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What can be used against you in a custody battle?

Wondering what can be used against you in a child custody battle? We explain how judges make child custody decisions and what missteps to avoid.

evident Editorial Team
November 20, 2023
Parents holding hand with child

Going through a custody battle is an emotionally challenging experience for any parent. It's a time when decisions about the well-being and future of your child are heavily scrutinized. 

In such situations, it's important to understand what factors could potentially be used against you in a custody battle. Being aware of these potential pitfalls can help you make informed decisions, put your best foot forward, and ultimately strive for the best outcome for your child.

In this article, we will discuss how judges evaluate custody decisions under the “best interest of the child” test and explore some common things that could be held against you in a custody battle. 

It's crucial to note that child custody decisions vary depending on local laws and individual circumstances, so it's always recommended to consult with a legal professional who specializes in family law in your area. Nevertheless, having a general understanding of potential areas of concern can equip you with knowledge and empower you during this challenging process.

Key Takeaways

“Best interests of the child” and how child custody is determined

First, a threshold question: "What do judges look for in child custody cases?" The specifics vary from state to state, but typically, the key question courts consider when making decisions that impact children is: what would be in the best interest of the child. 

There is no single definition of the “best interests of the child", and the child custody laws in NY are different from child custody laws in Ohio and so forth.

But all fifty states and D.C. have statutes addressing the topic and instructing courts on what to consider. So whether considering whether to award joint or sole custody or deciding a visitation schedule, the family court judge will be focused on the child's best interest.

“Best interests of the child” checklist

Remember, the specific laws vary by state, but here is a helpful checklist of things to keep in mind when considering the best interests of the child:

  • The emotional ties and relationships between a child and their parents, siblings, or other  family and household members
  • The capacity for each parent to provide a safe home and basic necessities, including adequate food, clothing, medical care, and more
  • The child’s mental and physical health needs
  • The mental and physical health of the child’s parents
  • Whether there has been domestic violence, including child abuse

Statutes vary state by state, and every family’s circumstances are unique. But the key is to zoom out and consider what will be in the best interest of the child, as that is the lens through which a court will view the situation and make its decisions.

Why it matters

Statutes vary state by state, and every family’s circumstances are unique. But the key is to zoom out and consider what will be in the best interest of the child, as that is the lens through which a court will view the situation and make its decisions.

We’ll cover some specific examples of things that can be used against you in a custody battle, but keep in mind that these are just examples of things that could influence a judge’s thinking as they evaluate whether you are a responsible parent and what is in the child’s best interest. 

What can be used against you in a custody battle

Now let’s take a close look at some of the things that could be used against you in a custody battle. 

1. Failing to pay child support or other fulfill other parenting responsibilities

Let’s start with some low-hanging fruit: if you have child support obligations or other parenting responsibilities, failure to meet these obligations can negatively impact your prospects in a custody battle. 

Particularly if the child support payments are court-ordered, the court could see failure to pay child support as demonstrating a lack of respect for the court. And remember, the capacity of each parent to provide for their child’s basic necessities is a key factor in evaluating the child's best interests, so a judge could view failure to fulfill child support obligations as a lack of concern for your child’s well-being, or an inability to provide for it. 

The same goes for other parenting responsibilities – it is helpful to put your best foot forward and demonstrate your fitness as a parent, so paying child support and fulfilling any other parental responsibilities is particularly important while a custody battle unfolds. 

2. Abusing alcohol or drugs

Another straightforward thing to keep in mind: abusing alcohol or drugs can be used against you in a child custody battle. 

A child custody battle can be stressful, and it can be challenging to navigate such a difficult and emotional time. But drug or alcohol abuse goes directly towards the type of environment a parent would create for their child and their capacity to create a safe, stable environment. 

3. Altercations with your former spouse or your child

Whether verbal or physical, any altercations with your ex-spouse or your child will hurt your chances of a positive outcome in your child custody case. Physical altercations, in particular, are obviously problematic and could totally change how a judge evaluates custody decisions. (Remember, whether there has been any domestic violence is a standard consideration when courts evaluate the best interests of the child). 

Custody battles are stressful and emotional times, but it’s important to stay calm and always keep your cool, especially in front of your child and the judge. 

4. Criticizing the child’s other parent

Criticizing the child’s other parent, especially if it happens in front of your child, could hurt your child custody case. 

It’s important to have someone to talk to as you go through a custody battle. Again, it can be extremely stressful and emotionally exhausting to have the uncertainty of your child’s future and how much time you might get to spend with them up in the air. 

But it’s important to be mindful of what you say and to whom because anyone from your family members to friends might be called upon to testify in a custody hearing. 

(Platforms like Talkspace or Alma can be great resources for finding therapists). 

5. Bringing a new romantic partner into your child’s life

A less obvious issue to be aware of is bringing a new romantic partner into your child’s life. 

Separations and child custody battles are difficult times for everyone, especially the children involved. Your child is already dealing with considerable changes and uncertainty, and introducing a new romantic partner into their lives can make things even more confusing and difficult. 

It is often a good idea to wait until after your custody case is resolved to introduce a new partner into your child’s life. 

6. Disrupting your child’s regular schedule or activities

Another thing that could be used against you in a custody battle is disrupting your child’s regular schedule or activities. 

As just discussed, a child custody dispute is already disruptive and challenging for children, and everyone from the parents to the judge wants to minimize the impact and disruption that children experience. If you can, it’s best to do everything you can to make sure your child can continue with their regular activities, such as extracurricular activities or participating on sports teams. 

7. Interfering with the other parent’s time with the child

It is important to comply with any court orders, including visitation rights for the other parent. 

If a court has granted visitation rights to your ex, it would be a violation of the court’s order to interfere with those rights. And especially since many states’ laws are guided by the policy that a child benefits from maintaining contact with both parents, interfering with the other parent’s time with your child could be a red flag for the judge and backfire when they make their custody decisions. 

Zooming out - what to remember

It’s important to avoid these common missteps while your child custody case is pending, but zooming out, remember that the judge is evaluating the best interests of the child.

So the key theme you should keep in mind is how your behavior will reflect upon your parental conduct and your parent-child relationship because these are what will ultimately impact the judge’s conclusion of what custody arrangement would be best for the child. 

How long do custody battles take?

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Child custody battles are stressful and trying experiences, for you and your children. So people often wonder, “How long do custody battles take?”

There is no definitive answer, but generally, a child custody battle can take months or even over a year to resolve. The timeline for a custody battle depends on your particular circumstances and several factors. 

First and foremost, the complexity of the case impacts the length of a custody dispute. The number of issues involved, such as custody, visitation rights, child support, and any potential relocation, can prolong the proceedings.

Another factor influencing the duration is the court's caseload and availability. Family courts often handle many cases which can lead to delays in scheduling hearings and trials. The availability of judges, family law attorneys, and other stakeholders involved in the process can affect the timeline of child custody disputes.

Another critical factor that impacts how long a custody battle will take is the willingness of the parents to cooperate and work towards a resolution. If both parties are open to negotiation and willing to find common ground, the process can be expedited through alternative dispute resolution methods, such as child custody mediation. But if the parents are unable to agree on important matters and there is a need for extensive litigation, the child custody process can take significantly longer.

Finally, local laws and court procedures can influence the length of custody battles. Each jurisdiction has its own specific guidelines and requirements which can affect how long custody battles take.

The Bottom Line

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So, what can be used against you in a custody battle? Let's recap the main things to remember.

At a high level, it's crucial to understand that a family court judge will be focused on the best interests of the child. Your behavior while a child custody case is ongoing, both in and outside of the courtroom, will therefore reflect on you as a parent as well as on your parent-child relationship.

Things that can be held against you include having altercations with your former spouse or your child, abusing alcohol or drugs, and failing to pay child support or meet other parental responsibilities. But less obvious conduct, such as bringing a new romantic partner around your child or criticizing your ex-spouse, can also negatively impact your situation during custody proceedings.

If you have questions about a child custody dispute, it may be worth consulting with a family law attorney in your area. And if you speak with a child custody lawyer, here are key questions to ask them when you first meet.