Ways You Should Be Assertive in Family Court

© 2016 Bill Eddy, LCSW, Esq

Family court presents a difficult dilemma for reasonable people. If you act reasonably and use the cooperative problem-solving skills you use in daily life, you risk losing your case, your kids and your property because family court is a highly adversarial process that rewards combative thinking and behavior. This is why some people with difficult personalities are often attracted to court and often win. If the target takes a passive approach—and many do—then the blamer’s allegations appear unchallenged and therefore true. Person A allowed this to happen at her hearing, when she did not have an attorney and did not respond in her own defense to Person B's allegations. If you allow this to happen, it gets harder and harder to overcome the appearance that you accept the allegations as true. Remember, the burden is on you (and your attorney) to assert your position. The court won’t otherwise try to figure it out, and rarely asks you questions, such as whether or not you agree. You or your attorney must convey assertively that you do not agree; otherwise the judge may assume that each of the blamer’s statements is true.

But if your approach is too aggressive, you may give the appearance of being the abusive person you say you’re not. Husband's urge to have his attorney make a lot of unsupported allegations against Wife at the next hearing will generally backfire. While TV and movies are filled with dramatic and aggressive attorneys, this often backfires in real courts, especially in the long run.

Ultimately, most court cases are won or lost based on the evidence gathered through assertive homework. In reality, in family court, the burden is on you to raise credible reports of abuse you or your children have experienced, or to respond to false abuse allegations against you. You and your attorney must be very assertive about gathering evidence that already exists, presenting that evidence to the court, and noticing new evidence as it occurs throughout your case.

The Assertive Approach

1.  Start documenting right away. High conflict divorces often start with an emergency court hearing about true or false allegations of abusive behavior. If you or the person with high conflict traits is seeking court orders (often restraining or “protective” orders), it is critical that you put together detailed, accurate information to present to the court.

In a notebook, record detailed information about parenting behavior (yours and the other parent’s), abusive behaviors, threatening statements made, and explanations of any confrontations between the two of you. Many people keep a daily diary (in a safe place), even before they separate. Focus on actual statements and behaviors, and avoid opinions and interpretations. If and when you need to describe events in court, you want to be seen as capable of presenting very objective, factual information that’s most helpful to the judge and other professionals. Information that is written down the same day as it happens is considered far more credible than something written a week or a month later.

2.  Think strategically, not reactively. Avoid acting out of frustration and anger; otherwise you may do things that waste energy and will hurt you in the long term.

Example: Gage was so upset after a hearing in which supervised visitation was ordered for him that he sent Alana an e-mail saying that she should be ashamed of herself, and that their daughter would never forgive her for lying and saying he abused her. At the next hearing, this spontaneous and reactive e-mail showed up as an exhibit to Alana’s declaration, intended to show that Thomas was aggressive, angry, and unstable. Gage’s lawyer convinced him to never send an angry e-mail again without showing it to him first.

3.  Check with a therapist or attorney whenever you feel like communicating angrily with your partner. You are better off processing your frustrations in therapy than putting something angry in writing or in a voice mail that could inadvertently become a new court document. Advise your friends and relatives to avoid such angry statements to your partner for the same reason. Invest time in learning the BIFF Response® method of effectively communicating; especially when your emails and texts are likely to be filed in court.

4.  Choose your battles. Many people who are divorcing someone with high conflict traits complain about how unfair the court process is and how unfair it is that the blamer gets away with certain things. Of course, this is upsetting, but your case actions must be based on what you need to do to make it right, not what you feel upset about. You must think strategically and choose your battles.

Talk to your attorney about which issues need a response and which ones you can ignore. Attorney letters sent back and forth can be very provocative but don’t always need a response, especially if they are not in the court record. “Your client is always late with support payments and doesn’t seem to care if the children ever eat again”—this letter may or may not need a response at all. It is a choice. If there was a problem and the payment was a day or two late, it may help to provide an explanation to the blamer’s attorney, just in case this letter shows up as an exhibit to a declaration at the next hearing.

You should always respond to court declarations containing false statements. A general denial may be sufficient, but false information at court needs a written correction, just to protect you now and in the future.

5.  Don’t make yourself into a target. When you’re in a family court battle, you need to be as perfect as possible. Stop and think as often as you can. Remember, you’re being watched by your partner and your partner’s attorney. Any of your public actions and some of your private actions may be exposed and twisted around to fit their adversarial purposes.

Innocent discussions with your partner, or even your partner’s relatives or friends, may get blown out of proportion. Just when everything seems to be going well, you may be caught by surprise and some innocent action held against you. The ironic saying, “No good deed goes unpunished,” seems to really fit in family courts.

Stop and think about how your parenting decisions and actions could be interpreted by your partner’s attorney, a court evaluator, or the judge.

Another way to avoid being a target is keep a low profile on the Internet during your divorce. Many lawyers recommend that you temporarily shut down any social networking pages you have with public profiles. These pages are often used in family court as evidence of bad behavior, even if it isn’t.

6.  Be very honest. Admit your own errors and poor judgment to your attorney as soon as you recognize them so that your attorney can prepare a response, if necessary. Remember, you’re a target. Your partner will blame you, possibly investigate you, and misinterpret you. Things that are half true are harder to deny than statements you can prove to be totally false.

Credibility is everything in court. Blamers are generally better at appearing credible in court, so judges believe them instead of you. Blamers are more emotional in a focused manner, and research has shown that emotions are contagious. Emotions get the judge’s attention and can motivate action, but unfocused emotions can backfire, so don’t count on using emotional persuasion yourself.

Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and chief innovation officer of the High Conflict Institute. He is the author of several books and methods for handling high conflict disputes with the most difficult people.