Child Custody Battles: Downsides and Alternatives to Fighting in Court

Here are five big drawbacks to heading to court to resolve your child custody dispute and some alternative routes to consider.

By , Attorney · UC Berkeley School of Law

Although some couples can work out most of the issues in their divorce, child custody is a sticking point for many. One way to resolve a child custody dispute is to take the matter to court and ask a judge to order a parenting plan.

A court battle over child custody has many drawbacks, though, and should be your last resort. But if you and your spouse can't negotiate a parenting plan, you'll want to be aware of what you're facing and have an idea of what to expect when you head to court.

5 Downsides of Child Custody Battles

Every parent who fights for child custody in court is there for a reason. Most are motivated by a desire to do what's right for their child. Others—whether they know it or not—might just want to make life as difficult as possible for their soon-to-be-ex. But no matter your "why" for battling for custody, heading to court is not a decision to make lightly.

1. Custody Battles Are Expensive

The legal process for custody battles varies depending on where you live. In most situations, though, you should expect to:

  • Gather your evidence. You'll need to be able to support your custody arguments, using evidence like text messages and emails, medical records, and therapy records. Some parents even hire private investigators to help them collect evidence against the other parent.
  • Make disclosures to the other side. The process of asking for and exchanging evidence in a court proceeding is typically called "discovery." You must typically provide your spouse with copies of any evidence that you plan to use to support your arguments. Along with producing documents and evidence, you might have to answer written questions from your spouse ("interrogatories") and respond to written requests that you admit or deny certain statements ("requests for admission").
  • Be ordered to attempt mediation—or show why it's hopeless. Often, before you present your side of the story to the court, the judge will require you to either participate in court-ordered mediation or explain why there's no chance of mediation being successful.
  • Present your side at a trial or hearing. No matter whether your court calls it a "hearing" or a "trial," this is the opportunity for both you and your spouse to present your arguments, witnesses, and other evidence to the judge. (Most states don't allow juries to decide child custody matters).
  • Adhere to the final parenting plan ordered by the court. After considering both sides, as well as what's in the child's best interests, the judge will issue a parenting plan order. Each parent will receive a signed copy of the parenting plan, and it is binding upon the parents just like any other court order.

As you can probably imagine, all of this costs a lot of money: At a minimum, you'll have to pay court fees, and you'll likely need to hire an expert—such as a therapist or a counselor—to testify on your behalf at the trial.

The biggest expense, though, is usually attorneys' fees. Due to the complexity of court cases and the high stakes, most parents involved in custody disputes will hire lawyers if they can afford to. (If you don't think you can afford to hire a lawyer, you might be able to request an order that your spouse contribute to your attorneys' fees, especially if your spouse makes more money than you.)

On top of all that, you'll probably need to take time off work to meet with your attorney and attend court hearings, which can result in lost income.

In the end, what all this expense buys you is simply the chance to try to convince the judge that your child custody proposal is best for your child. To be successful, you'll probably have to provide evidence that clearly leans in your favor as the judge evaluates the state's best interests factors.

2. Custody Battles Are Difficult on Children

Despite all your best efforts, your child will likely be aware of the fact you and your spouse are fighting over custody. And, for many children, the only thing they understand is that you're fighting about them—not that you are trying to protect them. Children exposed to custody battles might feel guilty about "causing" the fight, or feel forced to take sides.

Taking your custody battle to court might also mean subjecting your child to scrutiny. Judges sometimes allow parents to offer a statement from the child if they believe the child is mature enough to understand the process. In that situation, the judge will probably interview the child in camera, which means in the judge's office. Typically, the judge will neither allow parents in the interview room nor disclose what the child says.

3. Custody Battles Air Your Dirty Laundry in Public

When you and your spouse work out the details of your custody arrangement, there's no need for sensitive personal information to be aired in court. On the other hand, when you litigate, things can get nasty—you're more likely to reveal negative information about each other in an effort to boost your arguments, even if the information isn't relevant to custody. And much of the information revealed in the courtroom could become part of the public record that anyone can access.

4. Custody Battles Take a Long Time to Resolve

When you take your custody dispute to court, you should expect to wait months—or even a year or more—before your hearing or trial date. The reasons for the lengthy process include:

  • Procedural rules. Every court has procedural rules that dictate the timing of the steps in a case. For example, during the discovery period, your spouse might have 30 days to produce evidence to you, and you might then have another 30 days to respond or ask for more information. The judge might also require you to try mediation, giving you a certain period of time in which to complete the mediation.
  • Delays. Your hearing or trial date could be pushed back due to delays, such as the court's busy calendar, attorneys' limited availability, and court closures due to external factors like bad weather or illness.

5. Custody Battles Set You Up for More Disagreement

A custody battle is an adversarial process. Rather than setting you and your spouse on a path for successful shared parenting, it usually promotes further disagreement. And a court's custody order might not be the end of the battle because:

  • You're less likely to successfully co-parent. A parent who feels like the "loser" in the custody trial might not want to cooperate. And, regardless of the "winner," after battling it out in court, neither parent is likely to feel kindly towards the other.
  • It's more likely that future disagreements will be decided in court. The hard feelings from the initial custody battle often linger. When one of you needs to modify the custody order (perhaps due to relocation or a change in schools), you might end up in court again rather than working together to submit an agreement to the court.
  • The court's parenting plan can be appealed. Parents can sometimes appeal "final" rulings on child custody. If one of you thinks that the judge made a mistake, the court battle might continue in an appeals court.

What Are the Alternatives to a Custody Battle?

Judges often encourage parents to work together outside of court and will normally approve a negotiated parenting plan that's fair and in the child's best interests.

Some of the most popular alternatives to fighting for custody in a courtroom include:

  • Informal negotiation. Although it can be difficult to cooperate with your spouse as your marriage comes to an end, make an effort to put aside your feelings toward one another for the sake of the kids. Many communities offer co-parenting classes—consider taking these to learn how to collaborate with your ex about raising your children while living apart. In most situations, cooperating with your co-parent to reach an agreement is the cheapest way to reach a resolution, while also being the best way to set yourselves up for successful long-term shared parenting.
  • Mediation. Don't feel bad if you and your spouse can't work out an agreement on your own—that's very common, and it's why mediation exists. Mediation lets you hire a neutral third party to help you and your spouse negotiate a parenting plan. This professional, called a mediator, doesn't make any decisions for you. Instead, the mediator will guide your discussions and possibly propose solutions without taking sides. Mediation usually helps parents set the stage for continuing communication after the divorce, and it costs considerably less than a court battle.
  • Arbitration. Arbitrating your custody dispute is similar to going to court, but it's usually faster and less expensive, and what happens in arbitration doesn't become part of the public record. In arbitration, a neutral third-party (often a retired judge) hears both sides' arguments, examines their evidence in a relatively informal way, and makes a binding decision. The arbitrator's decision can be enforced in court.
  • Collaborative law. If you go the collaborative law route, both you and your spouse will hire attorneys to advise and assist you in negotiating a parenting plan. Everyone (attorneys included) signs an agreement saying that they will work together to reach an agreement. If your negotiating is unsuccessful and you have to go to court, you will have to find a new attorney to represent you. This is a good option for parents who can afford to work with attorneys but want to keep the matter private and foster communication.
  • Custody evaluation. In a child custody evaluation, a trained evaluator creates a written recommendation for custody and provides a copy to the parents and the judge. If either parent disagrees with the recommendation, the parent can file a written objection and request a full trial. If the parents accept the recommendation, the judge will approve and sign it. A custody evaluation can speed the process up and save you the time and expense of a trial. If your case is already in court, the judge in your case might order an evaluation if mediation isn't successful. You can also ask the judge to request an evaluation.

Fortunately, most parents can use one or a combination of these alternatives to resolve their child custody disputes. If you're still on the fence about whether to battle it out in court, think about the issues covered above while focusing on what's best for your child in the short and long term. You might still decide that you have to head to court, but you also might determine that you should exhaust your other options first.

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