What kind of attorney do you need when you’re involved in a complicated, contentious child custody dispute? An experienced attorney? An aggressive attorney? An attorney who promises to fight for you?
Those qualities may have value, but they’re not necessarily what makes a lawyer effective in difficult cases. I submit that you need an attorney who possesses three qualities: skill, courage, and tenacity. Each is essential, and none compensates for the absence of another.
Skill: Knowing What Needs to Be Done
A skilled child custody attorney needs more than a thorough knowledge of family law. The attorney must understand the rules of evidence and procedure, how to investigate allegations, how to distinguish facts from speculation, how to expose contradictions and misrepresentations, and how to present persuasive evidence.
A particularly important skill is understanding the difference between how the law and court procedures are supposed to work and how they actually work in practice. Unfortunately, the difference can be substantial. Knowing what the law requires is one thing. Knowing how to navigate a system that does not always follow its own rules is another.
Skill also requires good judgment. Not every disagreement warrants a motion. Not every accusation deserves an elaborate response. Not every battle is worth fighting. A skilled attorney knows when to negotiate, when to litigate, and when to leave well enough alone.
An attorney who works hard and fights bravely but lacks the necessary skill can make a difficult case worse—or at least unnecessarily long and expensive.
Courage: Being Willing to Do What Needs to Be Done
Knowing what needs to be done is of little use if the attorney lacks the courage to do it.
Courage may require confronting a dishonest opposing party or attorney, making objections the court doesn’t want to hear, or challenging a judge or commissioner who has misapplied the law, disregarded evidence, or imposed an unjust restriction. Attorneys who are reluctant to risk displeasing a judicial officer may fail to protect their clients’ rights when those rights most need protecting.
Courage also means telling clients things they don’t want to hear. Sometimes the client is wrong. Sometimes a client’s demands are unreasonable, legally unsupportable, or contrary to the children’s interests. An attorney who merely tells clients what they want to hear isn’t doing them any favors.
Courage does not mean belligerence, disrespect, or picking unnecessary fights. It means having the willingness to take a justified stand even when doing so is difficult, uncomfortable, or professionally unpopular.
Tenacity: Seeing the Necessary Work Through
Complicated child custody disputes can be exhausting. They may involve extensive discovery, conflicting testimony, repeated hearings, procedural setbacks, and opponents who deliberately use delay and expense to wear down the other side.
Even a skilled, courageous attorney may accomplish little without the persistence to follow through. Investigating allegations, obtaining records, exposing falsehoods, pursuing appropriate remedies, and correcting errors often take considerable time and repeated effort. An initial setback doesn’t necessarily mean the cause is lost.
But tenacity isn’t stubbornness. Sometimes new evidence or changed circumstances call for a change in strategy. A good attorney knows the difference between persistence and wasting the client’s time and money.
And let’s acknowledge something important: effective, sustained litigation can be tremendously expensive. Fighting effectively isn’t cheap. The attorney must be candid about that, and the client must be prepared for the financial and emotional demands of pursuing a difficult case. Find an attorney who can and will go the distance, but understand what going the distance may entail.
An Uncomfortable Bonus: The Remarkable Return on Investment from Lying
There is another characteristic that can sometimes produce extraordinary results in child custody litigation. Unfortunately, it isn’t a virtue: the willingness to lie skillfully and without shame.
For someone who has no compunction about lying, the return on investment can be astonishing. A fabricated allegation of physical abuse, emotional abuse, neglect, or dangerousness may take minutes to make and months—and thousands of dollars—to disprove.
Such allegations exploit legitimate concerns for children’s safety. They can also exploit a less admirable concern: the judicial officer’s desire for professional self-preservation. Judges face retention elections, and commissioners face supervision and performance evaluations. Restricting an innocent parent’s contact with the children may attract little attention, while failing to impose restrictions before a genuine tragedy can invite severe criticism. That creates an incentive to impose restrictions first and scrutinize the evidence later. Such decisions may protect the decision-maker more than they protect the children.
Meanwhile, temporary restrictions can create a new status quo that becomes increasingly difficult to undo. Even if the accusation is eventually exposed as a lie, the dishonest litigant may already have achieved much of the intended objective.
A lie doesn’t have to withstand rigorous scrutiny if it accomplishes its purpose before rigorous scrutiny occurs.
Of course, genuine abuse and neglect exist, and genuine victims deserve protection. That’s precisely why knowingly false allegations are so reprehensible. They exploit the legal system’s duty to protect children while undermining its ability to distinguish real dangers from invented ones.
This is one reason skill, courage, and tenacity matter so much. It takes skill to recognize and expose deception, courage to challenge it (particularly when the court has already accepted it), and tenacity to pursue the truth despite the resistance, time, and expense involved.
You Need All Three
A lawyer with skill but no courage may recognize an injustice and fail to confront it. A lawyer with courage but insufficient skill may fight hard and accomplish little. A lawyer with skill and courage but without tenacity may give up when the going gets difficult.
Integrity matters as well. An attorney who is skilled, courageous, and tenacious but willing to deceive the court is not the kind of lawyer you should want representing you. He who will lie for you will lie to you.
No honest attorney can guarantee a favorable outcome. But when your relationship with your children is at stake, you have every reason to seek an attorney who knows what needs to be done, has the courage to do it, and possesses the tenacity to see it through.
Utah Family Law, LC | divorceutah.com | 801-466-9277
