Melissa Isaak’s “Anatomy of a Custody Case” Part 3: What NOT To Do
In this third part of our series, we dive into Melissa’s guidance on strategic decisions: filing first, leaving the residence, and managing finances; and she discusses how fathers can avoid common traps in custody disputes.
Isaak tackled a question fathers often ask: “Should I file first? Is there an upside to being the plaintiff?” Her answer was nuanced: “Sometimes there is, sometimes there isn’t.” For married fathers, timing can be critical. “If you’re in a marriage and there’s a separation and let’s say you move out of the house and you wait two years to file, well, what you’ve done is you’ve sort of established a status quo,” she warned. This “status quo”, where children primarily live with the mother, can haunt fathers later. “You sort of set a precedent that you don’t want to set,” she said, explaining that courts may view the mother as the primary caregiver, reducing a father’s chances for equal custody. “You say, ‘Well, I waited this long because I wanted to see if our relationship could be reconciled.’ But you can actually hurt yourself in a custody case later.”
In cases of abuse or adultery, Isaak urged swift action. “If there’s abuse and you’re the victim, I wouldn’t wait for that, especially if there’s children involved,” she said. Adultery also demands urgency, but with a catch. “If you have proof positive that your spouse is committing adultery and if you wait too long or if you attempt reconciliation, a lot of states would have what they have what’s called forgiveness under the law,” she explained. She shared a common scenario: “We have clients who come in, they have proof positive of an affair: admissions, they have hired a PI, they have pictures, text messages, you name it. A lot of times, the woman will attempt a reconciliation after consulting with an attorney because if you reconcile with her, that’s forgiveness under the law.” The result? “Six months later, they file for divorce, they leave, and the adultery has far less impact.” (This “forgiveness” concept, sometimes called condonation, appears in state laws like Texas Family Code § 6.006, though Isaak didn’t cite it directly.)
Isaak’s advice wasn’t about pushing divorce, “I’m not an advocate of divorce, I certainly am not,” she clarified, but about spotting manipulation. “I’m not an advocate of manipulation either,” she said. “If you’re in a situation where there’s adultery, you have to really look close to the behaviors and say, ‘Do I need to file right now, or do I not?’” She noted a gender disparity: “Men are the defendants 85 percent of the time. Men do not like to file. Men will talk to attorneys and they’ll get their options, but they don’t like to file.” Yet, she argued, “Sometimes it’s in your best interest, it’s in your legal interests, and it’s in your interest as a parent to file first.”
Leaving the Residence: A Risky Move
Another hot-button question was whether fathers should leave the family home. “If I leave the house, can she claim abandonment, and will it affect my custody case?” Isaak called this “a very good question, it’s a very fair question.” Her stance was firm: “If there’s domestic violence, I do not recommend you stay in the house. If you are being abused, I do not recommend you stay in the house.” She reiterated the bias men face: “When the police get there, guess who goes to jail? You do.” Leaving, she said, is safer, but it requires strategy. “If you leave the house and if your children are there, you probably need to seek legal counsel and get something filed because you don’t want to stay gone too long and leave your children in the hands of an abuser.”
Abandonment claims, Isaak reassured, are tough to prove. “Can she claim abandonment? The answer is abandonment is extremely difficult to claim,” she said. “I’ve never seen it, not in any state.” But time matters. “If you leave the house and the children are with her, make sure the children have what they need,” she advised. “Text messages: ‘Do the kids need anything? Hey, I’m dropping off a check for 300, this is for extracurricular expenses.’ Have a showing that you’re still actively caring for your kids.” Lingering too long without filing can hurt. “If you leave and there’s seven, eight, nine months between the time you file, there’s a lot of alienation that can go on in nine months,” she warned. “You may not have access to your children, as much access as you want to, and it could really affect your case.”
Financial Pitfalls: Bank Accounts and Child Support
Isaak also addressed financial strategy, starting with bank accounts. “Can I get a new bank account?” she was asked. Her advice: act before divorce proceedings begin. “If there’s a divorce on the horizon and you want to open up another checking account, another bank account, do it before the divorce is initiated,” she said. Why? “That bank account is considered marital property. You say, ‘Well, her name’s not on it.’ It doesn’t matter. If it was used during the marriage, the court can take jurisdiction over that bank account as marital property.” Post-filing, courts frown on unilateral changes. “The judges and the courts get very upset if you modify those accounts unilaterally or without leave of the court,” she noted.
On child support, Isaak dropped a bombshell: “Do I have to pay child support while I’m still married? Maybe, yeah, you might have to.” She called it “absurd” but real: “You can separate, move residences, or you can even be in the same house, and a woman can file for child support, and you could be put on child support while you’re still married, living in the same house.” (This is possible under laws like Texas Family Code § 154.001, which allows support orders during separation.) She noted men’s reluctance to file for divorce in these scenarios: “I’ve never pushed anyone into a divorce,” but the reality is, “Men don’t like to file for divorce.”
For bill division, Isaak advised sticking to the marriage’s status quo. “If both you and your spouse are gainfully employed, make about the same amount of money, then it’s reasonable to ask the court, ‘Yeah, we should split the debt,’” she said. But she cautioned against unreasonable demands: “Where dads sometimes get themselves in trouble is they say, ‘You know what, she cheated on me, we’ve been married for 15 years, she’s been a stay-at-home mom, you pay the bills.’ And the judge is going to say, ‘Really?’” Judges, she said, “look to the status quo in the marriage,” and fathers must appear reasonable to avoid alienating the court.
Navigating a Biased System
Isaak’s strategic advice was a lifeline in a system she openly criticized. “I’m not standing here saying that I agree with everything, I agree with the law,” she said. “I don’t think half of these laws are fair. I think the courts can be biased.” Her focus was survival: “What I want to tell you is how you navigate your way through a system that is biased, laws that aren’t fair, and try still to get a good result.” Her call to file first, leave strategically, and manage finances carefully was about staying one step ahead in a rigged game.
In the next part, we’ll explore Isaak’s deep dive into discovery: how bank statements, phone records, and interrogatories can dismantle false allegations and build a winning case.
-David B
Fathers Anonymous
