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Sunday, October 12, 2008

Ten Tips on Divorce and Child Custody Disputes

1. Don't post anything on the internet, even on a password-protected website or an anonymous blog post, that you don't want to see coming in as evidence against you in court.

This goes double for parents. If there's a custody dispute someday, those private stories you wrote about what you like to do behind closed doors may come back to haunt you. For example, see Jefferson (NSFW adult blog), whose ex-wife discovered his anonymous adult blog and is using it against him in petitioning for full custody of their children.
I had a deposition once where the opposing counsel pulled out a huge stack of papers from the chair next to him, entered it into evidence, and started questioning my client about various pages. What was it? A printout of the past 5 years or so of my client's LiveJournal account.
There are no secrets.

2. Keep track of everything.
Keep a calendar so you know who did what with which child, and when. Record every time your spouse was late to pick up the children. Record every argument and every incident, especially if there are issues of emotional or physical abuse, or any sort of threats. Always note down who was present and what was said in those cases. The sooner you start collecting data, the better position you will be in if you have to present evidence before the judge.

3. Custody can be broken down into physical custody and decision-making custody, and each of these can be broken down into shared physical custody, visitation, and all the different areas where decisions will have to made in your children's lives.
Be creative in negotiating how to split up these forms of custody, with the aid of a mediator if necessary. Maybe your spouse cares more than you do about your child's religious upbringing, but you care more about which school your child attends. Identify your priorities and focus on them instead of arguing over every little point.

4. Never interfere with your children's relationship with their other parent.

5. Make sure your home has space for your children to live.
If your children are young, also take care to child-proof your home, with safety bars on upstairs windows and toxic cleaning agents locked away and all the other household dangers accounted for. If a home inspection is ordered by the judge, these are some of the things that will be in that report and important to the judge.

6. In order to get a divorce in New York, you need to be able to allege and prove one of the following grounds for divorce:
cruel and inhuman treatment; abandonment (or constructive abandonment) for a continuous period of one year or more; imprisonment for more than three years subsequent to the marriage; adultery; conversion of a separation judgment; or conversion of a written and acknowledged separation agreement after living separate and apart for more than one year.

7. A separation agreement needs to be signed before a notary and filed with the court before you live separate and apart for at least one year in order for it to be converted to a divorce.
Separating without having a written separation agreement filed with the court is not enough to get you a judgment of divorce at the end of the year. So if you have separated and want to get a divorce without having to allege one of the fault-based grounds listed above, enter into a written separation agreement and file it with the court to start your year-long waiting period immediately.

8. In a custody dispute, the court may appoint a law guardian to represent the interests of your children.
The law guardian will speak to your children, look at the results of any home inspection that may be ordered, and tell the court his or her recommendation on who should be granted custody. Treat the law guardian with respect, and never, ever miss an appointment or show up late for a meeting with him or her.

9. If the law guardian comes in and tells the judge that your children want to live with their other parent instead, don't panic.
Especially with very young children, while their desires do matter, they are not the deciding factor. The judge will still need to determine what is actually in the children's best interests.

10. Don't let your children's other parent bait you into an argument.
Any shouting match you get into is sure to be brought up in front of the judge at your next court appearance. Just stay calm, and focus on taking care of your children as best you can.

Danielle Sucher is an attorney, occasional restauranteur, and food writer.