflict that abuse.
- If the abuse is documented through emails, text messages or other forms, make sure you bring that to your attorney’s attention. Such documentation can be used in court to show the nature and extent of the abuse.
- If there are witnesses to the abuse, they should be subpoenaed to the hearing. Your lawyer can assist you with this.
- If the abuse presents an imminent threat of harm to the children, consider seeking emergency orders. Some emergency family law orders may need to be sought without notice to the other parent.
- Do not ever lie, willfully understate or willfully exaggerate the nature or extent of child abuse. Any of these can get you into trouble.
Custody battle tips for mothers in custody move away cases
What is a move away case?
A move away case is generally one where one parent seeks to move the children to another county, state or even out of the country against the wishes of the other parent. We wrote an article titled “how do you win a child custody move away case in California” you will enjoy if you want to learn more about child custody move away cases.
What are some custody battle tips for mothers in move away cases? Let’s take a look.
Seven custody battle tips for mothers when seeking a move away
For the purposes of this guide, we will assume the mother is seeking the move away. Here are some custody battle tips for mothers who seek to move with the child.
- Are you familiar with the current court order? Does it state what must happen before a move? Is it completely silent on the subject? Either way, you must present the order to an experienced family law attorney to tell you if your order addresses the move away situation and how.
- Be ready to present the court with specifics on the following:
- where the child will live,
- where the child will go to school,
- how and why his or her life there compared to here will be more consistent with the child’s best interest, and
- additional facts as to why it is in the child’s best interest to move.
- We believe that rarely can a self represented person properly present a move away case. Get legal help. Get experienced family law representation. Due diligence before you file the move away is critical.
- Through experienced legal representation, get familiar with the legal standard for your specific move away case. It is not the same in every case. If you do not understand the legal standard that applies to your case, you will not know what facts are important.
- Are you aware of what may happen if your move away is denied? If not, get legal advice before you file anything. In our experience, California family law judges assume you are moving with or without the child when you file a move away case. That means if the court denies your move away, the court then has to assume you are moving without the kids. That means the father may get custody of the children. Is that a risk worth taking?
- On this issue, there is California law on both sides of this argument but what we have written above has been the more common approach in our experience. That does not guarantee anything in your case. Get legal advice about your specific situation.
- Have you prepared yourself for the legal battle that may come with the move away? You better do so. Move away cases can be some of the most high conflict custody cases out there, right next to abuse cases.
- Trying to settle the move away issues even before you file is sometimes a good idea. That does depend on the case’s facts. Even if it does not settle, you may be able to flesh out what the father’s opposition will be.
How can mothers avoid custody battles?
To take you a bit outside the box, here are some custody battle tips for mothers to keep them out of custody battles.
- Don’t be a restrictive gatekeeper who unreasonably frustrates the father’s parenting time. It is one thing to be protective. It is quite another to take unreasonable positions and restrict the father’s time for reasons that have little to do with the children’s best interest. That type of conduct may work against you when the family law judge gets the case and makes orders.
- Do not alienate the children from the father. Parental alienation is a form of emotional abuse.
- Fighting fire with fire is foolish. Don’t do it. “If he is going to lie, so am I.” Those words or anything close to it should never come out of a mother’s mouth in a custody battle. Truth is always the best policy in family court. Remember moms, you are signing that declaration under penalty of perjury.
- Document misconduct. If the father is engaging in misconduct such as violating the court order, tell your lawyer about it. That way, your lawyer can document it if it is important and that can become relevant later on in court.
- Don’t violate court orders. It is not worth it. The other parent may file a family law contempt action against you. A parent held in contempt may face fines, community service or even jail.
- Do not get yourself caught up in emotions that cause you to lose focus on what is important. Yes, we get it, sometimes you feel like “mama bear” and very protective of the children. But anger at the father’s infidelity, his failures as a husband or partner or issues that have nothing to do with the children’s best interest need to be set aside. This isn’t about you. It’s about those children and that is all the family court cares about in child custody cases.
- Your gender is irrelevant. Do not walk into a California family court thinking it will make any difference. California law expressly forbids courts to make custody decisions based on gender.
- Attorney’s fees and costs are available to you to seek against the father if the father has a greater income and/or greater access to funds to pay for fees. That means you do not have to lose a war of attrition to the father who can outspend you. Read our article on Family Code 2030 to understand how a spouse going through a divorce and custody case can seek fees against the father in certain situations. A similar set of laws exist for unmarried parents.
Want some additional reading?
Check out these great articles and guides:
- What is a 730 evaluation? We answer that question here. Read this article because it is important to understanding the private child custody evaluation process (often called a 730 evaluation) that often happens in custody cases.
- California child custody laws: This is a very comprehensive guide on California child custody. Many of those who read it have reported to me that not only did they love it but they gained a much better understanding of California custody law and procedure as a result.
- 8 reasons to lose custody of a child: Yes, it is possible to lose custody of a child and here are 8 common and surprising ways it could happen.
- We should not forget our article on how to get custody as a mother.
An important reminder for moms
This article is not legal advice nor is it intended to apply to your specific situation. Please consult with an experienced California child custody attorney for legal advice you need. This article is solely intended for those who have a child custody case in California. I know you probably knew that but it is worth making sure.