Posted by eric_k_johnson on January 6, 2012
I recently had an attorney inform me of his “strategy” for child custody in divorce cases. He said, “Always go for the maximum, then you have leverage for negotiation in other areas.” This attorney included alimony, debts, property, and—most importantly—child custody/support.
Alimony, debts, and property are financial issues, and if the opposing party decides to be extremely unreasonable (such as a husband who sought alimony equal to 45% of his wife’s income for the rest of his life for a ten year marriage—no joke!), it might not bode well for settlement negotiations, but that is a separate issue with weaker consequences. The truly egregious problem in this attorney’s argument was his demand for sole custody of the child(ren) in every case as a matter of “strategy.”
Demanding sole custody of children in every case, with the intent to gain negotiating leverage, is wrong on many levels. This “used car salesman” approach is simply inapt in child custody settings.
Children are not property. The used car salesman approach assumes the child is a piece of property who can be divided up, traded, and who has a certain “value” to the other parent. But children are not property to be bartered for higher alimony and/or child support. This is should have to be explained to you or your spouse, yet this situation occurs so frequently I am forced to discuss it. If you are thinking about asking for sole custody because you want more money, shame on you! Think about your children’s interests when negotiating child custody, not what having the children can do for you.
Custody is not Win/Lose. The used car salesman approach assumes a zero-sum game, where one party “wins,” and the other “loses.” With the car analogy, if the seller gets the buyer to pay more than the car is truly worth, that’s a win for the seller, a loss for the buyer. But children aren’t being bought and sold or traded (or at least shouldn’t be).
One parent wining the child custody question does not require the other parent to lose. Unless one parent is unfit and dangerous (and face it folks, drinking, smoking, and not attending church does not make a parent unfit) focus on a custody award that benefits both children and parents alike. You wouldn’t want to be cut off from your relationship with your child, so why seek to cut off your estranged spouse? Do unto others as you would have them do unto you.
You and your spouse may have different views of parenting, but if both of you are good and capable parents, share custody; it’s what your children want, by and large. The children will almost certainly suffer after the divorce, not because one parent is unfit but because both of you are getting a divorce. It’s difficult for everybody involved, but rather than exacerbate the problem with selfish and unrealistic gamesmanship, focus on a mutually beneficial solution for the whole family. I realize this is not what you expect to see from a divorce attorney, but I am a spouse and a parent first, and was before I became a lawyer. My success as a lawyer pales in comparison to how I perform as a husband and father. Is that your creed too? If not, it should be.
If the parties cannot negotiate a settlement, a judge will decide the matter. The used car salesman analogy assumes each party can discontinue the relationship at will. If the salesman offers a 1987 Mazda with a cracked transmission for $20,000, you can laugh in his face and walk away. Further, if you offer $3,000.00 for a classic Ferrari in cherry condition, you may be tossed out the door.
But if you cannot agree to child custody, you can’t look through the classified ads for a better deal. Instead, you will end up with a state employee (i.e., the judge) deciding who will take care of your child. As much as you might find it hard to believe, the court has no real knowledge of or burning or lasting interest in you or your child; courts only need to make a decision that won’t be overturned on appeal and then they move on to the next case. Don’t leave your custody decision in the hands of the court, if you can reasonably and in good conscience avoid it.
Being reasonable on issues of child custody makes you the more credible parent. Let your spouse’s scorched-earth child custody position prove to the court he or she has no interest in playing fair. Let your spouse try to justify his/her selfish motives in the face of the evidence to the contrary. Meanwhile, assert and build your case for a mutually beneficial solution. Who do you think the court is going to believe and favor more? Seeking what’s best for the children and parents alike reduces the likelihood of future conflict between ex-spouses. Show the court that you are not playing games and don’t want protracted litigation, and the court is far more likely to take “your side” because your side is on the side of fairness and the best interest of the children.
Seeking sole custody does not inherently mean you are unreasonable. But if you are thinking of seeking sole custody because you want to leverage, think again.
