How to Win a Custody Battle

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: March 20, 2023 References

A custody battle is not ideal. Instead, it would be better if you and the other parent could reach an agreement on child custody and spare everyone the emotional stress of a custody dispute. However, agreement isn’t always possible. If not, then you need to prepare for a custody battle. Understand what factors a judge considers when deciding custody and gather evidence that helps your case. Custody battles don’t always involve parents. For example, grandparents might be fighting to get custody. However, the process is generally the same.

Part 1

Part 1 of 4:

Analyzing Your Situation

1
Figure out where you are in the case. This article assumes you have already filed for custody and attended any court-ordered mediation. If you haven’t, then you shouldn’t assume you are in a “custody battle.” There is still time for you and the other parent to agree on child custody. You can draft a parenting plan and file it with the court.^{[1]
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- Most likely, either you or the other parent has already filed a petition for custody in court. You probably have tried mediation and failed to reach an agreement.
- If neither is true, then see File a Petition for Child Custody and Prepare for Child Custody Mediation for more information.
2
Identify areas of disagreement. You should also find out why the other parent is fighting you. For example, you might want a 50-50 custody arrangement, but the other parent wants you only to get weekend visitation. Find out the reasons why. Here are some of the more common:
- One parent has accused the other of abusing the children.
- One parent has accused the other of being neglectful and not having a bond with the children.
- One parent has accused the other of being a drug addict or alcoholic and thus a danger to the children.
- The parents live far apart and sharing custody 50-50 isn’t realistic. Accordingly, the children need to spend most of the school year with one parent.
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3
Understand how a judge decides custody. A judge will determine custody by considering what is in the best interests of the child.^{[2]
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Research source} As part of this analysis, the judge will need to consider a variety of factors. Not every factor will apply to your case. But if it does, then you need to argue that the factor favors you. Common factors include:
- The parent’s personality and ability to raise the child.
- The parent’s relationship with the child.
- Each parent’s employment status.
- Each parent’s mental and physical health.
- Why the parent is seeking child custody.
- Whether the parent is willing to encourage the children to maintain a relationship with the other parent.
- Who the child wants to live with (if they are old enough).
- How moving would impact the child.
4
Hire a lawyer. A child custody battle is very important. Not only do you want to win, but it is very difficult to change a custody arrangement later once a judge sets the initial custody arrangements. For these reasons, you should hire a lawyer to represent you.
- You can get a referral to a family law attorney by contacting your local or state bar association.
- Call up the lawyer and schedule a consultation. Ask the lawyer if they handle child custody issues. Not all family lawyers do, and you want a specialist.
- Also ask about price. Lawyers typically charge by the hour. If money is tight, then ask if the lawyer offers “unbundled” legal services where you pay the lawyer to handle only some tasks.^{[3]
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5
Talk to the lawyer about what else you need to prove. When two parents are fighting about an initial custody determination, the judge considers only what is in the child’s best interests. However, the judge might need to determine other things, depending on your situation:
- You are trying to modify custody. There might already be an initial child custody arrangement. If you are trying to change it, then you need to prove that there has been a significant change since the initial arrangement was set. Generally, this means you need to show that the other parent has been put in prison, has developed a drug addiction, or has moved far away.^{[4]
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- You aren’t the other parent. You might be a grandparent, other relative, or foster parent. If you are trying to get custody, then you typically need to show that the biological parents are unfit or have deserted the child.^{[5]
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Part 2

Part 2 of 4:

Obtaining Helpful Evidence

1
Gather evidence that you are a good parent. You basically need to show the judge that you are a good parent who has a strong relationship with your children. Although you can testify in court, the judge won’t necessarily accept your word. Instead you will need evidence, such as the following:
- Pictures. Take plenty of pictures of the time you spend with your children. These will show that you are involved in their life.
- Testimony from neighbors or child care workers. These people can testify that they have seen you with your children and that you have a good relationship.^{[6]
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- Testimony from other people. Anyone can testify that they have seen you with your children. However, it’s best to have neutral people—such as neighbors—than a new boyfriend or girlfriend, since the judge might assume they are biased.
- Proof that you take care of special needs. If your child is disabled or has other special needs, you should document that you provide the necessary care for the child. Find receipts that you pay for therapy, wheelchairs, etc. Also document that you take the child to medical appointments.
2
Assess your weaknesses as a parent. Since you are in a custody battle, the other parent has probably accused you of being a terrible parent. In fact, you should expect him or her to keep detailed notes about your bad behavior and tell the judge.^{[7]
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Research source} You need to honestly self-assess. There might be a lot of truth in what the other parent has said.
- Do you have a drug or alcohol problem, now or in the past? For example, have you ever been arrested for DUI or had the police called on you?
- Do you have anger management issues? Have the police been called on you? Does the other parent have a restraining order against you for past domestic violence?
- Have you neglected to visit your children? You might be very busy with travel for work. Nevertheless, you can expect the other parent to make a big deal about the fact that you aren’t around.
- Are you always broke or unemployed? Do you have to move around a lot because you can’t afford a stable home?
3
Begin addressing your weaknesses. You want to minimize your weaknesses by showing the judge that you take them seriously and are trying to improve yourself. Accordingly, you should do the following:
- Get treatment for any addictions, such as drug addiction or alcoholism. You can find a treatment program by talking to your doctor.
- Address any mental health problems you might have. Attend counseling or therapy and get the necessary drugs to help you.
- Take an anger management class. If you struggle with controlling your emotions, then you should complete an anger management class which will help you cope with your emotions.^{[8]
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  Mayo Clinic
  Educational website from one of the world's leading hospitals
  Go to source} Hold onto the certificate of completion.
- Get your finances in order. It is unlikely that a judge will award child custody to a parent simply because they are wealthier. However, you need to show you can provide for your children, which means you can provide for their necessities. Get on top of your debt and find a job, if necessary.
4
Gather evidence to use against the other parent. You should make sure to point out why living with the other parent wouldn’t be in the child’s best interests. Review the factors a judge considers and try to find evidence for each factor. For example:
- If the other parent has a drug or alcohol problem, be sure to tell your lawyer. Your lawyer can get copies of medical records.
- Where the other parent is abusive or uses excessive discipline, you can use that information against them. Find witnesses who have seen the other parent slap or hit the child.
- If the other parent has a criminal history, then tell your lawyer, who can get criminal records.^{[9]
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- If the children rarely see the other parent, then document the days the parent doesn’t visit. Write down important events (like birthdays or weekend visitation) that the parent fails to attend.
- If the other parent has a new partner, then you need to do a thorough background check on this new person. Look for criminal convictions.
- Remember to scour social media accounts—Facebook, Instagram, Twitter, etc. If you can find a picture of the other parent drunk and at a party, print it out or download it.
5
Request information in “discovery.” As part of any contested child custody case, you can request information or documents from the other parent. This process is called “discovery.”^{[10]
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Research source} For example, you might want to use the following discovery techniques:
- Requests for Documents. Your lawyer can request copies of documents, if they are relevant.
- Interrogatories. These are written questions that the other parent must answer under oath.
- Depositions. If you think a witness has relevant information, your lawyer can question the witness in a “deposition.” For example, you might want to depose your child’s teacher and ask if they have seen the other parent berate or hit the child.

Part 3

Part 3 of 4:

Being on Your Best Behavior

1
Stay in constant contact with your children. You might have moved out of the house. However, as you await your custody hearing, you need to stay in regular contact with the children. Try to visit as often as you can.
- Keep detailed notes about your contact. For example, you should keep a journal in which you write down the dates and times that you visited or called.^{[11]
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- If you are away for work, then document that as well. You should have a reason if you can’t see your children regularly.
2
Maintain a safe home. You don’t want your children injured when they visit you. Furthermore, you want to show the judge that you keep a safe home. Make sure to address any obvious hazards, such as loose stairs or exposed wires. Also make sure your home is clean and neat.^{[12]
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- Also keep dangerous products out of the reach of your children. Lock up any firearms and ammunition, and keep chemicals or prescription drugs in cabinets.
- As part of the custody dispute, the judge might order that you undergo a custody evaluation. The social worker who handles the evaluation might visit your home, so you should address any problems quickly.
3
Avoid showing anger. You should imagine that the judge is standing right beside you at all times.^{[13]
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Research source} If you show anger, you can expect the other parent to tell the judge. For this reason, you should control your anger at all times.
- This might be very difficult, particularly if your separation was emotionally painful. Nevertheless, try to come up with strategies for minimizing your contact with the other parent.
- For example, if you have visitation, then agree to pick up the children from school and drop them back off at school. In this way, you can avoid seeing the other parent.
4
Don’t badmouth the other parent to your children. Judges want children to maintain good relationships with both parents. For this reason, they will not reward you if you try and turn the children against the other parent. Avoid saying anything negative about the other parent.^{[14]
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- If your children start talking about their other parent, listen quietly. You aren’t required to respond.
- Also don’t try to keep your children from the other parent. If your children are living with you, then make all hand-offs for visitation on time. The judge will be unhappy if you make it difficult for the other parent to see their children.
5
Watch what you tell your children. You can expect your children to tell the other parent anything you tell them.^{[15]
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Research source} For this reason, you probably shouldn’t tell the children that you lost your job or that your new boyfriend just got arrested.
- In fact, you might want to limit your children’s contact with any new romantic partner. There is no reason to drag this new person into the custody dispute.
6
Listen to your lawyer. Your lawyer wants what is best for you. Accordingly, you should always listen to what he or she says. If your lawyer recommends that you do something, then ask questions if you don’t understand why. But try to follow your lawyer’s recommendations.

Part 4

Part 4 of 4:

Going to Court

1
Subpoena your witnesses. A subpoena is a legal command to show up to court on a certain date and testify. You should probably serve all of your witnesses with subpoenas. If the witness fails to show up, the judge could have them arrested and brought into court.
- Your lawyer can arrange to serve subpoenas. If you are representing yourself, then you can generally get subpoenas from the court clerk.
- Remember to give sufficient notice. Don’t wait to serve the subpoena the day before your contested hearing. Generally, you need to give a couple weeks’ notice, though the amount depends on your court.
2
Prepare documents as exhibits. Any document you introduce needs to be made into an exhibit. You probably must give the other parent a copy of all exhibits before your contested hearing.^{[16]
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- If you want to introduce pictures, then put the sticker on the back.
3
Dress appropriately. Unfortunately, people assume that they know you based on your appearance. For this reason, you always want to dress conservatively whenever you appear in court. You don’t have to wear a suit. In fact, you should wear clothes that are comfortable and that fit.
- See Dress for a Court Hearing for more information.
4
Let your lawyer handle the hearing. Your lawyer should handle presenting your witnesses and cross-examining the other parent’s witnesses. Each contested custody hearing is a little different, but they generally following the same format:^{[17]
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- Each lawyer makes an opening statement to the judge, laying out what the evidence will show.
- Whoever filed the child custody petition will present evidence first. The lawyer for the other parent gets to cross-examine the witnesses.
- The second parent gets to present their case. The lawyer for the parent who filed for custody is then able to cross-examine those witnesses.
- Each lawyer makes an argument to the judge about why it is in the child’s best interests to live with their client.
5
Testify on your behalf. Your primary task will probably be to testify. You should prepare for your testimony with your lawyer. Do a practice run and prepare for cross-examination by the other parent’s lawyer. When on the witness stand, remember the following tips:^{[18]
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- Listen closely to the question asked. If you don’t understand the question, then say, “I’m sorry, I don’t understand.” The lawyer should rephrase it.
- Think before answering. You should never let a lawyer bully you into answering quickly. Instead, take a breath and think about your answer.
- Don’t volunteer information. Answer only the question asked.
- Never guess. If you don’t know something, say, “I don’t know.”
- Avoid arguing. Things can get emotional when the other parent cross-examines you and brings up uncomfortable subjects. Always remember to take a deep breath. The lawyer is trying to rattle you.
6
Receive the judge’s decision. After all evidence has been presented, the judge should issue an order from the bench. However, if the case is complicated, the judge might take the issue under advisement and contact your lawyer with the result later.^{[19]
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- No matter how unhappy you are, you should not show anger. You never know—you might see the judge again a few years down the road when you try to modify custody.
7
Consider an appeal. If you are unhappy with the result, talk with your lawyer about whether you should try to appeal. With an appeal, you ask a higher court to review the trial record and determine if the judge made a serious error. If the judge did, the appeal court can set aside the judge’s decision.
- Appeals are usually costly. You have to pay to have the court reporter prepare the trial transcripts. This could cost thousands of dollars.
- If you want to appeal, then move quickly. Courts generally give you only 30 days (or less) to file your Notice of Appeal with the trial court.