The Custody Case

updated 11 July 2018

I Do Not Like This Work!

As a young lawyer, I did divorce and similar work. I really did not like it. People are not at their best when they are under stress. Some lean on their solicitors emotionally, which is not good for the solicitor.

People often use the children as a weapon. That is really nasty.

You Take The Case

The firm I worked for did family work, and I was the family lawyer.

This client was a father, who had initially agreed that his daughter should stay with his wife. Over the last two years he had been so concerned about the way she was bringing up the child that he recognised he had to have the child live with him.

His married sister lived next door, and she would help with the feminine side. He could give full time care because he was unfit to work after a nasty work accident.

I explained that for a father to obtain custody (now called “residence”) of a six year old girl would be very difficult.

We had to prove that he could provide what the child needed.

More difficult, we had to prove to the court that the mother was an unfit mother. Any attempt to say she was an unfit mother would be very hurtful. The court would decide what was in the best interest of the child.

At Court

At court, my client had to start off. He explained how he would organise care of the child, which was fairly straightforward. That part of his evidence was not challenged.

He then recounted some of the issues and incidents that had occurred over the past two years, culminating in his decision to apply for custody. He was a man with dignity, torn between needing to give evidence for the sake of the child, but not wishing to be nasty to his former wife.

He was lightly cross examined, but the opposing lawyer did not have the ammunition to be able to make any impact.

Then the wife gave evidence. She was nervous and shaky to be in court at all, and she had the sympathy of the court. She was not very bright, but she was good hearted and she loved the child.

I knew that if I cross examined in a nasty way the court and her lawyer would protect her. So I had to be honey rather than vinegar.

I asked if it was difficult sometimes being a single parent? Of course there were difficulties she said, but she was a single parent and that was that.

I understood she had bought a dog? Yes, she had bought a dog – for her daughter and because she got lonely when the child was at school or visiting her father.

“Isn’t it expensive to keep a dog?”

“Oh no.”

“What about the cost of dog food?”

“Oh, the dog eats what we eat.”

“The dog eats what we eat?”

“Yes.”

The magistrates were uneasy with this answer.

“Wasn’t there a problem about a dog lead?”

“Yes.”

For 18 months her former husband had refused to buy a dog lead. He said he had not asked the wife to buy a dog and he did not see why he should buy a dog lead. But after 18 months he had bought a dog lead.”

The magistrates formed conclusions about her capacity to run a household.

I carried on giving her soft opportunities to say how her husband did not help her financially, how he was generally not helpful.

She confirmed that her husband had bought the coat the daughter wore.

And the shoes.

And the previous shoes.

And the red dress.

And the blue dress.

And the T shirts.

And the knickers.

And the socks.

Of what the daughter was wearing at school today, the wife had bought the skirt.

As I worked through my list of questions she blithely badmouthed her husband, making it clear that she was not fit to be in charge of herself, or a dog, or a child.

Her lawyer could do nothing, because my questions were “soft” and fair. She was condemning herself out of her own mouth, and she did not realise it.

The Result

The Magistrates were out long enough to have a cup of coffee, and then came back in and announced they were awarding custody to the father.

My Shame

She expressed shock, naturally. She had thought she was doing so well!

My client burst into tears.

I looked round at him. I had got so engrossed in the artistry of getting this woman to carve herself to bits that I had forgotten the child and the father.

The result mattered. The future of a six year old girl had rested on my shoulders.

It was the right result. The mother was an alcoholic and unable to manage her affairs.

What upset me was that I had not thought about the child for at least 30 minutes.

After that, I tried not to do family cases involving children – but it was not always possible.