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Mistakes to Avoid During a Custody & Visitation Trial

Posted by Evelyn Mitchell | Mar 01, 2019 | 0 Comments


1. Don't Worry About Your Ex - Worry About the Judge

There is one person to worry about in a custody and visitation case.  The judge. Avoid letting your emotions get the best of you when your ex or your ex's lawyer baits you.  

You're never going to fix your problems with your ex in the middle of trial, they are never going to admit they were wrong or that they are lying. The judge is looking at the parties the entire time and everything you do or say, every look you make, effects your credibility. Focus on how you're coming off to the bench.

2. Don't Argue Every Point

Not every point must be argued. In fact, it may make sense to concede the weak parts of your argument. Letting the Judge see you acknowledge the weak points of your case can give the arguments you do make more weight. It makes you look sensible and logical.

For example, let's say you work until 7 pm every night.  If the question is posed to you, “Isn't it true you work until 7 pm every night?”, a smart response acknowledges this fact and mitigates it.  “Yes.” Concede the weakness, let your attorney mitigate it, and move on. 

3. Don't Exaggerate - “She's never on time for visitation!” 

Never? Never once? Not ever? Be specific! Couch your language in terms that make you seem credible.  “She's late for visitation a lot.” Beware of all-or-nothing terms that leave you vulnerable to attack by opposing counsel.

A good rule of thumb is "never say never," doing so gives your ex's lawyer the opportunity to skewer your testimony and can seriously damage your credibility for the rest of the trial. 

4. Don't Dress For Anyone But The Judge

In a perfect world, we would all be judged based on what was in our hearts and on our actions.  The last time we checked, this is not a perfect world.

Court attire should be muted and conservative.  It should not be denim, tight, low cut, sheer, or casual. You should not be able to go directly from court to a gym in these clothes.  You should be in long sleeves, and NEVER shorts.

The judge is wearing a loose-fitting black robe all the way to his or her shins, with a suit underneath.  That's about the level of “hot” that's acceptable in court.

5. Don't Spring Things On Your Lawyer At The Last Minute

For the best results on your case, don't bring things last minute to court and expect your attorney to be able to integrate them into your trial.  There may be discovery deadlines, evidentiary issues (do you have what you need for that picture or document to be admissible?), or other technical issues to consider.

It's not helpful to your attorney to be thrown a curveball. Give your lawyer your evidence early, and in an easy to understand format. If you just received the evidence the day before court despite your best efforts to obtain it earlier make sure to bring proof of those efforts - the judge will want it. 

6. Don't Be Chatty During Your Testimony

Keep your answers short and sweet.  Listen to the question posed, and answer that question, and only that question. 

7. Don't Make Faces

This can NOT be stressed enough. The opposing party is going to say things you don't like.  In every trial, in every courtroom, in every case, the opposing party opposes you. Keep your face neutral and calm. You're not scoring points with head wagging. 

Again remember credibility, credibility, credibility - everything you say or do effects how the judge see's you. You much rather be the mature composed party and let your ex be the immature childish one. 

8. Don't Ignore The Best Interests Of The Child 

Virginia Code Section 20-124.3  includes what the court must consider prior to making a ruling. You are shooting yourself in the foot if you focus your case on how the relationship ended or how you're not receiving timely child support.

It is understandable that litigating the ends and outs of the demise of your relationship is not a natural thing and certain to cause contention.

However, you must always remember to remind yourself - this is NOT ABOUT YOU! You can rest assured the judge will certainly not forget.  The judge will view you negatively if you make the case about you and your ex and not your child.  

9. Don't Leave Scheduling Visitation Up To The Judge

Be specific!  What time do you want to do drop off?  Where? Who is responsible for driving to and from visitation?  The judge can't intuit your schedule and what works for your family. Make sure to ALWAYS go to court with a detailed proposal for visitation, remind your lawyer if you have to. 

10. Don't Talk Over The Judge Or Lawyers

While this seems easy, it is very normal to want to finish your sentence or thought.  No one goes into court thinking they are going to talk over the person deciding the case. It takes focus and being in the moment to avoid speaking over the judges and lawyers.

Remember to pay attention and catch yourself if you start to slip. This is 100% certain to anger the judge if you become a repeat offender.  


Washington, DC Child Custody

Virginia Child Custody

About the Author

Evelyn Mitchell

Evelyn Mitchell is an experienced trial attorney who has taken on difficult criminal and family law matters in Virginia and the District of Columbia.  She has received several awards, including Top 40 Under 40 for Criminal Law from The National Trial Lawyers, and Top 10 Under 40 from the Nation...


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