Psychological Fundamentals of Aggressive Custody Litigation

The Decision-Making Team

Aggressive custody litigation begins with the decision to engage in it. This decision may come about for a variety of reasons, but the best reason is when the client has rightfully concluded that it is the most appropriate way to secure the best possible future for his or her offspring. In coming to such a conclusion, the client should have a realistic expectation of what can be achieved and the attorney should offer a practical game plan for how to achieve it.

In most cases, there is a long and winding road between the initial decision to litigate aggressively and a court order specifying the sought-after custody arrangement. An ever-increasing density of information will develop, and an active stream of decisions will have to be made by client and attorney. For the litigator, decision-making under pressure comes with the territory and the process itself is quite familiar. For the client, however, the custody litigation process is typically unfamiliar, distinctly stressful, and at times, painfully preoccupying (see Ira Daniel Turkat, Custody Battle Burnout, 28 AM. J. FAM. THER. 201 (2000)). Clients making critical decisions under these conditions benefit from the best input possible.

To facilitate management of the multitude of decisions to be made in a complex case, a solid litigation team is essential. Obviously, the client is a pivotal member of that team. No matter how small or large the team may be ' from solo practitioner to large law firm ' its members must function well together, especially when things get hectic. Where appropriate, forensic accountants, private investigators, and related support personnel may need to be called upon to contribute significantly to the litigation effort. At times, particularly in tough battles, the team may choose to improve its capabilities by engaging a matrimonial litigation strategist to shrewdly guide how to trap the other side, slice up adversarial witnesses, develop case strategy and prepare other high-level litigation maneuvers. While experts with such talent are rare in family law, in certain cases they may prove to be invaluable.

Ultimately, the decision to litigate aggressively over custody means a commitment of the highest order. As such, in most contests of this kind, a comprehensive approach to the litigation should be undertaken to improve the likelihood of a favorable outcome.

No Stone Unturned

In hotly contested custody battles, the obstacles facing the client may multiply significantly, ranging from a stream of minor irritants, to intensely problematic roadblocks, to devastating events. If managed correctly, the litigation effort is enhanced.

To this end, the value of taking a 'no-stone-unturned' approach should not be underestimated. Here, even minor leads should be considered as possible bases for gaining an advantage. To illustrate, take the following example of a 'minor irritant' that was turned into an effective courtroom influence in a custody battle.

During hostile matrimonial proceedings, a custody litigant (petitioner) unexpectedly began receiving issues of a magazine that the litigant had not ordered and historically detested openly. The opposing litigant (respondent) was well aware of the petitioner's disdain for this particular magazine. As such, the respondent was viewed as the most likely culprit. Taking a 'no-stone-unturned' approach, behind the scenes the petitioner engaged in a quiet investigation to track down the original subscription order. This effort led to the magazine's national warehouse, where the original order form was retrieved. The petitioner then retained a forensic document examiner. A copy of the order form was provided to the document examiner, along with numerous samples of the respondent's handwriting for laboratory analysis. The document examiner confirmed that the respondent's handwriting matched the handwriting on the magazine subscription order form. The respondent did not anticipate the petitioner's dedication to leaving no stone unturned in the litigation. When asked under oath about ordering the magazine the respondent denied having had anything to do with it. The document examiner was then called to the stand and testified that, in his professional opinion, the respondent was indeed the author of the completed order form. In the final divorce decree, the spiteful magazine ordering ' and denial of it ' were cited in the overall justification for changing custody of a young boy away from the respondent and placing him with the petitioner.

As illustrated above, a no-stone-unturned approach can prove invaluable; here, a minor irritant was successfully transformed into an important factor in the judicial reasoning on the ultimate question of custodial placement. If a no-stone-unturned approach had not been adopted, an effective point of influence would have been lost.

There is a potential limitation to this approach. Without careful thought, one could end up inadvertently dissipating some valuable resources and time. As such, high- quality thinking needs to guide which stones to turn over, how to turn them, how to analyze the results, and if applicable, how to transform the discovery to maximize its utility.

Case Formulation

At the heart of successful custody litigation when facing a difficult opponent is the strategy that unfolds from the case formulation. Over the years, the present author has published on a variety of case formulation issues, but space limitations herein require brevity. A few fundamentals are summarized below.

To begin, there is no monopoly as to what constitutes a case formulation. Precise definitions are not plentiful and generally lack professional consensus. This is true not only in regard to aggressive custody litigation and related family law matters, but in other disciplines as well, such as psychology and psychiatry. At its simplest, case formulation refers to your understanding of the case at hand. The author's view is that each custody case has its own particular idiosyncrasies and thus a unique case formulation should emerge that tailors a litigation plan specific to that formulation.

Certain custody cases generate impediments to developing a good case formulation. For example, if the information base is inadequate in a particular case, the litigator may be hampered. Likewise, some cases are so fast-moving and complex that it may interfere significantly with an attorney's ability to rapidly grasp all the implications and consequences, as one may be barraged on multiple fronts requiring immediate responses to a diverse range of issues. Here again, a solid litigation team with the right personnel may prove invaluable.

When it comes to litigating over custody, a good case formulation should generate a set of accurate predictions of the behavior of others integral to the litigation outcome. Such predictions provide a firm foundation for anticipatory and counter-maneuvering. As in a game of chess, being able to stay a step or more ahead of one's opponent offers an invaluable advantage. A good case formulation can help identify:

• when to file and not to file;
• what to plead and not to plead;
• what to reveal and what to withhold;
• what to ask and when to do it;
• what to present and how to do it; and
• what to expect and how to react.

In line with this predictive model, a good case formulation filters every aspect of the case in terms of how it may or may not affect rulings from the bench. The more accurate the predictions made from such filtering, the more utility the case formulation is likely to offer.

Finally, it should be noted that having a good case formulation does not always translate easily into a favorable litigation course. At times, even the most highly skilled litigator may come to understand a case correctly, yet feel 'stuck' regarding how to maneuver more advantageously. In situations like these, one may consider seeking additional creative input for possibly turning the case around.

Creativity

With a good case formulation in hand and a no-stone-unturned approach adopted, the litigation effort against a tough opponent is enhanced by innovative maneuvering on the battlefield. There is no substitute for creative thinking that leads to practical advantages when litigating aggressively over custody against fierce competition. Whether figuring out how to trap the other side into a significant litigation mistake or unleashing a surprise attack for a potent courtroom punch ' all things being equal ' creativity is king. Creative solutions may come from any of the team's key players, but when a family law litigation strategist is engaged to participate, this individual bears a special responsibility for generating innovative approaches when the problems of the case demand it.

A simple example of such creativity is in order.

Take the case of the custodial parent who was skilled at manipulating the children and the non-custodial parent when others were not around but behaved responsibly and respectfully when aware of the presence of witnesses. The custodial parent called the non-custodial parent to spew venom on the phone. The phone call was placed while one of the children was standing next to the custodial parent, with no one else around ' an obvious alienating effort by the custodial parent. Prepared for the encounter through proper strategizing, the non-custodial parent brought two secretaries into the office, took the call on speakerphone, did not announce that the secretaries were present, listened to the poisonous verbiage flowing from the custodial parent, and engaged the child in conversation to provide reassurance ' which concomitantly established the child's presence during the custodial parent's alienating barrage. Shortly thereafter, a motion for emergency hearing was filed. The custodial parent denied ever making the toxic statements; the secretaries testified regarding what they heard on the phone. Armed with the content of the secretaries' testimony, the judge took immediate action against the custodial parent.

In a tough custody battle, aggressive litigation benefits from innovative thinking that 'hits the nail on the head.' As such, it is to the client's benefit to enable his or her attorney(s) to structure the team's effort to facilitate on-target creative approaches to burdensome case issues. Creative approaches can make a crucial difference in certain litigation outcomes.

Litigation Errors

In the heat of intense battle, particularly when it is protracted, conditions are ripe for errors in judgment. In the course of litigating aggressively over custody, as the months roll by countless decisions need to be made ' decisions of all shapes, sizes and consequences. Sometimes, events on the ground may move so quickly, with every available option riddled with problems, that failure to come to a rapid decision may create a litigation error in and of itself. Information overload is a common characteristic of complex, aggressive custody litigation and it certainly invites errors in judgment as well.

One should appreciate that just from a statistical point of view, the more decisions one makes in this context, the greater the likelihood of making an error increases. Likewise, factors common to this type of litigation, such as heightened emotional tension and punishing time pressure, have their way of contributing to decision-making errors as well. All participants in hotly contested custody litigation appear prone to such errors.

Obviously, one tries to prevent making litigation errors while capitalizing on the opposition's missteps, including those mistakes elicited by pushing the other side's buttons in a fair and square manner. Having top-notch thinkers on your team improves the likelihood of achieving these goals. When errors are made ' regardless of who makes them ' each mistake should be considered in terms of potential impact on the litigation effort, aiming to advance one's position. Obviously, turning one's own litigation errors into a benefit is not always possible but in those instances amenable to such transformation, it is likely to require at least one clever mind. There is no substitute for high quality thinking when aggressively litigating over child custody against a challenging opponent.

Conclusion

Aggressive custody litigation is typically a lengthy process requiring a substantial commitment. Developing innovative strategies, and executing a comprehensive game plan that adapts successfully to the complexity and fluidity of the dispute can rarely be achieved without the psychological backbone of perseverance and patience. A top-notch litigation team is essential. The client who takes a no-stone-unturned approach in line with the talents of a highly skilled litigation team, empowers the effort to achieve the desired outcome for his or her children.

The observations noted above are particularly apropos when the opposing litigant is interfering with the children's relationship with the other parent (see Ira Daniel Turkat, Parental Alienation Syndrome: A Review of Critical Issues, 18 J. AM. ACAD. MATR. LAW. 131 (2002)); engaging in sophisticated manipulations (see Ira Daniel Turkat, Sophisticated Mani- pulators, 24 MATR. STRAT. 3 (May, 2006)) and/or acting maliciously (see Ira Daniel Turkat, Divorce Related Malicious Parent Syndrome, 14 J. FAM. VIOL. 95 (1999)). When an opposing litigant of this kind is equipped with a substantial budget, these recommendations are likely to take on even greater importance.

Fortunately, only a fraction of matrimonial cases require aggressive custody litigation. However, in this subset of cases, where the future of children and the family's financial resources are in play, the stakes are enormous. In such instances, a client on the side of right should enable his or her attorney to take the highest quality comprehensive approach possible; failure to do so may lead to a less-than-optimal outcome for the client and, more critically, for the client's offspring.

Ira Daniel Turkat, PhD, specializes in the psychology of litigation specific to family law disputes, including case strategy for child custody, high-conflict divorce, relocation, visitation interference and related matters. He has served on the faculty at the Vanderbilt University School of Medicine and the University of Florida College of Medicine. Dr. Turkat is a licensed psychologist in Venice, FL, and may be reached at 941-488-8093.

When child custody is contested, there are times when aggressive litigation is unavoidable. In such circumstances, how one approaches the litigation can vary substantially from case to case and from attorney to attorney.

Of course, there are no magic formulas to guarantee success in all cases, but there are a number of key variables to keep in mind when litigating aggressively. This is especially so when the battle is tough, ugly, highly competitive or just not proceeding satisfactorily.

Aggressively fought custody battles are typically complex and taxing. To succeed, one should approach these cases in the most comprehensive and clever manner possible.

The Decision-Making Team

Aggressive custody litigation begins with the decision to engage in it. This decision may come about for a variety of reasons, but the best reason is when the client has rightfully concluded that it is the most appropriate way to secure the best possible future for his or her offspring. In coming to such a conclusion, the client should have a realistic expectation of what can be achieved and the attorney should offer a practical game plan for how to achieve it.

In most cases, there is a long and winding road between the initial decision to litigate aggressively and a court order specifying the sought-after custody arrangement. An ever-increasing density of information will develop, and an active stream of decisions will have to be made by client and attorney. For the litigator, decision-making under pressure comes with the territory and the process itself is quite familiar. For the client, however, the custody litigation process is typically unfamiliar, distinctly stressful, and at times, painfully preoccupying (see Ira Daniel Turkat, Custody Battle Burnout, 28 AM. J. FAM. THER. 201 (2000)). Clients making critical decisions under these conditions benefit from the best input possible.

To facilitate management of the multitude of decisions to be made in a complex case, a solid litigation team is essential. Obviously, the client is a pivotal member of that team. No matter how small or large the team may be ' from solo practitioner to large law firm ' its members must function well together, especially when things get hectic. Where appropriate, forensic accountants, private investigators, and related support personnel may need to be called upon to contribute significantly to the litigation effort. At times, particularly in tough battles, the team may choose to improve its capabilities by engaging a matrimonial litigation strategist to shrewdly guide how to trap the other side, slice up adversarial witnesses, develop case strategy and prepare other high-level litigation maneuvers. While experts with such talent are rare in family law, in certain cases they may prove to be invaluable.

Ultimately, the decision to litigate aggressively over custody means a commitment of the highest order. As such, in most contests of this kind, a comprehensive approach to the litigation should be undertaken to improve the likelihood of a favorable outcome.

No Stone Unturned

In hotly contested custody battles, the obstacles facing the client may multiply significantly, ranging from a stream of minor irritants, to intensely problematic roadblocks, to devastating events. If managed correctly, the litigation effort is enhanced.

To this end, the value of taking a 'no-stone-unturned' approach should not be underestimated. Here, even minor leads should be considered as possible bases for gaining an advantage. To illustrate, take the following example of a 'minor irritant' that was turned into an effective courtroom influence in a custody battle.

During hostile matrimonial proceedings, a custody litigant (petitioner) unexpectedly began receiving issues of a magazine that the litigant had not ordered and historically detested openly. The opposing litigant (respondent) was well aware of the petitioner's disdain for this particular magazine. As such, the respondent was viewed as the most likely culprit. Taking a 'no-stone-unturned' approach, behind the scenes the petitioner engaged in a quiet investigation to track down the original subscription order. This effort led to the magazine's national warehouse, where the original order form was retrieved. The petitioner then retained a forensic document examiner. A copy of the order form was provided to the document examiner, along with numerous samples of the respondent's handwriting for laboratory analysis. The document examiner confirmed that the respondent's handwriting matched the handwriting on the magazine subscription order form. The respondent did not anticipate the petitioner's dedication to leaving no stone unturned in the litigation. When asked under oath about ordering the magazine the respondent denied having had anything to do with it. The document examiner was then called to the stand and testified that, in his professional opinion, the respondent was indeed the author of the completed order form. In the final divorce decree, the spiteful magazine ordering ' and denial of it ' were cited in the overall justification for changing custody of a young boy away from the respondent and placing him with the petitioner.

As illustrated above, a no-stone-unturned approach can prove invaluable; here, a minor irritant was successfully transformed into an important factor in the judicial reasoning on the ultimate question of custodial placement. If a no-stone-unturned approach had not been adopted, an effective point of influence would have been lost.

There is a potential limitation to this approach. Without careful thought, one could end up inadvertently dissipating some valuable resources and time. As such, high- quality thinking needs to guide which stones to turn over, how to turn them, how to analyze the results, and if applicable, how to transform the discovery to maximize its utility.

Case Formulation

At the heart of successful custody litigation when facing a difficult opponent is the strategy that unfolds from the case formulation. Over the years, the present author has published on a variety of case formulation issues, but space limitations herein require brevity. A few fundamentals are summarized below.

To begin, there is no monopoly as to what constitutes a case formulation. Precise definitions are not plentiful and generally lack professional consensus. This is true not only in regard to aggressive custody litigation and related family law matters, but in other disciplines as well, such as psychology and psychiatry. At its simplest, case formulation refers to your understanding of the case at hand. The author's view is that each custody case has its own particular idiosyncrasies and thus a unique case formulation should emerge that tailors a litigation plan specific to that formulation.

Certain custody cases generate impediments to developing a good case formulation. For example, if the information base is inadequate in a particular case, the litigator may be hampered. Likewise, some cases are so fast-moving and complex that it may interfere significantly with an attorney's ability to rapidly grasp all the implications and consequences, as one may be barraged on multiple fronts requiring immediate responses to a diverse range of issues. Here again, a solid litigation team with the right personnel may prove invaluable.

When it comes to litigating over custody, a good case formulation should generate a set of accurate predictions of the behavior of others integral to the litigation outcome. Such predictions provide a firm foundation for anticipatory and counter-maneuvering. As in a game of chess, being able to stay a step or more ahead of one's opponent offers an invaluable advantage. A good case formulation can help identify:

• when to file and not to file;
• what to plead and not to plead;
• what to reveal and what to withhold;
• what to ask and when to do it;
• what to present and how to do it; and
• what to expect and how to react.

In line with this predictive model, a good case formulation filters every aspect of the case in terms of how it may or may not affect rulings from the bench. The more accurate the predictions made from such filtering, the more utility the case formulation is likely to offer.

Finally, it should be noted that having a good case formulation does not always translate easily into a favorable litigation course. At times, even the most highly skilled litigator may come to understand a case correctly, yet feel 'stuck' regarding how to maneuver more advantageously. In situations like these, one may consider seeking additional creative input for possibly turning the case around.

Creativity

With a good case formulation in hand and a no-stone-unturned approach adopted, the litigation effort against a tough opponent is enhanced by innovative maneuvering on the battlefield. There is no substitute for creative thinking that leads to practical advantages when litigating aggressively over custody against fierce competition. Whether figuring out how to trap the other side into a significant litigation mistake or unleashing a surprise attack for a potent courtroom punch ' all things being equal ' creativity is king. Creative solutions may come from any of the team's key players, but when a family law litigation strategist is engaged to participate, this individual bears a special responsibility for generating innovative approaches when the problems of the case demand it.

A simple example of such creativity is in order.

Take the case of the custodial parent who was skilled at manipulating the children and the non-custodial parent when others were not around but behaved responsibly and respectfully when aware of the presence of witnesses. The custodial parent called the non-custodial parent to spew venom on the phone. The phone call was placed while one of the children was standing next to the custodial parent, with no one else around ' an obvious alienating effort by the custodial parent. Prepared for the encounter through proper strategizing, the non-custodial parent brought two secretaries into the office, took the call on speakerphone, did not announce that the secretaries were present, listened to the poisonous verbiage flowing from the custodial parent, and engaged the child in conversation to provide reassurance ' which concomitantly established the child's presence during the custodial parent's alienating barrage. Shortly thereafter, a motion for emergency hearing was filed. The custodial parent denied ever making the toxic statements; the secretaries testified regarding what they heard on the phone. Armed with the content of the secretaries' testimony, the judge took immediate action against the custodial parent.

In a tough custody battle, aggressive litigation benefits from innovative thinking that 'hits the nail on the head.' As such, it is to the client's benefit to enable his or her attorney(s) to structure the team's effort to facilitate on-target creative approaches to burdensome case issues. Creative approaches can make a crucial difference in certain litigation outcomes.

Litigation Errors

In the heat of intense battle, particularly when it is protracted, conditions are ripe for errors in judgment. In the course of litigating aggressively over custody, as the months roll by countless decisions need to be made ' decisions of all shapes, sizes and consequences. Sometimes, events on the ground may move so quickly, with every available option riddled with problems, that failure to come to a rapid decision may create a litigation error in and of itself. Information overload is a common characteristic of complex, aggressive custody litigation and it certainly invites errors in judgment as well.

One should appreciate that just from a statistical point of view, the more decisions one makes in this context, the greater the likelihood of making an error increases. Likewise, factors common to this type of litigation, such as heightened emotional tension and punishing time pressure, have their way of contributing to decision-making errors as well. All participants in hotly contested custody litigation appear prone to such errors.

Obviously, one tries to prevent making litigation errors while capitalizing on the opposition's missteps, including those mistakes elicited by pushing the other side's buttons in a fair and square manner. Having top-notch thinkers on your team improves the likelihood of achieving these goals. When errors are made ' regardless of who makes them ' each mistake should be considered in terms of potential impact on the litigation effort, aiming to advance one's position. Obviously, turning one's own litigation errors into a benefit is not always possible but in those instances amenable to such transformation, it is likely to require at least one clever mind. There is no substitute for high quality thinking when aggressively litigating over child custody against a challenging opponent.

Conclusion

Aggressive custody litigation is typically a lengthy process requiring a substantial commitment. Developing innovative strategies, and executing a comprehensive game plan that adapts successfully to the complexity and fluidity of the dispute can rarely be achieved without the psychological backbone of perseverance and patience. A top-notch litigation team is essential. The client who takes a no-stone-unturned approach in line with the talents of a highly skilled litigation team, empowers the effort to achieve the desired outcome for his or her children.

The observations noted above are particularly apropos when the opposing litigant is interfering with the children's relationship with the other parent (see Ira Daniel Turkat, Parental Alienation Syndrome: A Review of Critical Issues, 18 J. AM. ACAD. MATR. LAW. 131 (2002)); engaging in sophisticated manipulations (see Ira Daniel Turkat, Sophisticated Mani- pulators, 24 MATR. STRAT. 3 (May, 2006)) and/or acting maliciously (see Ira Daniel Turkat, Divorce Related Malicious Parent Syndrome, 14 J. FAM. VIOL. 95 (1999)). When an opposing litigant of this kind is equipped with a substantial budget, these recommendations are likely to take on even greater importance.

Fortunately, only a fraction of matrimonial cases require aggressive custody litigation. However, in this subset of cases, where the future of children and the family's financial resources are in play, the stakes are enormous. In such instances, a client on the side of right should enable his or her attorney to take the highest quality comprehensive approach possible; failure to do so may lead to a less-than-optimal outcome for the client and, more critically, for the client's offspring.

Ira Daniel Turkat, PhD, specializes in the psychology of litigation specific to family law disputes, including case strategy for child custody, high-conflict divorce, relocation, visitation interference and related matters. He has served on the faculty at the Vanderbilt University School of Medicine and the University of Florida College of Medicine. Dr. Turkat is a licensed psychologist in Venice, FL, and may be reached at 941-488-8093.