Going Negative

I have blogged in the past about tips for co-parenting, how to talk with your attorney, and any number of other ways to address child custody issues in the Family Court system. With the presidential primaries heading towards the Iowa caucuses, I thought I would do a blog called “Going Negative.” In campaigning, going negative, known more colloquially as “mudslinging”, is trying to win an advantage by referring to negative aspects of an opponent rather than emphasizing one’s own positive attributes or preferred policies.

In really “going negative” means the same thing in family law, except instead of candidates its parents, and instead of policies its parenting. However, the effect it has is no different. You see, it is easy to focus on the negative. The negative aspects of anyone’s life are the embarrassing details they do not want to admit to. If you want to make some one uncomfortable or uneasy, just spend a few minutes telling them all the bad things about them; though frankly that sounds like a really bad idea. But it happens all the time in family law.

The problem with going negative is it really doesn’t say anything positive about you. In fact, it may say a lot about you that is negative, but more on that later. Even if you include all of your positive aspects in a declaration to the court, they will be overshadowed by the pages of dirt you have leveled at the other side. That is a mistake.

You see, I have found that Judges are more inclined to listen to parents (and by “listen”, I mean “believe”) when they are honest and even handed.   Part of this understanding has come from my experience in a courtroom and the other part of it came from an article I read. The first time I really thought about it was when I was preparing for a really difficult move away case. While I was researching the various move away cases I came across some litigation strategy advice by an attorney named Steven Kolodny. Suffice it to say, if Steve Kolodny is talking, you listen. In that article he suggested that in any move away case, instead of going negative you should keep everything positive. Focus on all the good about your client instead of the bad things about the other parent.

The rationale was this. Move away cases are tough on Judges. This is especially true when you have two good parents and a well-adjusted child (as I had in my case). Why make the case any harder on the Judge by making allegations of bad parenting. Rather, Mr. Kolodny suggested making your client look as good as possible without resorting to attacking the other side. Long story short, despite having all the cards stacked against my client, we were successful in the litigation and her son stayed in San Diego; all without ever going negative.

It’s easy to get drawn into a mudslinging fight with the other side. Once someone accuses you of being a bad parent, your first instinct is to throw it back. Avoid that instinct. You have to respond to the accusations, but you do not have to sink to going negative. Also, never forget Judges are human and prone to making judgment calls. By automatically attacking back, it could be perceived as defensive and lend some credence to the allegations.

Another pitfall you have to avoid is creating allegations of abuse or neglect of the children that you know are false. There is a rarely used statute in the Family Code, Section 3027.1. That section reads:

If a court determines…that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney”.

Since accusations such as abuse can take years to flesh out, the fees award in 3027.1 can be enormous. Not only that, but any credibility you have with the court will be lost. The same goes for family and friends that act as witnesses for you. Not only can they be sanctioned under Family Code Section 3027.1, their actions can negatively affect your case.

There are times when you have no choice but to level negative statements about the other parent. If the parent drinks or does drugs, engages in risky or dangerous activities that put the children are risk, or otherwise endangers the children, then you must say something. Absent these situations, going negative should not be your first strategy.

If you anticipate a legal child custody battle as a result of a divorce, it is important to know that a lawyer can help you understand the process accurately.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS), is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.


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