How to Make Custody Less of a Battle, According to a Divorce Lawyer

Most fathers fear the family courts. It’s not without reason: for decades, dads were looked at as secondary caregivers in their eyes and moms were given the benefit of almost all of the doubt. But times are, thankfully, changing. So says Kara M. Bellew, a partner in the New York City firm, Rower LLC, who has been practicing family and matrimonial law since 2005. For the first nine years of her career, she was an advocate for domestic abuse victims. Now she’s in private practice where she often argues for fathers in divorce and custody cases. In her time during practice and studying family law, Bellew’s noticed more fathers fighting for more equal time in custody arrangements and, thanks to a better understanding of a father’s profound effect on his family, more judges are, in the right circumstances, deciding for more joint custody. But that doesn’t mean that custody battles are any less taxing between spouses.

We spoke to Bellew about how parental rights have shifted in the courts, what attitudes get in the way of reaching an agreement, what influencing factors are rarely taken into account, and how soon-to-be-exes can minimize the collateral damage during custody battles.

You’ve noticed a shift in how courts treat fathers. What, specifically, have you seen?

When I first began practicing in 2005, I was representing victims of domestic violence exclusively. In most, if not all of those cases, the father had been abusive to my client and often that abuse was perpetrated in front of the children. When I moved into private practice, I began to see more and more families with two full-time working parents. This was also reflective of a shift more globally — more women were going back to work full-time after having children. What’s more, I saw more fathers fighting for more time with their kids. I was also now representing fathers, something I had not done in my earlier career, and was arguing for them having equal access time with their children.

That’s a big transition. How did your previous experience help when you started working for fathers?

It offered me a perspective about what people go through so I could say, ‘I think we can get to an agreement here.’ I also have had to listen and really understand. I can tell when an allegation is being offered out of spite and a person thinks it will get them leverage. I can tell when people are full of it.

And allegations get made?

Absolutely.

As if there’s only one reason, but why?

When it’s a fight around children, the easiest way to hurt someone is to deny them access, so they’ll raise the accusation that the person was physical or making disparaging remarks. Sometimes they’re true, but the way they tell you and when they tell you, it can raise the suspicion of, ‘What are you trying to accomplish?’

Does it happen on both sides?

It’s equal opportunity. Men are levied more frequently, but I have many cases where the father is alleging abuse.

What also has changed in the courts?

There’s less persuasiveness with the argument that since one parent has been home, the children must be with that parent. It can actually backfire.

How so?

It looks like you’re withholding the kids and keeping the dad at arm’s length. Courts look at custody disputes from the perspective that it is in the best interests of children to have a meaningful relationship with both parents. To that end, courts believe that, absent some compelling circumstance, parents should make major decisions together on behalf of their children and share parenting time in such a way that affords the child frequent and meaningful access to both parents.

What if work has taken you away? You can’t make up lost time, but what can a parent do?

Make sure you’re on school emails. Go to games. Do pickups. Go to conferences. This stuff isn’t an issue when you’re married, but when getting divorced, everything becomes an issue. You don’t want to be sitting back, and you don’t want to be thinking of your ex as a secretary. ‘No one told me,’ is something I hear often. No one should need to tell you ‘you seem to have email for every other correspondence.’ It’s the willingness to do it that matters.

Resentment is inevitable in divorce. How do you not let it dominate?

There’s no one-size-fits-all, but fundamentally, it’s keeping the focus on your children and really understanding and believing that as much as you disdain your ex, that they are the mother or father of your children, and your children have a fundamental right to have a good relationship with them. It can be difficult, especially when there’s betrayal, but if the court sees you as unwilling to do that, that becomes the case.

Is there something people overestimate as a factor in custody?

Having an affair. The court doesn’t want to hear about it and how much it hurt you. Of course, it shows bad judgment and it blew up the family, but it doesn’t mean he can’t be a good father. Does it make him a crappy person? Yeah, but it doesn’t mean he shouldn’t see his kids.

What’s hard to do but good to keep in mind?

It’s better for children to get out of the courts, stop talking to lawyers and therapists, and try to come to an agreement with your spouse. Judges don’t know the parties or children. They can’t craft an agreement that’s customized for your lives. But when negotiating terms, you can be as creative as you want. Take the holidays. If one spouse doesn’t care about Christmas, but wants Thanksgiving, you don’t have to alternate years. It doesn’t have to be random or imposed on you.

It’s easy to think that the facts will speak for themselves, but what else factors in?

What does the judge respond to and what pisses them off? What impact will a new allegation have, and how will you be looked at? It’s about navigating all the players, assessing the allegations, and counseling your client.

What attitude do you always run up against?

Everybody knows better than you. ‘My friend says …’ People take advice from friends. They’re well-meaning, but what happens in one person’s divorce doesn’t mean it will happen in yours. There are different judges and attorneys. It’s so fact-specific. Your divorce will be based on your family and the outcome will be driven by the unique circumstances of the case. If you have doubts, sit down with your lawyer and talk it through.

Trust with a lawyer becomes essential, and the process is long, so what else is required?

People need emotional stamina. They need a relationship with their attorney where there’s open and easy communication. I never want to feel like clients are in the dark, especially before and after court appearances, because there’s so much jargon and legalese. You want to be able to ask for what you need but also having someone who will lay out the trajectory of the case to give you a sense of where are we and where are we going. Everyone wants to know three things, how long with it take, how much will it cost, and when will I finally be divorced.

So if everyone was nice and there were no problems, how long?

Three-to-six months, but that’s scarcely the case.

What’s more realistic?

If we can iron out the issues quickly and there’s a reasonable attorney on the other side, 6-12 months. That’s a very general ballpark if you’re not in court and litigating issues. If you are, at least one year.

Do people get too focused on winning?

There isn’t winning. ‘I want the court to says she’s horrible.’ You won’t get that. Is it worth $100,000 and the kids having attorneys and psychologists? Is it worth the extra 2-3 years to get the ‘win’? What are you winning? If you call her a ‘whore’, it’s horrible for your children. You may think she’s a terrible wife, but she’s the mother of your children and she’ll remain that.