When Fault Affects Fitness



By Peter M. Walzer

ABA Family Advocate

How to Fight the Custody Battle 

For many reasons, communities and judges react differently to fault testimony. Their reaction depends on many factors. Perhaps the community is conservative or there has been a great deal of publicity about a recent child-abuse case. Something in the judge’s own life may influence a decision.

The law differs from jurisdiction to jurisdiction. Adultery may be automatic grounds for denial of custody in Waco, Texas, but it probably will not impress a judge in downtown Los Angeles. Each judge has his or her own prejudices that should be thoroughly researched before making your appearance.

Make Your Case Come Alive

Describe to the judge in graphic detail the conduct and behavior of the other spouse. It is not enough to state that Dad is cruel. Present specific evidence showing incidents of his cruelty. If Dad abuses the children, recount the Saturday last week when Dad grabbed Billy by the ear and held him with his face against the table until he said “please” (he was just asking to pass the salt at the dinner table). Describe the blood-curdling scream of the child, the look in Dad’s eyes, and the reaction of the other children who cowered in fear. Make the testimony come alive.

If you have tapes, movies, photos, drawings, broken dishes, torn clothing, letters, notes, and other demonstrative evidence, use it to command the judge’s attention by marking it as an exhibit and introducing it as evidence.

Fault Testimony Can Backfire 

A client is often tempted to become petty and vindictive. The attorney must be careful not to adopt this attitude. It can be contagious. The one thing a judge dislikes more than a whining client is an attorney who is self-righteous and emotionally involved.

Remain professional and composed. An impassioned plea on behalf of your client may persuade a judge, but more often than not, a judge is interested in a clear explanation of the facts of the case.

Avoid being malevolent and spiteful in your presentation. Your blistering cross-examination has revealed that Mom is an adulterous and promiscuous woman. She is in tears. You have humiliated and intimidated her.

But you may have inadvertently elicited the sympathy of the court for this woman. By toning down your examination, you will prevent a backlash from the court. Show that your client understands the difficulties his wife is going through and would help her if he could. However, do not go overboard or be maudlin in your efforts to show your own client’s sympathetic feelings for his ex-spouse.

In your efforts to denigrate the other spouse, make sure your client comes across as a human being. People are not impressed with a perfectionist. Let your client admit character flaws. If these are elicited through carefully prepared testimony, it can increase the receptivity of the court by showing that your client is genuine.

Conclude on a Positive Note

After presenting your fault evidence, conclude the case on a positive note. If the judge is left with the impression that all you can show is that the other spouse is rotten, he or she may assume that your client is no better. Establish that your client is the primary psychological parent.

Show that it is in the children’s best interest for your client to have custody. Conclude your case in such a way that the judge will know that by awarding your children custody, the children will be in a safe and loving home.

The following list describes some common and some not-so-common faults that can be the basis for a change in custody. This list is not intended to cover every imaginable deviation or reason for denying custody.

That would fill volumes. It is intended to give the attorney a checklist that could be used in a client interview to bring out possible undisclosed information. The checklist that follows should be adapted for your community and judge.

Fault-finding Checklist

  • Abandonment of the spouse and the marital home
  • Abandonment of the child to another person
  • Adultery
  • Alcohol and drug abuse
  • Anger in the parent
  • Attitudes of other family members toward the child
  • Criminal record of any person involved with the child
  • Clothing
  • Cruelty to spouse
  • Cruelty to the child or unreasonable discipline
  • Day-care — too much or inadequate
  • Diet
  • Financial circumstances-parent too poor to take care of the child
    (This can backfire in cases where the other is seeking support)
  • Fitness of nonmarital partner or lover
  • Fitness of secondary caretaker
    (The same criteria you would apply to parents should apply)
  • Health of the child
  • Health of the parent — physical and mental
    (Many states will not deny custody purely on the basis of a parent’s physical health unless it would be clearly harmful to the child)
  • Inability to care for the child’s emotional needs
  • Influencing the child against the other parent
  • Lack of attention given to the child
  • Lack of warmth or sensitivity
  • Lack of health care
  • Lack of other children’s company
  • Lack of discipline
  • Lack of love for children
  • Living conditions — sordid or crowded
  • Moral misconduct of parents
  • Neglect of child
  • Parent under psychiatric care
  • School attendance
  • School quality
  • School performance (grades and behavior)
  • Sexual practices of the parents
  • Sexual relations in view of the child
  • Strange religious practices harmful to the child
  • Unwillingness to share custody
  • Uncleanliness
  • Vengefulness of the parent