Preparing a Parent for Trial

All family lawyers know that a custody trial is about what is best for the children. Parents may think they understand this, but often do not “own” the concept because they are so obsessed with their own problems. The hurt and anger over what has happened clouds their thinking. Facing the possibility of part-time parenting or substantially reduced parenting time, they have difficulty focusing on what is best for the children. This is not to imply that the parents do not care about their children's needs, but getting them to express their concerns for their children instead of using court time to vent, tattle, bicker and complain, is often a formidable task.

Preparing a parent for a custody trial includes, of course, the basic fundamentals of testifying. That means how to listen, how to answer only the question asked, the difference between direct and cross, how to behave, etc. Once that foundation is in place, it is necessary to go to the next step of preparing a parent to testify persuasively about the crucial information the court needs in order to make a custody decision.

Three Areas of Preparation

In the course of getting scores of parents ready to testify in custody wars, I have, over time, discovered three areas of preparation that, in my view, should not be missed in order to produce competent and confident witnesses. Parents need guidance on attitude, behavior, and basic custody topics they should be prepared to discuss. Most lawyers manage to include parts of these three areas when preparing their clients for trial, but frequently, the approach is scattered. The instructions are fine as far as they go, but there are holes in the preparation that, if stumbled into, will certainly trip up and unnerve a witness.

Here are the things not to forget to tell your client/parent/witness involved in a custody dispute.

Attitude

No matter what the specific issues in the custody dispute, in evaluating each parent, the court will be looking for the following attitudes:

• Focus on what is best for the children. This should be the basic and underlying attitude in the entire custody case. What is best or most convenient for the parent must be kept to a minimum. We should not hear how the custody or visitation arrangement is not fair because one parent has more time with the children than the other. Rather, we need to hear things like the schedule is too disruptive to the children's well-being because it includes too many transitions between parents. Or we should hear that the trips between the two homes during the week are too long when the children have to do homework and get a good night's rest.
• Recognition of the children's need for both parents. Parents need to understand that attempts to cut out the other parent or to limit the children's contact with that parent will be looked upon unfavorably by the court. No matter how one parent feels about the other, the children cannot be drawn into a their battle. It is acceptable for one parent not to want to have anything more to do with the other parent than is necessary to raise the children cooperatively. It is not acceptable for a parent to sponsor ill feelings in the children.
• Introspection. The ability to recognize any previous mistakes in parenting is helpful. An insightful parent is one who can say things like, “I've given that a lot of thought and now I realize that although I told John it was time to visit his father, I would do it in such a sad way he would feel guilty leaving me.” The desire to correct past mistakes in the future is better still.
• Sense of Fairness. There should be some reluctance to say bad things about the other parent. Rather than going on the attack, it is better simply to report bad things about the opposing spouse. An even tone of voice works best. There should be a greater emphasis on what the parent can offer to the children rather than what the opposing spouse has done wrong. It is not necessary to throw bouquets to the opposing spouse, but if this person has done some good things with the children, it is only fair to admit them.
• Willingness to Be Flexible. Usually it is best not to close the door on proposals by the opposition at trial, unless of course the suggestion is totally outrageous. A parent who is willing to consider alternatives appears very reasonable. The caution here is never to make any deals regarding custody or visitation. If a proposal is offered in the form of “Would it be fair to … ? or Would you be willing to … ?” it is wise to say, “I would have to talk to my lawyer to see if this is a good idea.” Flexibility about future issues is also a good idea. For example, if a mother were asked: “Do you plan to go back to work?” and the answer has not been previously determined, it is not necessary to be forced into any agreement. It is better to say that the future circumstances are not known so it would be impossible to answer that question now.

Behavior

Trial is not the place to leave a one-sided impression showing only how hurt or angry or wronged the parent is. This is the time for a parent's best qualities to be seen. If a parent seeking custody is incapable of controlling emotions and cannot behave appropriately in court, it is not a big leap to conclude that this is a person who could lose control with the children. One matrimonial lawyer for whom I work frequently asks enraged parents who are venting on the witness stand: “Is this the way you behave at home?”

• Emotional control to a reasonable degree. This is not meant to imply that a parent should be without feelings. It means that feelings and passion must be controlled and balanced. Sadness and tears are okay. A parent dissolved into a puddle on the floor throughout an entire testimony is not. Anger, sarcasm, and hostility rarely work, whether toward the opposing attorney or opposing spouse. This doesn't mean a parent needs to be a doormat. Firmness is fine. It's all about making sure emotions don't overshadow common sense and judgment. other parent. At trial it is not advisable to mimic the nastiness with which a comment was made. One spouse can report what the other spouse said and that he or she “shouted,” or “screamed,” but it should be a statement of the words. A demonstration of another's bad behavior can backfire and serve to show that the demonstrator is equally capable of behaving badly.
• Emotional control in reporting comments. Even when a parent manages to keep emotions in check, bad feelings leak out when quoting a negative remark made by the other parent. At trial it is not advisable to mimic the nastiness with which a comment was made. One spouse can report what the other spouse said and that he or she 'shouted,' or 'screamed,' but it should be a statement of the words. A demonstration of another's bad behavior can backfire and serve to show that the demonstrator is equally capable of behaving badly.
• Helpful and cooperative. When being questioned by the other side, a parent who gives straightforward answers in a helpful manner appears rational and credible. One who plays cat and mouse with the opposing attorney or is in any way troublesome in cross-examination will only succeed in establishing how difficult he or she may be to deal with. With custody or visitation schedules at stake, it is not wise to be seen as an uncooperative person.

Basic Custody Topics

Preparing parents to handle common custody topics, whether or not the topics will be included in the direct or cross examination, helps them think about what is important in custody decisions rather than wallow in complaints about the other parent. Clarity on the core topics provides a framework upon which most answers to specific questions can later be hung. Although it is impossible to anticipate all questions that could be asked of a parent at trial, covering the following topics can provide a good foundation.

• Custody/visitation request. “What custody/visitation arrangement are you asking for?” The client needs to be able to state clearly the request and perhaps even use a chart if the schedule is complicated. Many parents have less trouble with this request for a plan. It's the next questions that some parents find difficult to answer clearly: “Why is this best for the children?” or, “What will happen if you don't get the custody/visitation you are asking for”? A parent's custody or visitation application is a subject to which, in theory, the parent should have given a lot of thought. The answers should not be left for last minute inspiration or surprise at trial. A parent needs to be able to explain how the other parent's custody or visitation proposal will have a negative impact on the children. Your client should be prepared to offer a well-thought-out and workable parenting plan that demonstrates the benefits to the children of the requested schedule. The plan should include not only the present, but also some thoughts about the future and how the plan might operate. Will changes be necessary as time goes on? Get your client to think. Parents must understand that what they want or believe is fair to them is not particularly useful in determining the best arrangement for the children. Try to have your client express as many reasons in support of the custody/visitation request as possible. Then select the good ones and review them enough with your client so they are comfortable.
• Relationship with the children. “Describe each of your children.” Or “Describe your relationship with each of your children.” What is required in answering these questions is insight and objectivity. The parent should be able to describe the children in ways other than, “We have a great relationship.” The court needs to hear details. What makes the relationship great? It's important not to attempt to paint a picture of perfect children and flawless relationships. Do any of us know perfect children and perfect parent/child relationships? Such claims don't demonstrate awareness or candor.
• Parenting skills of both parents. The parent should be able to describe what the responsibilities of each parent have been since the births of the children. Your client needs to be able to explain what each parent has done for and with the children. If the responsibilities were shared with a nanny or any others, the parent needs to clarify who did what and when. Trial should not be the first time a parent thinks about his/her parenting skills. It should not be the first time thinking about any concerns regarding the skills of the other parent. This is pre-trial work. Asking a parent to think carefully ahead of time can uncover worthwhile examples and details. A word should be said here about “Sudden Superdad Syndrome.” If you represent a father who is looking for custody or substantial visitation, in most situations, attempts to convert dad into mom lack credibility. Tone down the image that the father was really the mother. It rarely succeeds, unless in rare circumstances, it is the historical truth.
• Communication between parents. Whatever the communication issues between parents, whether they can or cannot communicate, the parent needs to be able to give examples that support the statements of ability or lack of ability to communicate and how these issues will affect the custody/visitation award. Divorce proceedings are not conducive to a display of parental good qualities. The participants are often too angry. Preparation of parents well ahead of trial will help them understand the issues on which the courts concentrate. They will be better able to focus testimony on the things that are important and leave out the trivia that only they feel the need to talk about. Every parent in a custody case must be made fully aware that the ultimate question in the mind of the court is, “Why should I award custody to you?” The answers throughout the testimony, supported by appropriate behavior, must ring of thoughtfulness and sincerity. The notion must be conveyed that by awarding custody to your client, the judge can sleep more soundly than by awarding it to the other spouse.

All family lawyers know that a custody trial is about what is best for the children. Parents may think they understand this, but often do not “own” the concept because they are so obsessed with their own problems. The hurt and anger over what has happened clouds their thinking. Facing the possibility of part-time parenting or substantially reduced parenting time, they have difficulty focusing on what is best for the children. This is not to imply that the parents do not care about their children's needs, but getting them to express their concerns for their children instead of using court time to vent, tattle, bicker and complain, is often a formidable task.

Preparing a parent for a custody trial includes, of course, the basic fundamentals of testifying. That means how to listen, how to answer only the question asked, the difference between direct and cross, how to behave, etc. Once that foundation is in place, it is necessary to go to the next step of preparing a parent to testify persuasively about the crucial information the court needs in order to make a custody decision.

Three Areas of Preparation

In the course of getting scores of parents ready to testify in custody wars, I have, over time, discovered three areas of preparation that, in my view, should not be missed in order to produce competent and confident witnesses. Parents need guidance on attitude, behavior, and basic custody topics they should be prepared to discuss. Most lawyers manage to include parts of these three areas when preparing their clients for trial, but frequently, the approach is scattered. The instructions are fine as far as they go, but there are holes in the preparation that, if stumbled into, will certainly trip up and unnerve a witness.

Here are the things not to forget to tell your client/parent/witness involved in a custody dispute.

Attitude

No matter what the specific issues in the custody dispute, in evaluating each parent, the court will be looking for the following attitudes:

• Focus on what is best for the children. This should be the basic and underlying attitude in the entire custody case. What is best or most convenient for the parent must be kept to a minimum. We should not hear how the custody or visitation arrangement is not fair because one parent has more time with the children than the other. Rather, we need to hear things like the schedule is too disruptive to the children's well-being because it includes too many transitions between parents. Or we should hear that the trips between the two homes during the week are too long when the children have to do homework and get a good night's rest.
• Recognition of the children's need for both parents. Parents need to understand that attempts to cut out the other parent or to limit the children's contact with that parent will be looked upon unfavorably by the court. No matter how one parent feels about the other, the children cannot be drawn into a their battle. It is acceptable for one parent not to want to have anything more to do with the other parent than is necessary to raise the children cooperatively. It is not acceptable for a parent to sponsor ill feelings in the children.
• Introspection. The ability to recognize any previous mistakes in parenting is helpful. An insightful parent is one who can say things like, “I've given that a lot of thought and now I realize that although I told John it was time to visit his father, I would do it in such a sad way he would feel guilty leaving me.” The desire to correct past mistakes in the future is better still.
• Sense of Fairness. There should be some reluctance to say bad things about the other parent. Rather than going on the attack, it is better simply to report bad things about the opposing spouse. An even tone of voice works best. There should be a greater emphasis on what the parent can offer to the children rather than what the opposing spouse has done wrong. It is not necessary to throw bouquets to the opposing spouse, but if this person has done some good things with the children, it is only fair to admit them.
• Willingness to Be Flexible. Usually it is best not to close the door on proposals by the opposition at trial, unless of course the suggestion is totally outrageous. A parent who is willing to consider alternatives appears very reasonable. The caution here is never to make any deals regarding custody or visitation. If a proposal is offered in the form of “Would it be fair to … ? or Would you be willing to … ?” it is wise to say, “I would have to talk to my lawyer to see if this is a good idea.” Flexibility about future issues is also a good idea. For example, if a mother were asked: “Do you plan to go back to work?” and the answer has not been previously determined, it is not necessary to be forced into any agreement. It is better to say that the future circumstances are not known so it would be impossible to answer that question now.

Behavior

Trial is not the place to leave a one-sided impression showing only how hurt or angry or wronged the parent is. This is the time for a parent's best qualities to be seen. If a parent seeking custody is incapable of controlling emotions and cannot behave appropriately in court, it is not a big leap to conclude that this is a person who could lose control with the children. One matrimonial lawyer for whom I work frequently asks enraged parents who are venting on the witness stand: “Is this the way you behave at home?”

• Emotional control to a reasonable degree. This is not meant to imply that a parent should be without feelings. It means that feelings and passion must be controlled and balanced. Sadness and tears are okay. A parent dissolved into a puddle on the floor throughout an entire testimony is not. Anger, sarcasm, and hostility rarely work, whether toward the opposing attorney or opposing spouse. This doesn't mean a parent needs to be a doormat. Firmness is fine. It's all about making sure emotions don't overshadow common sense and judgment. other parent. At trial it is not advisable to mimic the nastiness with which a comment was made. One spouse can report what the other spouse said and that he or she “shouted,” or “screamed,” but it should be a statement of the words. A demonstration of another's bad behavior can backfire and serve to show that the demonstrator is equally capable of behaving badly.
• Emotional control in reporting comments. Even when a parent manages to keep emotions in check, bad feelings leak out when quoting a negative remark made by the other parent. At trial it is not advisable to mimic the nastiness with which a comment was made. One spouse can report what the other spouse said and that he or she 'shouted,' or 'screamed,' but it should be a statement of the words. A demonstration of another's bad behavior can backfire and serve to show that the demonstrator is equally capable of behaving badly.
• Helpful and cooperative. When being questioned by the other side, a parent who gives straightforward answers in a helpful manner appears rational and credible. One who plays cat and mouse with the opposing attorney or is in any way troublesome in cross-examination will only succeed in establishing how difficult he or she may be to deal with. With custody or visitation schedules at stake, it is not wise to be seen as an uncooperative person.

Basic Custody Topics

Preparing parents to handle common custody topics, whether or not the topics will be included in the direct or cross examination, helps them think about what is important in custody decisions rather than wallow in complaints about the other parent. Clarity on the core topics provides a framework upon which most answers to specific questions can later be hung. Although it is impossible to anticipate all questions that could be asked of a parent at trial, covering the following topics can provide a good foundation.

• Custody/visitation request. “What custody/visitation arrangement are you asking for?” The client needs to be able to state clearly the request and perhaps even use a chart if the schedule is complicated. Many parents have less trouble with this request for a plan. It's the next questions that some parents find difficult to answer clearly: “Why is this best for the children?” or, “What will happen if you don't get the custody/visitation you are asking for”? A parent's custody or visitation application is a subject to which, in theory, the parent should have given a lot of thought. The answers should not be left for last minute inspiration or surprise at trial. A parent needs to be able to explain how the other parent's custody or visitation proposal will have a negative impact on the children. Your client should be prepared to offer a well-thought-out and workable parenting plan that demonstrates the benefits to the children of the requested schedule. The plan should include not only the present, but also some thoughts about the future and how the plan might operate. Will changes be necessary as time goes on? Get your client to think. Parents must understand that what they want or believe is fair to them is not particularly useful in determining the best arrangement for the children. Try to have your client express as many reasons in support of the custody/visitation request as possible. Then select the good ones and review them enough with your client so they are comfortable.
• Relationship with the children. “Describe each of your children.” Or “Describe your relationship with each of your children.” What is required in answering these questions is insight and objectivity. The parent should be able to describe the children in ways other than, “We have a great relationship.” The court needs to hear details. What makes the relationship great? It's important not to attempt to paint a picture of perfect children and flawless relationships. Do any of us know perfect children and perfect parent/child relationships? Such claims don't demonstrate awareness or candor.
• Parenting skills of both parents. The parent should be able to describe what the responsibilities of each parent have been since the births of the children. Your client needs to be able to explain what each parent has done for and with the children. If the responsibilities were shared with a nanny or any others, the parent needs to clarify who did what and when. Trial should not be the first time a parent thinks about his/her parenting skills. It should not be the first time thinking about any concerns regarding the skills of the other parent. This is pre-trial work. Asking a parent to think carefully ahead of time can uncover worthwhile examples and details. A word should be said here about “Sudden Superdad Syndrome.” If you represent a father who is looking for custody or substantial visitation, in most situations, attempts to convert dad into mom lack credibility. Tone down the image that the father was really the mother. It rarely succeeds, unless in rare circumstances, it is the historical truth.
• Communication between parents. Whatever the communication issues between parents, whether they can or cannot communicate, the parent needs to be able to give examples that support the statements of ability or lack of ability to communicate and how these issues will affect the custody/visitation award. Divorce proceedings are not conducive to a display of parental good qualities. The participants are often too angry. Preparation of parents well ahead of trial will help them understand the issues on which the courts concentrate. They will be better able to focus testimony on the things that are important and leave out the trivia that only they feel the need to talk about. Every parent in a custody case must be made fully aware that the ultimate question in the mind of the court is, “Why should I award custody to you?” The answers throughout the testimony, supported by appropriate behavior, must ring of thoughtfulness and sincerity. The notion must be conveyed that by awarding custody to your client, the judge can sleep more soundly than by awarding it to the other spouse.