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Custody Fight as A Tactic
(provided by Ann O'Flanagan, Esq.)
New Jersey Laws state that custody questions should be decided in "the best interest of the child". The "best interest of the child" is usually proven by two lines of argument. The first is to claim that the children would be better off with you than with your spouse and the second is to show that a spouse is an unfit parent.
If both the husband and wife file a complaint for divorce seeking custody of the children the Court must assume that each of them wants the children. However, there are custody battles that are merely a tactic. An unserious custody battle can be used as a tactical edge or to punish a spouse.
The threat of a custody fight or the beginning of one is an excellent tactic for putting heavy pressure on a spouse, especially the wife. It not only rattles her psychologically by threatening the loss of "her" children but it also puts pressure on the lawyer who sees a sudden tremendous increase in the problems of the case.
A father can ask for custody of the children and use that as a method of bargaining for what he really wants. Probably half of the custody petitions are filed for that reason.
This is particularly effective if the spouse seeking custody has the "goods" on the mate. If, for example, you have evidence of adultery, you can combine it with a petition for custody to create a potentially embarrassing situation. The spouse's attorney may know that one or two discreet acts of adultery are not enough to cost the spouse custody, but the spouse is still going to have that fear gnawing at him/her.
In a custody fight the Judge must choose which parent is the most "fit". Therefore, your spouse will be digging up all the dirt he/she can on you. If there is something in your background that you would like to keep hidden and your spouse knows it is not a good idea to enter into a custody battle. However, not all allegations of a parent being "unfit" are equal. For example, the fact that a woman had an extramarital affair is not enough to cost her custody in most cases. In order for an extramarital affair to be used effectively, the children must know about it and it must have an effect on them.
In another example, the fact that a woman has a drinking problem may not result in her being denied custody unless the father can prove that the children are being seriously neglected or seriously effected by the wife's drinking.
The best approach to take in pursuing and defending a custody battle must be decided in consultation with your lawyer.
Information provided by:
New Jersey Articles and Resources
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New Jersey: Start Your Divorce
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