What Can Be Used Against You in a Custody Battle?

Divorce can be extremely stressful, and if you can’t agree on who gets custody of the children, it can be especially exhausting and emotional. If things do get ugly though, you may have wondered “what can be used against you in a custody battle?” 

Many things can be used against a parent in a custody battle, including a history of verbal or physical abuse, neglect towards the children, a history of drug and/or alcohol abuse, or an inability to provide a consistent standard of living.

However, it is important to keep a clear mind and to act with intention when you’re in a custody battle, for your sake and the sake of your children. 

The rest of this article explains each of these items in detail and offers some tips on how to win your custody battle.

If you are in the middle of a child custody battle, or you’re about to be, and you want to know what not to do to put your best foot forward with the judge, keep reading. 

How Is Custody Decided?

Custody is decided with regard to what is in the best interests of the child. This means that judges focus on the child’s needs, not either parent’s needs. Judges decide who gets custody of a child based on who can best serve the child’s needs consistently.

Here are some things that children need

  • A safe place to live 
  • Enough quality, healthy food 
  • Clothing 
  • Supervision 
  • Emotional support 
  • Financial security 

The judge will award custody to whichever parent can provide for their child’s best interests. Therefore, when they are making this decision, any evidence that you cannot provide these needs will be used against you. 

Here are some other factors judges consider when determining a child custody case: 

  • The age of the children. Whether or not this is fair or right, many judges believe that younger children should be with their mothers, especially if the child is a nursing baby. 
  • The living situation of the parents. If one parent kept the family home and the other is crashing on their friend’s couch, it may be difficult for the couch parent to argue that they can provide a safe living situation for their children. Additionally, if one parent lives close to the child’s school and the other lives far away, the judge may consider this.  
  • Each parent’s level of cooperation. If one parent can support their child’s relationship with their ex and the other isn’t, the judge will note this. 
  • The relationship to the children before the divorce. If one parent has been the primary caregiver to the children, the judge may be tempted to grant that parent custody. 
  • The preferences of the children. If the kids are old enough to voice their preferences, the judge will listen and take them into consideration.  

With these factors in mind, let’s take a look at what can be used against you in a custody battle. 

1. Verbal or Physical Altercations 

Going through a divorce can cause tempers to flare and emotions to run high, but it is crucial not to let your emotions get the best of you. Yelling at your former spouse, or worse, causing physical harm to them in any way, can and will be used against you in court. 

This applies in the courtroom as well. 

No judge will be impressed if you start yelling at your ex during the court proceeding. It is crucial that you speak calmly and rationally and don’t start shouting at any time, especially in front of the children. 

If you find yourself in a heated conversation with your ex, the best way to end it is by stating calmly that you are finished with the conversation because you don’t want to add turmoil to your children’s lives. If your ex continues to try and have a verbal battle with you, remove yourself physically from their presence.

There is a high possibility that your children will be interviewed throughout the custody process, and what they say about you can influence the judge’s decision. If they say that you yell at your former spouse, this will be used against you. 

No good judge will allow children to be in the care of a physically abusive adult, so above all else, do not get into a physical altercation with your ex-spouse.    

2. Neglecting Responsibilities 

If you are responsible for paying child support or alimony to your ex-spouse and you haven’t been doing so, this will be used against you in court. 

It is essential that you make these payments promptly, especially if the court ordered them. 

Failure to make these payments is seen as in contempt of the court’s order, which could cause you even more legal problems in addition to being used against you in the custody battle.

Furthermore, not making these payments could be interpreted as you being an uncaring parent, which could lead the judge to determine that you do not have the child’s best interest at heart. 

You should also be complying with any temporary custody arrangements that you and the other parent have made. If you are continuously late to pick your child up at the agreed-upon time or constantly changing the location the other parent needs to pick the child up from, this will be used against you. 

The best thing to do is to maximize the parental rights you have under the temporary arrangement because this will show the judge that you prioritize your children and that you are in the custody battle for the right reasons. 

After all, you genuinely want time with your kids. Constant rescheduling or showing up late could lead the judge to believe that you are only engaging in this custody battle to get back at your ex. 

When you do have your children, it is essential that you do not neglect your parental responsibilities. Your kids may love it if you take them to Disney World and let them have ice cream for dinner every weekend, but this shows the judge that you are not a responsible parent. 

Do homework with them, make them do chores, and take them to their normal activities to demonstrate that you are a responsible caregiver.  

3. Critiquing Your Former Spouse 

You may feel like badmouthing your former spouse to others, but doing so can be used against you in a custody battle. Even if you think the person you are speaking to will keep what you’re saying confidential, they may be subpoenaed by the court and have to tell the judge what you said. 

It is especially important to avoid badmouthing your ex-spouse to your children. 

Not only will this be used against you in your custody battle, but it will also put unnecessary stress on your children. You don’t want to put the weight of divorce on their shoulders, as they’re already going through enough. 

Just assume that the judge will hear anything you say to anybody and keep your mouth shut. If you need to let out frustration, try journaling. But be sure to keep this under lock and key, and never tell anyone about your journal. 

One important exception to this is if the other parent is involved in illegal activity or behavior that is endangering the children. In this case, you should tell the caseworker or guardian ad litem so that your claim can be investigated. 

Make sure that you have evidence before making any of these kinds of allegations, though, or it’ll seem like you’re trying to alienate the children from the other parent.   

4. Disrupting Your Child’s Life 

This is already a tumultuous time for children, so it is best to keep their lives as stable as possible. This means taking them to their regular activities, like extracurriculars, ensuring that they are on time and participating in these. 

Another way you could disrupt your child’s life is by removing them from school or daycare without a good reason and without notifying the other parent. Not only is this irresponsible, but it also communicates to the judge that you are unable or unwilling to communicate with the other parent in the way that co-parenting requires. 

A massive misstep would be to take your child to another state without notifying the other parent. Not only is this a disruption to the child’s life, but it could also be seen as kidnapping. 

You should also allow your children to contact their other parents when they are with you. If your child is used to talking to their mother or father every day, and then suddenly you don’t allow them to communicate at all, you are adding additional stress to them. 

It is best for children to have two parents who love them well, and it is best to keep this in mind when your child wants to communicate with your ex.  

5. Drug or Alcohol Abuse 

This should go without saying, but any abuse of alcohol and/or drugs, especially if you are using these substances in front of your children, will be used against you in your custody battle. 

Engaging in this kind of substance abuse may put your child at risk. 

Someone who abuses these substances will almost always be seen as an unfit parent, so always avoid abusing drugs and alcohol around your children, and conduct yourself with care during the battle. It will likely get back to the judge if you were seen blackout drunk at a bar the weekend before, so you’ll want to behave as if you’re always being watched. 

In my case, my ex was actually arrested for law enforcement and thrown in jail for public intoxication. Something we are still battling in court to this day.

6. New Significant Other 

If you are dating someone new, it may be tempting to introduce them to your children. However, if your custody arrangement hasn’t been finalized, it’s best to hold off on that introduction. 

In the case of my divorce, I specifically put into the decree that both of us have to date someone a minimum of 6 months before introducing a new partner to the kids. And they have to meet with the other spouse first.

I did that largely because I knew my ex would jump into a relationship quickly (she did) and I know rebound relationships have upwards of a 70% failure rate. So I didn’t want the kids wasting time trying to get to know someone who might not be around that long.

Especially since we have a 4-year-old who still doesn’t really understand why mommy and daddy don’t live together anymore.

So, it’s best to wait.

As I alluded to, introducing your kids to a new significant other could be confusing and hurtful, and it’s best to avoid adding distress to their lives. Additionally, your ex-spouse might not be on board with this introduction, so doing so could cause drama with them and further complicate the custody process.  

Be respectful of the time your children will need to process this change. It is best to introduce any new partner to your kids gradually and after the custody arrangement has been decided and legalized. 

You also should not be living with a new romantic partner. The judge needs to know that the child has a safe place to live when you are in their care, and living with someone else is a red flag. 

7. Parental Alienation

This is where 1 parent intentionally tries to paint the child’s other parent in a bad light to taint their reputation with the child and ultimately drive a wedge between them.

Now, do note that this should not be confused with being honest in an age-appropriate way.

My older 2 kids both know their mom got arrested as one of them actually saw it happen (I wasn’t there). So naturally, there have been discussions around that and their mother’s sobriety. But I am encouraging them to be understanding, forgiving, and kind (something she’s not honestly offering me in return).

But make no mistake.

Actually lying to your kids or going out of your way painting your former spouse in a bad light could be considered child abuse and you could wind up in front of a judge.

Tips on Winning Your Custody Battle 

Custody battles can be overwhelming, emotional, and stressful. Here are some tips for how to win yours: 

  • Be willing to work with your ex-spouse. 
  • Keep your thoughts and feelings about your ex-spouse to yourself. 
  • Don’t use drugs, and don’t abuse alcohol. 
  • Stand up for yourself.
  • Have reasonable and realistic expectations. 
  • Don’t play dirty. 
  • Document everything your ex does or says against you. 
  • Get a lawyer. 
  • Show up to visit on time. 
  • Keep your emotions and your temper in check.  
  • Know details about your kids, including information about their school, extracurriculars, medical history, allergies, and friends.
  • Only trust your attorney. 
  • Put your children first. 
  • Don’t alienate your children from their other parents. 
  • Don’t make false allegations against your ex-spouse. 
  • Be respectful to everyone involved in the court system.  
  • Be involved in your child’s life. 

If you do these things, and you don’t do any of the things listed above that can be used against you in a custody battle, then you can know you’ve done everything you can to have the court order go your way. 

What is in the Best Interests of a Child?

At the end of the day, what’s in a child’s best interest is to have a stable, loving, two-parent home.

Assuming we’re past that and that is no longer possible, then the next best scenario is joint custody where they get to see both parents equally. Then ideally the divorce process would be agreeable and not get drawn out over a long period of time.

My ex and I actually drafted our own agreement and then had 1 lawyer file it.

That process was quick, easy, and inexpensive. And there was minimal conflict in getting it done. It was only later after her arrest that things went south as our teenagers no longer want to share custody with her and she refused to respect their wishes.

Then, lastly, it’s even more ideal if you can spend holidays and birthdays together so that it still feels kind of normal.

So the best interests of the child are what should be first and foremost at the top of everyone’s list. And that requires setting aside our ego, setting aside anger, resentment, and perceived wrongs our spouse has done to us for the sake of the greater good.

That’s not always easy, especially if you are trying to co-parent with someone who behaves in a toxic manner. But at the end of the day, all we can do is control ourselves and our own actions. So even with a toxic ex, you can still rise above and do the right thing and not allow them to drag you down.

How Does Contempt of Court Work?

Content of Court basically means you violated a court order; in this case likely the divorce decree or at least temporary orders.

That could be anything such as:

  • Not making child support payments
  • Not adhering to the visitation schedule
  • Refusing joint physical custody to your ex at the scheduled time

In short, you don’t want to violate a court order. Instead, if you have an issue regarding the best interest of the child that you feel requires a change in what the court ordered, you should seek out legal advice or child custody attorneys and file the appropriate paperwork.

You have a much better chance of getting what you want if you are going about it in a legal way.

Can Social Media Posts Be Used Against You in a Custody Battle?

In short, maybe.

My ex is actually currently making a claim regarding one of my other websites and a blog post that’s on there. So not exactly social media, but I imagine it would be treated similarly.

In truth, while she doesn’t mention the specific article, the only one published in the time frame she refers to is this one called 19 Proven Ways to Deal With a Crazy Wife (That Really Work!).

But there are a few flaws in her logic that she’ll find out about when we go to court. Those are:

  • I didn’t write that article (one of my writers did)
  • The topic was suggested to me by software I use that finds topics for me (RankIQ)
  • I didn’t add any personal stories to it
  • It’s about a crazy wife, not a crazy ex-wife

So in short, that entire article has nothing to do with her and wasn’t even written by me. Cue that old song “You’re So Vain” by Carly Simon.

How Long Does a Child Custody Dispute Take?

In short, if you and your ex are at odds and both challenging the custody rights of the other or even trying to end joint legal custody, the whole process can take 1 year or longer.

A substantial change to a child custody order would require a lot of deliberation and preparation, and it could be quite a while before you actually end up in front of a judge.

And unfortunately, the only people who really win in that situation are the lawyers.

Now if your kids are actually in danger with your ex, that’s one thing. But in that instance, it would be better to file a CPS report as they could issue a protection order to remove the kids from your ex (after a thorough investigation).

And that could happen far faster than dealing with custody matter through the court system.

Granted you’ll still likely have to do that to make it official. But in the interim, your kids will be safe and that’s what really matters.


The judge will determine custody of your children based on the child’s best interest, so anything you do or say that can be seen as being against a child’s needs will be used against you. 

This includes: 

  • Domestic violence.
  • Neglecting your parental responsibilities.
  • Critiquing your ex.
  • Disrupting your child’s life.
  • Abusing alcohol and/or drugs.
  • Introducing your new partner to your children. 

The best way to not have anything that can be used against you in a custody battle is to behave in the best interest of your children. 

Of course, I have to add that I am not a lawyer, nor do I know the laws in your state or country. I am, however, divorced (twice) and have recent experience going through one. However, my comments and articles should not be taken as legal or professional advice. If you need legal or professional advice you should consult family law attorneys in your area.

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