Perhaps the worst thing about a divorce is having to go through a custody battle for the children. If you can avoid fighting over custody do so. You will spend money on your attorney, the attorney for the children (AFC) and perhaps also on a forensic evaluation. Litigation can last several years and the stress on your children can very well be something that will linger with them—possibly for the rest of their lives.
In an effort to “win” or hurt the other spouse, parents will behave in a manner which they would normally not act. They will bad mouth their spouse to the children. They will, in response to hearing that their soon to be ex-spouse was bad mouthing them, try to get proof to bring to the court by taping the children. This also is a bad idea. First, when you are with your children, your focus should not be on getting evidence for trial. It should be helping your children through a difficult time. Second, it can actually be held against you in court. If you are forced to go to trial, inform the judge what the children said to you. Your lawyer will explain how to get through the hearsay objections. If you enter into evidence a tape of our children, the focus will move away from what they said and fall squarely onto why are you taping the children. Keep in mind, you may have this tape for months or literally years before the trial commences. You will be placed in the position of having to explain why you made this tape and kept it for trial. Finally, remember the judge will be asking questions directly to your children. If your spouse is bad mouthing you, the judge will find out about it. If you have concerns, tell the AFC about it.
If you are forced to fight over custody keep your children’s best interests at the forefront of your mind. They are going through a hard time. Taking care of their emotional needs during this time is paramount and should be your main priority. You may not be able to control what your spouse does and/or says, but you can absolutely control what you do, and the focus should be on your children and not “winning” in court.