Parents find themselves in runaway custody battles every day. They get hammered for simple things that all parents do but when in a divorce custody battle these get used against you. You can often see the change in attitude of the judge when some minor issue is presented in such an inflammatory way that the judges emotions are set against you. From there you are facing an uphill battle where the only goal is to overcome the emotional reaction of the ALL POWERFUL Divorce Court Judge.
If you find yourself in this situation or you simply want to prevent this from happening you can change one small thing that will reset everything.
What is this one small thing? By simply changing your mindset and adjusting your pleadings you can stop Divorce Court Judges from taking your children from you.
If your mindset is that you want to punish the other SOB and take the children from them then you can’t really argue that the children can’t be taken from you just as easily. When both parents are denying the other parents rights then it gets very difficult to argue that your rights have been violated. As long as you insist on depriving the other parent of their rights you run the risk of losing yours. If you ask the judge to make an arbitrary decision and you lose then you have nothing left to argue.
The moment you insist that both parents have fundamental constitutional rights you begin to block the judge from making arbitrary decisions. If the judge insists on making an arbitrary decision you have sound grounds for an appeal that you can actually win. If you play a winner take all strategy then you run the risk of losing everything. If however you play a constitutional rights based strategy you make it very hard for the Divorce Court to rule against you and you set yourself up to overturn the Divorce Court on appeal if they do rule against you.
The moment you stop using the custody battle to punish your ex-spouse and start defending your constitutional rights is the moment the momentum will start to change. Change your pleadings and take out all references to wide discretion of the Judge. Replace this with assertion of your constitutional rights that may only be infringed under three distinct circumstances. This puts the burden of proof on the State to show why they should be allowed to deny your constitutional rights. If the Divorce Court fails to prove that it has a compelling reason to deny your rights and it does so anyway, then you have sound grounds for an appeal that does NOT rest on the Divorce Court’s determination of the child’s best interest.
If you end up appealing based on the Divorce Court’s determination of the child’s best interest then you are very likely to lose your appeal. That argument doesn’t give the Appellate Court anything to work with. If however, you challenge the Divorce Court’s authority to infringe your constitutional rights then you have a much better chance of winning, particularly if you cite the cases and use the arguments found in our book.
Remember, though, that it takes much more than just throwing out a claim of constitutional rights. You have to argue for those rights effectively. That is why we wrote the book that gives you strong constitutional arguments, not just claims, but arguments that will make the Court pause, actually listen, and consider your rights. Learn how to argue your constitutional case here.