Going HIGH when they Go LOW: Clean Strategies for your Custody Battle

Posted by Allison D. Hartle, Esq.Oct 23, 20220 Comments

Written by:

Allison D. Hartle, Esq.

Owner and Founder of Allied Law

The practice of custody litigation in Pennsylvania, where I practice law, is focused on NOT actually litigating.  There are many steps involved in child custody litigation before ever getting to a custody trial.  Each of those steps give the parties an opportunity to negotiate and find a way to resolve any issues without going in front of a judge in an actual trial.

The first portion of a child custody case is called conciliation and is handled by a conciliator. The conciliator's entire purpose is to attempt to get the parents to negotiate, compromise and settle.  Only when this does not happen will the custody case go in front of a Court of Common Pleas Judge.  Even at that point the first hearing scheduled with the Judge is called a Pretrial Conference.  It is another opportunity for the parties to negotiate and come to an agreement on a custody arrangement.  If the parties fail to come to an agreement at the conciliation and the pretrial conference, then the custody case will go to a full trial. 

Child custody trials are hard on everyone involved. The process of the trial can be tough on the children, especially if they are old enough to have to testify about their parental preference.  Even if the children are too young to do so, they may still have to be interviewed by the judge in his or her chambers.  That can be a very scary and intimidating experience for any person, let alone a child. 

I recently had a custody trial for a client who had not seen his two children in 4 years.  The reason he had not seen his children is the mother despised him and refused to allow him to spend any time with the children.  My client is very passive, isn't great at communicating and has trauma from his past relationship with the mother.  My client had a very colorful past.  He is a convicted felon. He was convicted of felony burglary about eight years before the date of the trial and a couple of other drug convictions.  He had a serious meth addiction which led to most of his criminal convictions.  Fortunately, none of my client's past crimes were against his children or their mother. 

He spent over a year in prison when his son was about three and his daughter was one.  At that point, the mother and him were still together and she visited him with the children.  When she met someone else and moved on to another relationship, the visits halted. Since the parents no longer had a relationship, she began withholding the children from my client.  Again, he is very passive and did not know what his options were to see his children, so he did not seek custody. 

Fast forward over five years and my client has turned his life around significantly.  By the time he came to see me to officially file for custody, he had gotten clean from meth over four years prior. He now has a fiancé with a child from a previous relationship.  He has he has developed a very strong bond with this child and gained crucial parenting experience. My client and his fiancé also had a newborn baby daughter about a month before our custody trial.  He has obtained a stable job in the oil fields and had purchased his own home.

The mother of my client's older children (the defendant in this case) will not acknowledge his improvement. She claims that his time in prison had caused the older child to have significant trauma and the children could not be around my client.  She completely refused to negotiate even though we were offering very reasonable resolutions.  My client understood that since the children were very young when they last saw him he could not realistically have them, even for short periods of time, because he needed to reestablish his parental bond.  We were asking to start with short visitations that lasted hours and no overnights.

We finally got to the trial and the opposing side's entire case revolved around bashing my client and trying to make him look unfit.  However, I had another strategy and it served to protect the children, while also advocating for my client's parental rights and time with his children.  The strategy I used (and use in all family law litigation) is to go high even if the opposing side is going low.   

1.     We addressed my client's criminal history and issues with substance abuse immediately.

That testimony was literally elicited right after I had my client spell his name for the court reporter. It was imperative that we brought this up to the fact finder and not the opposing side.  I want to make sure that my client and I get to control the narrative when it comes to negative facts about my clients.  We wanted to get out in front of all the criminal convictions and my client's history with meth addiction before the other side could bring it up.  We did this so it would not appear that we were trying to hide it because the opposing side would inevitably bring it up.  A parent's criminal history and substance abuse history is absolutely admissible evidence in a custody trial.  However, we used it to our advantage because we were admitting that he was in a very bad place in the past but that he had significantly improved his life in the last three years and was ready to be in his children's life.   Essentially, factors like criminal history and issues with substance abuse will inevitably come into the proceedings, so it is crucial to get ahead of it before the other side does. 

2.     We did not spend the entire proceeding disparaging the mother; instead we focused more on my client's positive attributes and less on her negative ones.

We had lots of ammunition on the mother since she also has a colorful past.  I did elicit some testimony about her negative behaviors, but this was not the focus of my case.  I wanted to show the judge that my client had turned his life around and that he was now in a place where he could start building a bond with the children and be in their lives as a parental figure.  Focusing on the negative attributes of the mother was not part of my strategy and it would only distract from the overall theme of the case.  My client had several significant issues in his past that prevented him from being a present and fit parent; however, he has improved his life considerably and is ready to start the process of being a father to his kids again.   

3.     We focused on how he has learned to parent thru his bond with his fiancé's daughter and his newborn daughter.

Because my client had been prevented from seeing or speaking to his children for the last four years, we had no evidence or testimony we could present about his ability to parent the children at issue.  This is an important factor used by the judge in determining child custody disputes.  We used the next best thing and elicited testimony from my client, his mother, his fiancé and other witnesses with personal knowledge of my client's parenting of his future step-daughter and newborn daughter.  We wanted to show that although he has not been able to be present and to parent the children at issue, my client has spent the last three years gaining positive parenting skills and experience that will help in his road to becoming a father to his two older children.

In the end, the judge granted us the relief we were seeking.  The mother had wanted my client to have zero physical or legal custody. Her overall goal was to have his parental rights eventually terminated so that her new husband could adopt my client's children.  This did not happen and my client was granted immediate physical visitation rights. He had to arrange counseling with a family therapist to reintroduce himself to the children and there were no overnights to start.  This was the healthiest path for the children, as the goal in a custody trial is the best interest of the children.  After he successfully reestablishes his bond with his children, we can file a Motion to Modify Custody.  The judge stated on the record that when this initial visitation schedule is successful, he will be able to modify the custody arrangement to increase visits and begin overnights.  We will keep doing this until he has a true partial and equal physical custody arrangement.  My client is being patient and realistic, which has been the key in our success. 

If you are in a child custody dispute and the other side is using dirty tactics, don't stoop to their level.  Focus on your positive attributes and what you are doing right.  This will get you so much farther than slinging dirt at the other parent and risk harm to the children at issue in the custody case.  If you are in a child custody dispute, you need to have an experienced attorney by your side. The team at Allied Law handle cases all over Northwestern Pennsylvania and we will work to achieve the best result for you and your children.  Give us a call (814-346-0129) today because we CARE with COURAGE and FIGHT without FEAR.