The Application of Ice Ice Baby to Custody Litigation Strategy
By: Robert D. Weinberg
Many readers will recall the sagacious approach to life challenges postulated by Vanilla Ice in his seminal (only?) hit song, Ice Ice Baby: “If there was a problem, yo, I solve it (check out the hook while my DJ revolves it. Ice ice baby too cold, too cold).” (Citation omitted).
How on earth could this epistemological font be applicable to a custody case, you ask? Simple.
Our legislature, in its own bout of perspicacity, listed the following as the very first factor that our courts must consider in any custody action:
- Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
Vanilla Ice could not have said it better himself: a client walks into your office with a problem in a custody case and, yo, you solve it—with Factor 1 at the forefront of your mind.
Start with this simple truism: children do best when they have healthy (safe) relationships with both of their parents. This may not mean 50/50 in every case, but it means that each parent should take every reasonable (safe) step to promote their child’s (safe) relationship with the other parent. Not only is this mindset beneficial to children; it is also good strategy, because it heeds Vanilla Ice’s wisdom and focuses on the consideration set forth in Custody Factor 1. It also informs attorneys how to prepare for a custody trial.
Unlike almost any other area of the law, custody cases will focus not only on evidence that occurred before the case but also on evidence that develops while the case is pending up to the date of trial. Keeping Factor 1 in mind, courts will expect that each parent has done whatever they have within their respective abilities to solve problems regarding custody, and evidence regarding these efforts will be critical in terms of the court’s determination.
What are the problem solving tools that also serve to generate significant evidence? Communication is key. I typically advise most new clients to immediately sign up for Our Family Wizard and help the client understand what constitutes good communication and what to avoid. Of course, every exchange on Our Family Wizard (or email, text, SnapChat, Facebook messenger, yadda yadda) represents potential evidence.
Next, I typically advise to engage with a co-parent counselor. A topic for another discussion is whether the co-parent counselor can testify as to some or all of her or his involvement with the parties; here, I will just state that preparation of your client for this interaction is critical.
How do you prepare your client? I would suggest three basic things. First, ask the client for a detailed timeline of important facts and events involving the children. This will help the client place facts into context, which is critical for any listener (especially the court) to understand why certain concerns are important. Second, interview the client to the point where you as an attorney can develop a “narrative” of the salient aspects of the case. Third, sit down and draft the pretrial statement and your proposed order, so that you and the client understand again what facts are most important, how to talk about those facts, and, perhaps most importantly, how the facts translate into the relief your client is asking the court to implement.
Back to the problem solving ethos: let’s assume you represent the dad who has had majority time with a child and has concerns about mom’s parenting. Mom has an apparent drinking problem. Her new significant other engages in disturbing behavior. Fill in the blank as to her possible problems; your client wants primary custody.
You file a custody complaint and ask for primary physical and sole legal custody. Do you sit back and wait for the trial?
Absolutely not. Your client—dad in this case—needs to take all reasonable (safe) steps to try to support the child’s relationship with the mother. This seems counter-intuitive; why would a client that wants primary custody help the other parent. Again, in the words of Vanilla Ice, your client needs to try to solve the problems with Factor 1 squarely in view.
In this example, there are several approaches to supporting the relationship all while keeping the ultimate outcome of the case in mind, and the development of evidence in mind, as well. You would suggest that mom undertake a drug and alcohol assessment; if she refuses, you would serve an appropriate motion asking for this relief, with a concomitant request that she abide by any recommendations. You would ask that she enroll in SoberLink or a similar program, to ensure that she is sober if she is to have a visit. You might also ask that a supervisor oversee any custodial periods. If appropriate, you might have your client reach out someone in mother’s family that might be supportive of mother’s sobriety and attendant treatment.
All of these steps are directed at supporting mother’s relationship with the child. These steps also develop potential witnesses for trial.
Now comes trial. Your client has done everything he could but he could not solve the problem. Unfortunately, there are some problems that cannot be solved in custody cases, or at least can only be managed. But your client, in this example, has done the right thing: he has taken all safe, reasonable, appropriate steps to supporting the child’s relationship with the child. Not only can he feel good about trying to do the right thing—to solve the problem—but now he has significant evidence that supports his case, especially as it relates to Factor 1.
How does your client prepare for trial? You already have your timeline, your narrative, and your proposed order. This will essentially write your direct examination. Your client will be able to credibly testify not only about his positive relationship with the child, but about all of his efforts to support the child’s relationship with mother, as well.
Your client not only proposed co-parent counseling, which is a good fact, but, if the counselor testifies, this evidence will further demonstrate why your client is focused on the child’s best interests and willingness to support the child’s relationships with both parents.
Your client’s communications with the other party will also support this conclusion. This is because your client will have kept the other parent informed, attempted to consult with the other parent, and focused solely on the child’s needs in the face of possible hostile, critical or disparaging responses from the other party. As the attorney, you will have culled through these communications to assemble the most pertinent examples that support your case theory: on the positive side, examples of your client informing or consulting with the other parent; on the negative side, examples of problematic, conflictual communication from the other parent. Your client can be trusted by the court with primary custody because he will not commit a parentdectomy (my word for excising the other parent) even if he is awarded the relief he seeks.
As mentioned, you will have developed other witnesses through your efforts to support mother’s parent/child relationship: the substance abuse evaluator; friends or family that helped make sure the child was safe with mom; the visitation supervisor; perhaps you also request a psychological evaluation of mother or even a full custody evaluation, if appropriate. You might also consult with your own expert witness to testify about matters such as substance abuse, parent/child bonds, literature regarding best practices under certain fact patterns, and the like.
You may ask whether this is a cynical approach to custody litigation. My answer is no because all of the evidence that develops while implementing the Vanilla Ice strategy is, at the same time, what is best for a child. The hope is that it works; that in this example, the child’s relationship is improved such that something approximating a shared custody arrangement can be safely implemented.
Indeed, all of the evidence described in this article is generated by one parent trying everything in his or her power to solve a problem (or many problems) in an effort to support the other parent’s safe, appropriate relationship with that child. It is simply an added benefit that the byproduct of this strategy effectively builds evidence for a custody case in the event that these efforts fail.
So next time a client walks into your office demanding sole custody now, just sit back in your chair, blast Ice Ice Baby and, when the client’s obvious confusion becomes unbearable, tell him or her that Vanilla Ice is basically the guru of custody litigation strategy—and that they need to focus on solving the problem (while the DJ revolves it).