Vol. 10, No. 2, Pg. 14. A Dozen Grade A Strategies: Winning Custody Cases Without Bankrupting Your Clients.

• Author: By Gregory S. Forman

South Carolina Lawyer

1998.

Vol. 10, No. 2, Pg. 14.

A Dozen Grade A Strategies: Winning Custody Cases Without Bankrupting Your Clients

14A Dozen Grade A Strategies: Winning Custody Cases Without Bankrupting Your ClientsBy Gregory S. FormanIn most custody cases, funds will be limited. Potentially meritorious cases can be lost simply because the client lacks resources to fully develop the facts. Here are 12 helpful strategies for litigating difficult custody and visitation cases that an inexperienced family law practitioner can utilize while keeping costs down. These strategies are also useful for court appointed abuse and neglect or termination of parental rights cases.

1 Teach your client the law on custody at the initial consultation to develop reasonable expectations from the beginning.

For your next final order in a custody case, work up the conclusions of law, developing a summary of important South Carolina cases on the standards for awarding custody. Save these conclusions and add to them whenever a new case changes or adds standards for setting custody. When meeting with potential clients, use this file as a basis to clarify goals and expectations.

The initial consultation should provide a theory of the case, help you and the client determine if the objectives are realistic, and create a framework for developing the facts needed to prevail.

2 Don't file a change in custody action when what your client really wants is to enforce the existing custody order.

A custody action takes months or years to get to trial; a rule to show cause can be heard within a month or two. If your client seeks a change in custody based on some aspect of the other parent's behavior, you may be better off filing a rule to show cause, even though it is unlikely to result in a change of custody.

A rule presents an opportunity to get into court while the behavior is still current. It is an inexpensive and effective method of documenting the other parties' noncompliance with a court order. If the other parent has enough sense to change the offensive behavior (either before or after the rule to show cause), it prevents your client from getting involved in a lengthy, expensive custody battle that he or she is unlikely to win. If, after being found in contempt, the other parent does not change the offensive behavior, it creates a basis for a change in custody.

Often, an incremental approach succeeds where an all or nothing approach will not work. A father who has no relationship with his child and is concerned about the mother's behavior will be more successful seeking visitation and putting restraints on the mother's behavior than seeking custody. After this father has established a strong relationship with the child, or if the mother's behavior does not change, he is then positioned to seek custody.

3 Do not file your initial pleading until you have determined how you are going to prevail and continually reevaluate your strategy.

Before preparing the initial pleading, ask yourself how you will prove your client deserves what he or she is seeking. You should already be thinking about the types of witnesses who will prove your case. Is your client's basis for custody that she was the primary custodial parent? That

16 your client is an outstanding parent, the superior parent? That the other parent is a disaster? Different witnesses will be needed under each scenario.

Because facts are continually in flux, make sure you periodically reevaluate strategy. If the other parent's improved behavior makes what was once a very winnable case a difficult if not impossible case, inform your client. Planning a...