Melissa Isaak’s “Anatomy of a Custody Case” Part 5: Pleadings, Jurisdiction, & “The Best Interest”

In this part of our series, we unpack Isaak’s guidance on crafting pleadings, navigating jurisdiction, and tackling the murky “best interest standard,” plus her push for parallel parenting in high-conflict cases. Isaak walked fathers through the nuts and bolts of starting a custody case, emphasizing the complaint or petition. “You can file your complaint or your petition, those two things are used interchangeably,” she said, noting jurisdictional requirements. “Generally, you have to be a resident of the state that you’re filing in for at least six months. You must be at least 18 years of age.” (For example, Alabama Code § 30-3-1 requires six months’ residency for divorce filings, though Isaak noted variations like Alabama’s age 19 requirement.) She stressed precision: “You have to show the court, ‘I meet the residential requirements to file for relief in this court.’”

For married fathers, the place of separation matters. “Let’s say that you live in Texas, and the separation ends and it begins in Texas,” Isaak explained. “You move to Louisiana, she moves to Alabama. Neither one of you lived as husband and wife in Louisiana or Alabama. Who has jurisdiction on this divorce? Texas might.” (This aligns with laws like Texas Family Code § 6.301, prioritizing the state of marital residence.) Military families face extra complexity: “If you’re in Alabama because of military orders, you don’t have to submit yourself to the jurisdiction of the courts in Alabama,” she said, as federal law protects service members from state jurisdiction based solely on temporary postings.

Isaak outlined a basic complaint’s structure: “You have what court you’re in, you have the names of the parties, you have a case number, and you have what this is, this is a complaint for divorce.” It identifies the parties, confirms residency, and lists children and property. “You identify the children, you identify when they were born,” she said, noting differences in state practices (e.g., full names vs. initials). For unmarried fathers, the complaint must allege paternity: “You have to allege paternity, you ask for there to be certain types of relief.” She advised including specific requests, like adding the father’s name to the birth certificate or changing the child’s last name. “A lot of dads don’t realize that when they’re pro se,” she said. “It’s hard to go back years later and do that.”

She cautioned against overloading pleadings with details. “Pro se litigants try their entire case in their petition of their pleadings,” she said. “This is not the place to go into detail, ‘My mom said that her cousin told her that she was at Walmart the other day.’ This is just sort of a quick and dirty, ‘Hey, I’m meeting the jurisdiction requirements, and this is what we need to do with our stuff.’” If seeking temporary orders, like custody before a hearing, she advised brevity: “If you want a custody order or a parenting time order in place before the hearing, give a brief reason why, ‘Judge, this is what’s happening.’”

Isaak also urged fathers to include a catch-all phrase: “The husband should be awarded such other further or different relief to which he may be entitled.” This, she said, gives judges flexibility: “If something pops up, the other attorney says, ‘Hey, Judge, this isn’t before the court,’ you could say, ‘But Judge, I ask for any other relief that you feel in good conscience I should be entitled to.’” She even suggested requesting attorney’s fees, though she admitted, “How often do you think that judges really order women to pay us attorneys fees? Hardly ever. But we still ask for it.”

The “Best Interest Standard”: A Thorn in the Side

Isaak’s sharpest critique targeted the “best interest of the child” standard, a cornerstone of custody law. “The best interest standard is a thorn in our side,” she said. “You read it, and it reads good. Who’s the jerk that’s going to say we shouldn’t do what’s in the best interest of the child? But it’s applied in a very prejudicial manner.” She argued it’s subjective: “There’s no definition of the best interest of the child. It means whatever the judge wants it to mean.” (This echoes statutes like Alabama Code § 30-3-152, which lists factors but leaves broad judicial discretion.)

She cited scientific consensus ignored by courts: “We have a consensus, 110 of the most world-renowned social scientists have came to a consensus that shared parenting is the best interest of children.” Yet, she said, “The courts won’t adopt it.” This frustration mirrored Baskerville’s convention argument that family courts dismiss evidence to entrench maternal custody biases. For unmarried fathers, Isaak noted, staying involved post-breakup is critical to show commitment, even if access is blocked. “You have to continue to make a showing,” she said, like calling daily and documenting attempts: “Judge, it’s been six months since they broke up, let me show you his phone bill, he called every day at 6:00 PM.”

Parallel Parenting for High-Conflict Cases

In high-conflict situations, Isaak advocated parallel parenting over co-parenting. “Co-parenting is less becoming relevant, and parallel parenting is now becoming more relevant,” she said. “With co-parenting, there’s a lot of discussions, ‘We’re going to talk about this, we’re going to agree on this.’ That’s too much to ask for some parents.” Parallel parenting, she explained, suits high-conflict cases: “The judge says, ‘Okay, I understand that the two of you can’t really make decisions, so Dad, you’re going to have decisions when it comes to schooling and extracurricular, Mom, you’re going to make the decision when it comes to medical and religion.’”

She recommended tools like Family Wizard apps, where “every communication is recorded, they know it’s recorded, and these things are set up pretty much for the courtroom.” This approach, backed by social science, lets fathers argue for shared parenting despite conflict. “Even though we can’t get along, let me tell you why shared parenting is still in the best interest of this child,” she said, urging fathers to leverage research and apps to make their case. (For the record, I’m vehemently opposed to Our Family Wizard…but that’s a discussion for another day).

In the next segment, we’ll discuss Melissa’s advice on motions, counterclaims, and the perils of ignoring court papers.

-David B
Fathers Anonymous