WHY PEOPLE LOSE IN FAMILY COURT
Reprinted here with permission of the author, Stacey Mendelson, Divorce Coach
The problem is rarely the judge
When people lose in family court, the instinctive reaction is usually:
“The judge didn’t understand.” “The judge got it wrong.” “The system failed me.”
Sometimes, sure.
But more often, the problem is simpler and more uncomfortable:
The position was hard to win.
Motions are not the place for longshots
A motion is not a trial.
The evidence is limited. The time is limited. The judge’s ability to assess nuance is limited.
So if you ask a judge to make a difficult, nuanced, credibility-heavy decision in a limited venue, you are asking for a lot.
A judge has to make a decision that can withstand scrutiny.
Judges work hard to avoid being appealed.
So when clients bring messy, complicated, “it could go either way” motions, they are taking on real risk.
If they lose, they may pay costs.
Their opponent may become emboldened.
And the case loses traction.
That is not strategy.
That is gambling.
Play the long game
Before bringing a motion, clients should ask counsel:
- What is the likely outcome?
- Is this a strong position?
- Can the judge safely grant this?
- What happens if we lose?
- Are we better saving this issue for trial?
If the answer is, “It can go either way,” press pause.
Unless it is an urgent safety issue, you may want to hold off.
Some issues are too complicated or nuanced for a motion.
Trying to force those issues into a motion can backfire.
When to go and when to pause
Here is my rule of thumb:
- If the position is a likely slam dunk, go ahead and bring it in front of a judge. 🎯
Examples:
Your 10-year-old daughter is engaging in self harm and the other parent will not provide consent to her receiving therapy. You want to take the kids to Florida for your half of Christmas break and the other parent will not sign the travel consent.
- If there is a real safety concern, and you may need immediate relief. You want to believe that even if you lose the motion, you will still be glad you tried.
But the rest?
Tread very carefully.
Not every issue belongs in family court.
Not every hill is worth legal fees.
Not every righteous position is a winning position.
Smart litigants and counsel know the difference.
