Although I have included advice throughout the sections above, several points remain that can help you increase your chances of getting a fair and safe response from the court, making your children’s healing the priority that it should be:
Either find an attorney who can really fight for you, or represent yourself. People may advise you to enter a divorce or separation action with a lawyer at all costs, suggesting that it will be disastrous for you to be unrepresented. But the hundred or more accounts I have received from abused mothers in custody litigation show that the picture is not so simple. An ill-prepared, uncommitted, or dishonest lawyer can cause your case, and therefore your future, more harm than good, and can leave you penniless in the process, as is powerfully described in Karen Winner’s book Divorced from Justice. I have been involved in several cases where, for example, the lawyer assured the mother that he or she was filing certain court papers but actually failed to do so, and once the deadline had passed it was no longer possible to take the actions the woman needed to initiate, such as to appeal a judge’s ruling.
Finding the right lawyer to represent you in a custody or visitation conflict can be a challenge. Contact a nearby program for abused women to see if there are lawyers in your area whom they recommend. The fact that a lawyer is smart and high-powered does not necessarily mean that he or she can help your case; your attorney needs to be versed in the specific statutes and case law (previous rulings by higher courts) relevant to domestic violence and child abuse. Equally important, he or she needs to understand the tactics that abusers use in litigation, the types of psychological harm that unsupervised visitation can cause children who have witnessed abuse, and strategies for successfully pursuing cases in the long haul.
Your lawyer needs to be neither overly passive nor too aggressive; he or she has to have a good sense of when is the time to fight hard and when it’s necessary to compromise and show flexibility. Some issues have to be let go of, even if they are upsetting ones, in order to increase your chances of victory on the most critical points related to your children’s well-being. You and your lawyer need to present yourselves to the court as reasonable and willing to work things out for the good of your children, but at the same time not be push-overs. Show the judge that you respect him or her, but at the same time don’t be afraid to point out legal errors. Some judges will handle your case more conscientiously if they sense that you are prepared to appeal decisions that are irresponsible or that ignore the law. In short, you need a lawyer who is clear-thinking and shrewd, knows the relevant laws, and is sympathetic to the plight of abused mothers and their children.
If you cannot find or afford an attorney that you feel confident in, or if you are finding that much of your energy is going into fighting with your own lawyer, consider representing yourself. Although the first choice is certainly to have a lawyer who really understands your concerns about your children, going pro se or pro per (terms for being your own lawyer) is the next best option, while having an ineffective or uncaring lawyer comes in a distant last. If you are going to represent yourself successfully, though, you will have to be prepared to do the following:
- Spend time at a law library (sometimes available within courthouses) researching relevant laws and court cases.
- Find other women who have been through custody and visitation litigation who can guide and advise you.
- Try to find a lawyer whom you can pay on an hourly basis to help you with basic procedural issues, such as how to file motions, how to give appropriate service, and how to request necessary hearings.
- Obtain the free book Managing Your Divorce: A Guide for Battered Women
- Use Internet resources for custodially challenged mothers, several of which are listed on the Resources page of this website
- Be prepared for the fact that your ex-partner and/or his attorney will attempt to intimidate you, by such tactics as lying to you about the law, or threatening to go to court and request even more frightening judgments than they have already asked for. For example, I was recently involved in a case where the abuser, who was a lawyer himself and was pro se, informed his ex-girlfriend that he had appealed the judge’s trial ruling on custody and division of assets – which was true – and proceeded to tell her that he did not have to give her the many thousands of dollars he had been ordered to pay her, because “the judge’s ruling is automatically put on hold when you file an appeal” – which is not true in their state.
Effective representation of yourself demands of you that you be courageous, willing to do extensive research, and able to find good emotional support from friends or relatives for the stresses you are undergoing. On the positive side, you will save thousands of dollars that you can put to better purposes – such as to hire an expert witness for your trial.
Pursue the possibility of using an expert witness. I have seen expert testimony make a big difference sometimes in the outcome of cases for protective mothers. The expert does not necessarily have to be a person with tremendous academic credentials, if you cannot afford the expense of that kind of expert. The Internet is your best bet for tracking down possible experts, but also try your local battered women’s program, your state coalition of battered women’s programs, your nearest program for abusive men, and some of the other phone numbers listed in the Leadership Council website as possible experts.
Be careful whose advice you follow. Women repeatedly tell me of mistakes they have made in their court cases because someone who sounded knowledgeable, and who genuinely wanted to help, gave them bad advice. Consult broadly, move cautiously, and listen carefully to your own intuition.
Consider compromising on economic issues (but not too much) The financial concessions that abused mothers are sometimes forced to make in order to keep custody of their children can be terribly unfair. Nonetheless, you may decide at times that it’s best to let him get away with it. I recently spoke with a woman who went into court seeking an increase in child support, and her ex-husband retaliated furiously by filing for custody of the children, and 10 months later he won. She had no idea of the risks involved in seeking the additional economic support that her children deserved. If you can trade alimony, assets, or part of your child support for sole legal and physical custody, and maybe even get him to agree to take only limited or supervised visitation, it might be worth it. However, be aware that there is no ironclad way to stop him from later seeking custody or increased visitation, while the financial settlement tends to be set in stone. And if you concede too much to him economically, he’ll use that war chest against you later to try to take custody of the children from you.
A general principle to follow when you have children with an abusive man is that if he is leaving you alone, and not harming your children, avoid doing anything that might rouse him into action against you.
Hang onto custody if you can, even if you are having serious difficulties. Sometimes a woman comes to feel so exhausted or beaten down that she is tempted to give custody to the abuser voluntarily, so that she can stop fighting with him for a while and collect herself. But it is extraordinarily difficult to recover custody once you have given it up, even if the history of abuse toward you provides an understandable reason for doing so. So try to muster up another reserve of strength, and carry on, keeping your children in your care as much as possible.
Work hard to get along with people involved in your case. Depending on how your luck goes, you may sometimes have to deal with court employees, judges, custody evaluators, or mediators who are arrogant, disrespectful, irresponsible, or simply not terribly smart. You may be horrified when you see them getting sucked in by the same man who was so cruel to you – and perhaps to your children as well – and fawning over him as if he were the Father of the Year; some days you may feel an overwhelming urge to scream. But in the family court system, mothers tend to be judged by stricter standards than fathers are, and a stark bias turns up in professional responses to women’s anger. When a man expresses anger, or even somewhat explosive rage, court personnel may say, “What do you expect the guy to do? He feels like he’s gotten such a raw deal, and he sees the court system as stacked against him.” But faced with a furious woman, they tend to react with strong disapproval, an may begin to discredit her reports because she is “too angry” or “aggressive”. So as unjust as it is, try to absorb the subtle insults and injustices from these professionals who have so much – too much – power over your destiny and that of your children, and wait until you can vent out your fury alone or with loyal friends. Stand up for yourself as calmly and reasonably as you can, and stay focused on living to fight another day.
Face up to your own issues and deal forthrightly with them. You are unlikely to succeed in custody and visitation litigation if you are running away from your own problems with alcohol or drugs, emotional instability, or abusing or neglecting your children. Try to be honest with yourself and move quickly to seek help where you need it, such as substance abuse treatment or parent training courses. I do not mean that you should be carelessly honest with court personnel, as they may use your openness against you later, but do confront your issues rather than avoid them. In the long run your chances of keeping custody of your children and protecting them from abuse will grow if you yourself are growing.
Draw on a wide range of resources. On the Resources, page of this website you will find an extensive listing of books, videos, toll-free numbers, and other resources that are useful for abused women who are involved in civil litigation. Reach out for help in every direction that you can think of, and even more so if you are pro se or have a lawyer who is not carrying the ball that well. Custody litigation can take a powerful toll on a woman’s emotional health, especially when she is already carrying the effects of abuse, so reach out for professional help if you need it, making sure to work with a therapist who understands post-trauma symptoms and appropriate healing approaches.
Testify. I have been involved in several cases that were going badly until a trial or hearing finally occurred where the woman got a chance to testify, and that turned in a significantly better direction once the judge heard her tell her own story in detail. No strategy in family court is foolproof, but making your voice heard in a context where you get to speak for an hour, or for many hours, instead of for five minutes, can strengthen the position of the abused woman and weaken the ability of the abuser to put on a false front.
Focus on the long term. Many abusive men, though not all, eventually unravel in litigation, hitting a limit on how long they can convince everyone, including their own children, that they have no abuse problem. In some cases you may not be able to defeat an abusive man in court right now, but if you are able to create structures that give him some responsibility and accountability, he will sink himself over time. Keep working on yourself and on your own relationships with your children, and focus on helping them heal and grow emotionally – which is the subject of the upcoming chapter.
Involve yourself in the growing movement demanding rights for protective parents. If your court case has gone badly, you can help yourself heal from this double experience of abuse – first by your partner and then by the court system – by getting involved in organizations that are fighting for the rights of mothers to protect their children from abuse. Your own struggle need not be in vain, because you can help to ensure that other women and children are not put through the hardships that you have endured. (See the section on “Building a Broad-Based Movement.”)
*The above section was adapted from When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witness Abuse by Lundy Bancroft, Berkley Books, 2003