Fight or Flight in a Custody Case

Two people fighting it out

A group of us got together this past Saturday evening to watch the Pacquiao – Mayweather fight and after all the hype and build-up, somewhere during the 36 minutes of boxing, two of our group fell asleep while the rest of us complained:  “no one hit the mat”; “there was no blood”; “should have tuned in a hockey game instead, at least we would see someone get hit”.  Afterwards, I drove home with a new understanding of what many clients feel after trial – unimpressed and very disappointed.

This new understanding dawned upon me while I was pointing out to my wife that Ilya, who is himself a boxer, predicted before the match that it would be a technical fight lasting all twelve rounds that only boxers would understand and that on that level alone it would be a great fight.  When it was over, he smiled and said “I told you”.

More important to my clients and all litigants in family law cases, the Pacquiao – Mayweather fight is a lot like going to the Judge to get a custody decision.  The lawyers will spare, there will be a lot of dancing around (proverbially speaking) and testimony (the punches) seldom land with the accuracy or force desired.  As as result, the technical side of the contest will be greatly appreciated only by those with inside knowledge and that means the attorneys and the Judge, but not the litigants.

This does not mean you should never go to trial.  On the contrary, there is nothing more satisfying in a boxing match or court-room fight than a TKO.  That moment when the evidence (punch) lands with force and the opponent goes down for the count.  There is complete vindication when you prove the other side lied, or is just plain wrong, but this is the exception, not the rule.  Like boxing, most child custody fights come down to technical points and sometimes there is not a clear winner.  Case in point, after the fight Mr. Pacquiao told one reporter that he felt he had won the fight.  When questioned why, his response was mildly amusing but quite intriguing to my analysis: “He didn’t do anything.  He was always moving outside.”

I say this statement is intriguing to the Child Custody Attorney because that is the number one, strategy employed by litigants – move to the outside and deflect.  It amazes me the times a client says “my wife (husband) will admit this if you ask” and then state a fact that the client knows or at least believes to be true.  After trial the client is aghast, “he or she lied” they say.  “How could the Judge believe him/her?”  Which is the technical side I am referring to.  Did he/she lie or just report the facts based on his or her own version of reality?  Perception is everything and in a courtroom, the perception of the Judge is the one that matters, just as the perception of the Judges in Las Vegas decided Mr. Mayweather remains undefeated.

I have no doubt Mr. Pacquiao thought he deserved the win, and I for one can see his point – moving to the outside may be good boxing for those who understand the technical side of boxing, just as it is good defensive technique in a court-room, but in both instances, it leaves the casual observer feeling . . . unimpressed and very disappointed.

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