3 Common Mistakes in Child Custody Negotiations

Understanding the Big Picture of Child Custody

First up, it’s important to understand the big picture of child custody. Consider these two aspects of child custody: legal custody and physical custody.

‘Legal custody’ is the right to make decisions on behalf of minor children, including:

  • International traveling and passports
  • Medical decisions
  • Educational decisions
  • Religion

‘Physical custody’ refers to the place where the children will live.

Sometimes parents share both legal custody and physical custody. Other times, one parent will have physical custody but share legal custody. In this situation, children will primarily live at one parent’s home and visit the other parent, but both parents would retain legal custody.

In less common situations, one parent may retain full legal custody and full physical custody of the children, or children may be split between parents.

No matter how much you love your children, or how strongly you feel about a specific kind of custody plan, you don’t have the final say in the custody arrangements for your children. A judge needs to sign off on your custody plan in order for it to take legal effect. The “best interest of the children” is the legal standard for the judge to make the final decision about child custody.

A judge will take into consideration any parenting plan or custody plan that you and your spouse have created during a pre-trial phase or during mediation. The judge will also consider the needs and desires of both parents. At the end of the day, however, the judge is tasked with creating a situation that is in the best interests of the children.

Drugs, abuse, violence, neglect, poor anger management, erratic behavior, or criminal records can keep willing parents from earning custody of their children. Some of your actions may cause a judge to think less of your abilities to parent a child. To achieve the best outcome avoid these three common mistakes.

1. Don’t fight with the other parent.

“Don’t fight? That’s why we’re getting a divorce! If I could speak to him without fighting, I wouldn’t be divorcing him.”

Fighting with the other parent in public makes you appear out of control. Your desire to hurt your ex-spouse may seem stronger than your desire to be a stable parent to your children.

A divorce is a legal proceeding … not couples counseling. Communication in public should be professional and fact-based, not emotional or overly personal.

What can I do if my spouse says something outrageous or false?

Instead of interrupting with an impassioned contradiction (“How dare you say that?” “You are lying through your teeth and you know it!”), try waiting for your spouse to finish.

Then calmly reply, “I have a different perspective, and I have evidence to prove it.” Even better, remain silent or leave the room, and let your custody lawyer handle the situation.

If you lose your cool, it doesn’t mean you’ve lost your kids. Best to calm yourself down and issue an apology rather than hoping the judge will magically forget your unprofessional behavior. “I lost my cool and acted unprofessionally. I’ve calmed myself down. I’m ready to show you what I’m really made of.”

2. Don’t disobey court orders, even if the other parent is.

“When he missed the child support payment, I stopped letting the kids go for visitation, even though he desperately wanted to see them. It was my right to keep the kids when he stopped paying.”

“When she took the kids over the state line without telling me, I stopped dropping off the kids back to her house on time. I’d keep the kids until the evening if I wanted. I’m not the kind of person that lets his rights get trampled.”

If the other parent poses a threat or danger of any kind, you do not need to send your children to visit them. Contact the police or your custody attorney immediately to protect your kids from abuse, suspected abuse, or neglect.

In non-abusive situations, it’s important to remember that you will be in a better position if you have kept your side of the custody agreement. Your child custody lawyer can prosecute your ex-spouse for not keeping their legal obligations, but your case will be weaker if you are doing the same thing you are accusing your ex-spouse of doing.

Failing to keep your court commitments for any reason other than suspected abuse, puts you in contempt of court. Even a temporary custody order is legally binding.

If the other parent is not keeping their custody agreement, it’s not your job to enforce the law or punish your ex-spouse. Contact your custody attorney immediately to report any lapses by the other parent. Keep written records. Write a date, time, place, and what happened. Even a brief note or email to yourself, written close to the time of the incident, will significantly improve your case in court.

3. Don’t indulge yourself on social media.

Anything posted on social media or email, even to a limited or private audience, should be considered public information. Avoid posting, texting, or emailing anything that will weaken your credibility as a stable parent. This includes, but is not limited to:

  • Rants
  • Indulgent negativity towards the other parent
  • Remarks or photos taken while you are under the influence of drugs or alcohol
  • Lies or abusive comments
  • Confused or risky behavior

Disparaging your ex-spouse on social media feels good at the moment, but will be less satisfying when it’s used against you in child custody negotiations.

Of course, you can’t control what other people are posting about you. If you don’t want photos of a drunk version of yourself online, then don’t get plastered. If you don’t want romantic photos of you with someone other than your spouse to appear during your divorce negotiations, then don’t get romantically involved until after your divorce is finalized.

If you (or one of your contacts) posts something that you regret, it’s better not to remove or delete the post. This may be seen by a judge as tampering with evidence. The judge may assume that you are making an effort to manipulate the evidence in your favor. It’s only natural for a judge to wonder what else you’re hiding.

Instead of deleting or modifying your social media accounts, talk to your divorce and custody lawyer to determine the best management plan.

In conclusion, child custody arrangements are only partially in your control. Taking steps to increase your credibility as a parent will pay off when you start negotiating a child custody arrangement. Remaining professional while communicating with or about your spouse, following court orders, and avoiding negative social media posts will help you and your children achieve the best possible outcome from a custody negotiation.


Any parenting or custody arrangement that you and your spouse have made during the pre-trial period or during mediation will be considered by the judge. The requirements and preferences of both parents will be deemed by the judge. However, the judge’s ultimate goal is to establish a scenario in the children’s best interests.

3 Common Mistakes in Child Custody Negotiations Infographic


3 Common Mistakes in Child Custody Negotiations

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