It is a sad fact that custody battles are frequently waged using stories that just aren’t true. Often, one parent blows small incidents into monumental complaints in order to gain some tactical advantage during the litigation. More often than not, however, these instances of “wrongdoing” are the result of a grieving party merely overreacting to the incident because of a sense of hurt or betrayal by the other. But unfortunately, all too often the stories are made up or greatly exaggerated by a party hoping to “bury” the other in some massive preemptive strike.
Understandably, the first thing the “receiving” parent feels is shock and fear. Afraid that they will somehow lose custody of their children, they scramble to meet the challenge, hoping to find just as damaging evidence against the offensive parent. They run to their attorney, terrified of the thought of how the lies will hurt their case. By the time they get there, fear has changed to anger, and the objective of finding evidence to rectify the misrepresentation changes to one of vengeance. However, vengeance is rarely, if ever, appropriate in a lawsuit, and like the teaching in most religious texts, belongs to a judge, not the aggrieved soul. So what to do?
Fortunately, the courts are supposed to be ruled by law, not by emotion. Various legal doctrines are at play, providing the parties and the court with guidelines to follow in instances where fact is being replaced by fiction.
First, the court must have the ability to address the issue. NRS 125.510 provides the court with the authority to make interim orders during custody proceedings, and NRS 125.230 endows the court with authority to establish preliminary custodial orders. Custodial orders themselves are to be made based solely upon the best interests of the child (not the parents), as described in NRS 125.480. Preference must not be given to either parent merely because of their gender or their parental role. This means that the court is supposed to make its preliminary and final orders according to law as applied to objective facts, not based upon traditional notions of parental responsibility or personal preference.
Additionally, parties are free to establish their custodial arrangements, which are presumed to be in the children’s best interests unless found to be unconscionable, illegal, or in violation of public policy. This means that when the parties themselves establish any particularcustodial schedule, the court should deem that schedule to be in the children’s best interest and adopt it as the order in the case, absent some strong reason not to.
When the parties disagree, or when no arrangements have been made by the parents, the court must look at certain statutory factors relating to child custody in determining whether any arrangement is in the children’s best interest. Those factors, found in NRS 125.480(4), are as follows:
- (a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her custody.
- (b) Any nomination by a parent or a guardian for the child.
- (c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
- (d) The level of conflict between the parents.
- (e) The ability of the parents to cooperate to meet the needs of the child.
- (f) The mental and physical health of the parents.
- (g) The physical, developmental and emotional needs of the child.
- (h) The nature of the relationship of the child with each parent.
- (i) The ability of the child to maintain a relationship with any sibling.
- (j) Any history of parental abuse or neglect of the child or a sibling of the child.
- (k) Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.
- (l) Whether either parent or any other person seeking custody has committed any act of abduction against the child or any other child.
Most of the time, the court will notice that the totality of the facts support certain decisions as to custody that best meets the children’s needs. Often, the misrepresentations made by a parent will be exposed by that parent’s own conduct. For example, it is common for a parent to accuse the other of abuse of that parent or the children. Sometimes, small tidbits of evidence are used by the complaining parent to support the claims. But when one digs deeper, the court may notice that the complaining parent never called police or Child Protective Services (CPS)—or if they did, they did so right before filing their complaint or motion. Such tactics usually work against the complaining parent, particularly if the claims are ultimately deemed “unsubstantiated” by CPS, or the “target parent” (the parent being accused) has an attorney who can point out the logical fallacies.
Occasionally, however, the judge is persuaded, at least initially, by the complaining parent’s story. The fact is, judges simply don’t have enough time to spend with the family to see all of the evidence. Instead, they rely on the few minutes they have to review the written documents (called “pleadings”), review the exhibits, and listen to the parties or their attorney’s in a hearing. They rarely, if ever, get a chance to see firsthand the interpersonal dynamics or get an objective opinion of a disinterested third party. Thus, they often get some part of the facts wrong.
So how does a parent prevent this sort of mistake? Preparation.
The key to avoiding being caught in this situation is by being prepared well ahead of time. The mantra is: “document, document, document.” When a parent believes divorce is a real possibility, and it’s not likely to be an amicable split, they should immediately begin to marshal their facts and gather evidence to support them.
Emails and texts are probably the most commonly used evidence to thwart a less-than-truthful litigant’s accusations. The prepared parent will consistently use email to communicate expectations and confirm understandings and facts. Texts can be used, but they are far easier to fabricate; emails are better. The prepared parent will also start to make notes on calendars, particularly if the parties are recently separated. Photos and videos are a great way to document that the children love and interact well with the target parent. A calendar noting when a parent picks-up and drops-off children can be invaluable in establishing that the parents had an equally divided timeshare with the children before the lawsuit was filed, thus disproving a party’s claim that they were the primary care-giver. Similarly, records of doctors’ visits showing who brought the child can indicate who is or is not involved in the serious childcare issues. In more egregious cases, emails and texts can demonstrate the abusive attitudes of the other parent. It’s not uncommon to see the bully parent expressing themselves in texts and emails in ways that will demonstrate to the judge just who is and is not telling the true story.
Social media posts can also be of significant use. It’s fairly common to see one parent accuse the other of public drunkenness, only to find out that they have multiple Facebook posts indicating they have been drunk in public many times themselves. They also are a source of ammunition to the other side when social media is used to disparage a parent publicly—something older children might encounter in their own use of the media. Such disparagement is deemed harmful to the children for it challenges their sense of security with both parents. The courts take a very dim view of these sorts of antics.
It is common for a particularly emotional parent to lash out with some really derogatory statements about the other parent, only to have their conduct between the purported event and the filing of their pleading prove they really weren’t that concerned at the time. If the target parent has done a good job of keeping records of the when visits occurred, what they did during those visits, and how the children acted positively when spending time with them, the target parent need not stress too much about what the other side is saying.
If you find yourself wondering “what on earth am I going to do now that my spouse has thrown me under the bus,” call and speak to our child custody expert, Attorney Keith F. Pickard at 702-910-4300. You’ll probably end up sleeping much better.