PREPARING FOR CUSTODY LITIGATION -- ANOVERVIEW

Oftentimes, parents who are having maritalproblems make custody claims, not realizing the long-rangeimplications: Dealing with lawyers, guardians, and mental healthprofessionals; Having every negative aspect of their lives madepublic; Going through months, even years, of litigation inoverburdened courts; Spending inordinate amounts of money thathas been borrowed or taken from the sale of assets.

Oftentimes, both parents are good peoplewho, in the heat of the moment, because they are angry or becausethey want to try to better negotiate the financial aspects of themarriage, become involved in custody litigation.

Before a claim for child custody-- or visitation -- is made, certain basic preparation should bedone to determine whether the claim should be made at all. Andthat's the purpose of this program: If you are going to make theclaim, make it for the right reasons and make it to win.

There is no magic to how a custody disputeis resolved by the courts, only one simple rule:

What may be in a child's best interests isbased on the facts developed in each particular situation. Factsare developed by finding evidence which can be presented to ajudge who, after hearing sworn testimony and reviewing theevidence, will decide who gets custody and who doesn't.

So each case must be developed on its ownparticular facts. It used to be that the custody of youngchildren were generally awarded to the mother. Not any more. Thisis not to say, however, that it is not difficult to change thethinking of some judges who, throughout the years, have appliedthe theory that a child should be granted to the mother unlessshe is unfit.

The Courts have allowed grandparents toprevail over natural parents; fathers have prevailed overmothers; and third parties have, in some instances, been able tosecure custody and visitation. In appropriate situations,grandparents, and possibly other relatives or third persons, canbe granted visitation rights with a child.

Fitness is no longer a real issue unlessthere is extremely strong evidence of unfitness, which materiallyaffects the child's best interest. Even the adultery of a mother,regardless of the frequency of the same, if it does not reflectupon her ability to parent a child, is not, in itself, adisqualifying custodial factor. The Supreme Court has alsodetermined that a mother, who engages in an adulterousrelationship, even to some extent in the presence of a child, maynot be disqualified as a custodian, if she was repentant.

Generally, it is difficult to remove achild from a mother's custody, especially when a child is oftender years. Each case, however, must be taken and decided onits own facts and its own merits, looking toward the bestinterests of the child. There are no hard and fast rules.Generally, the party who is better prepared is the party whoshould prevail in a custody/visitation dispute, all other thingsbeing equal.

More often than not, custodians will use achild for the purpose of retaliation. This practice must bediscouraged. The use of a child to a party's own means, if it canbe proved, is a strong factor against the poisoning party beinggranted custody/visitation.

When an older child is involved, thatchild's preferences may be given weight by the Court, dependent,however, upon the other circumstances of the case.

An old wives' tale, which commonlycirculates among the lay community, is that if a supportingspouse does not pay support for a child, that spouse is notentitled to exercise visitation. Nothing could be further fromthe truth unless, of course, the Order of the Court ties togetherthe issues of visitation and support. This is very rarely done.

In any case concerning a child, the factsmust be appropriately prepared in order to first make apreliminary determination of whether or not to even seek amodification of an existing custody/visitation order or torequest a change of custody. >From my experience, the followingareas must be fully developed in order to allow me, as yourattorney, to make an objective determination of whether or notyou will be wise, based upon the facts of your situation, inspending the time and money necessary to seek the relief youdesire.

A custody/visitation action, which is notproperly prepared, and which is lost because of lack ofpreparation or lack of sufficient facts, is an extremelydangerous vehicle to ride due to the fact that the prevailingparty may be entitled to substantial attorney's fees and costs,to say nothing of the other expenses involved. Thus, your lawyershould give you as fair an appraisal as possible after review ofyour information.

Another area which is coming into use moreprevalently at the present time is the use of an independent guardianad litem for each child involved in such a proceeding. Thisis a guardian for the purpose of the suit. The Courts are slowlyrecognizing that a child's rights should be protected as betweenthe conflicting positions of the vying parties. This is yetanother expense which, sooner or later, someone is going to haveto bear.

Generally, there is no sense in going intoa custody/visitation proceeding without first securing the adviceof an expert, namely a psychologist or psychiatrist, who can makean evaluation of the entire family unit or proposed family unit.

There is no problem with, and noprohibition against, a therapist being hired immediately toevaluate a child and also your positions concerning the child;however, from my experience, although this may be appropriate asfar as the present situation is concerned, unless the adversaryis willing to submit to such an evaluation (and very few willsubmit to an evaluation made by your doctor even though thisdoctor is seeing the child in the interests of the child), thesituation will exist where each party is armed with apsychiatrist acting, more or less, as a "hired gun". Tosome extent, the opinions of the conflicting psychiatrists willwater each other down. This will reduce the effectiveness of, andto some extent annihilate, the medical testimony so that, in theend, the Court must look at the factual situation and make itsown determination of custody/visitation. Remember, what a childtells you is not admissible in Court; however, what a child tellsa therapist as part of a medical history is admissible and can betestified to by the therapist.

To avoid the "hired gun"syndrome, you may decide to move before the Court for an Orderseeking an evaluation of all parties by a therapist appointed bythe Court, whom the Court finds to be appropriate, fair, andimpartial. These are some options which you must face and decideupon; however, without a complete factual background, I will notbe in a position to make a determination of what position needsto be taken as far as such an evaluation may be concerned.

Obviously, in order to properly prepare andevaluate your claim, it is absolutely necessary that all factsand circumstances be provided to me by you in as frank and candida manner as possible, as these facts will be relied upon by me inevaluating your particular situation.

Answer the following separately, onseparate sheets of paper, and do not forget to state, withparticularity, the plan of custody that you would propose if thischild were awarded to you or, if this is a visitation issue,plans you would have available for the child.

Remember, do not make elaborate plans youcannot live up to. Be as down-to=earth with your plans aspossible. You do not want to make it appear that this child willbe living in a vacuum or be shielded from the world. Judges andpsychiatrists, like everyone else, know that in today's society,children are going to stay in nurseries when the parents areemployed. There is no stigma involved in a child staying in anursery or day care so long as the care provided is of a suitablenature and so long as employment is necessary.

1. The name of each child involved; date ofbirth; present custodial arrangements.

2. Your present address, both business andresidential, and that of the adversary.

3. Your date and place of birth and that ofthe adversary.

4. The present marital status of allparties involved. If married previously, the number ofdissolutions, where the dissolutions took place, the groundsthereof, children of any prior marriage, where these children arenow, any adoptions or termination of parental rights proceedingsin which any prospective party has been involved.

5. The number of children you have raised,or cared for, either as a parent, custodian, or otherwise;likewise with the adversary.

6. The occupations, incomes, work hours andshifts, job benefits, and other information concerning employmentof all prospective parties.

7. Any physical or emotional problem forwhich any prospective party has required treatment. The type ofillness, who treated the same, the address of the treatingphysician, length and place of hospitalization, and presentstatus of the problem. If treatment continues, what medication isprescribed, have any applications for disability payments beenmade and, if so, where. Are there any existing physical oremotional difficulties which would prevent any prospective partyfrom maintaining a minor child? If any of the foregoing hasoccurred, rest assured it will be an issue, and such issue needsto be resolved and dealt with prior to any hearings in thismatter.

8. Any medications of a tranquilizer,sleeping pill type, or any other type, taken by any prospectiveparty, which may be contra-indicated for doing any type of work,etc; who prescribed; for how long.

9. Has any prospective party been convictedof any criminal offense, either felony or misdemeanor, and if so,when, where, and what offense.

10. The names, addresses and telephonenumbers of prospective witnesses concerning your claims, whichwitnesses you feel would be beneficial to you, and which would beadverse to you; have you talked to these witnesses? Other factsand circumstances concerning these prospective witnesses whichyou know personally or have been advised of by third persons. Ifany of these prospective witnesses has been convicted, usesdrugs, or is mentally or physically disabled, please so state.

11. From your personal knowledge, or fromwhat you have heard, what physicians psychiatrists,psychologists, or other medical personnel have treated the childin question. So any of these professionals continue to treat anychild in issue? What are the reasons for this treatment?

12. Write a history, based upon yourpersonal knowledge, and what you may have heard from thirdpersons, including the names of the third persons, of each childin question. Make it as specific as you can concerning thischild's present situation, what you know about the child's past,and such other relevant information as may be of assistance inthe preparation of your case.

13. If any prospective party is involved ina domestic relations action at the present time, other thanconcerning the issue of custody, state specifically the nature ofthat action, the present status thereof, and where it is beinglitigated.

14. The names and addresses of any persons,including babysitters, nurses, nurseries, day care centers, orothers, who may be aware of any aspect of the custodial issues.People do not like to get involved in Court cases, mostparticularly custody cases, and I am interested in any thirdperson who may be aware of the day-to-day routine of the child.

15. If you are awarded custody, state whatplan of visitation you would agree to for the adverse party andyour reasons therefore. Likewise, if you are requestingvisitation, what are your preferences and reasons therefor.

16. What schooling is available in yourarea which would be attended by the child? What school ispresently attended?

17. Describe the daily routine which youhave provided or will provide for the child, including bedtime,daily activities, hygiene, and other facets of normal day-to-dayexistence.

18. The educational status and level of anychild in question, whether the child has taken I.Q. tests;whether the child has failed any grades; and what you know as faras the child's teachers are concerned. If you feel any of theteachers, the principal, or the keeper of the school recordswould be beneficial to your case, state their names, addresses,working hours, and telephone numbers. Try to secure copies ofrecords of the child's attendance, grades, etc.

19. Although inadmissible in Court, providea written summary of what you feel is the child's viewpoint ofthe present custodial situation and the present visitationprovisions, as may have been told to you by the child. Who waspresent when this may have been discussed.

20. The quantity and quality of time youhave spent with the child in the past, in as much particularityas you can. Describe any emotional ties which may exist betweenyou and the child; likewise, between any prospective adversaryand the child.

21. What is your assessment of the child'sphysical and mental health at the present time, based upon yourknowledge and, if told to you by third persons, what the thirdpersons have said.

22. What is your assessment of the mentaland physical health of your prospective adversary?

23. The educational backgrounds and thenumber of jobs held in the past five (5) years by all prospectiveparties.

24. Describe in detail your residence,namely the physical facility, where the child would be. It isgoing to be necessary for you to provide photographs of thisphysical facility as to each room so the same can be presented tothe Court. Please be sure to use color film. Likewise, describeany other prospective party's residence.

25. Peer groups and peer contact areextremely important to children. What type of neighborhood doeseach prospective party live in, including the availability ofother children.

26. Write everything you know about eachadverse party's background and the adverse party's familybackground.

27. Write a summary of your basicmotivation for becoming involved in litigation concerning thechild.

28. Outline your hobbies, social and civicactivities, and what you do with your free time. State thevacation policy of your employer. Provide your religiousbackground and your participation in religious activities in thecommunity and what religious plans you would have as far as thechild is concerned. If the child is presently receiving religioustraining, please state where and from whom. Give the name andaddress of your minister or spiritual leader, along with histelephone number.

29. If you are granted custody of thechild, or visitation is granted or expanded, would youparticipate with the child in activities such as Boy Scouts,Little League, etc?

30. State your complaints about anyprospective adverse party as far as the issue of this child isconcerned.

31. To your knowledge, have you made a badimpression on any person in the community or in yourneighborhood? If so, state how and to whom. Has your prospectiveadversary, according to your knowledge or information provided toyou by a third person, made a bad impression upon people in thecommunity, and if so, state with particularity what you knowabout this situation.

32. Keep a diary of daily events concerningyour relationship with the issues involved.

33. Has the child been physically oremotionally abused? If so, who has treated the child, who abusedthe child, and what were the circumstances? Was a police reportmade, was the child taken before the Family Court, was the abusertaken before the Family Court, and if so, was there a dispositionof that cause?

There are a number of areas which you donot want to get into. One of these areas is arguing with a child.Another is using the child for your own purposes. Although Irealize such may not be intentional, these things do happen,especially in a heated contest, and I would strongly suggest yourefrain from this. Be a good listener and keep notes.

Do not attempt to block the adverse party'saccess to this child. If you are operating under a Court Order,obey it. If there is no Court Order, I would suggest making thechild available to the adversary for such periods of time as mayappropriately fit within the child's schedule and your schedule.If you have any question about danger to the child during suchcontact, advise me immediately.

Do not, under any circumstances, attempt tobe the child's therapist. If you are required to go to anevaluation by Order of the Court, or if you choose to seek theuse of a therapist concerning this child, remember to go to thetherapist on a child-oriented basis and not to discuss yourpersonal problems. Many people have the tendency, upon seeing atherapist, to try to get some ideas about their own lives. Whatwill be most impressive to the therapist is your ability toretain a child-oriented posture throughout the period of theevaluation and/or treatment, if treatment is necessary. Tell thetherapist the truth and so far as the adverse party's faults areconcerned, provide the therapist with that information, but onlyas concerns the interests of the child, and how it has affectedthe child.

Although I do not want you to withholdinformation from the therapist, you will probably be hearingeverything you tell the therapist when the therapist comes toCourt to testify. I would be extremely careful about discussingany gray areas with the therapist. You should see me before anyappointment if you have any questions.

Do not buy the child presents or bestowfavors upon the child in an effort to turn the child in yourdirection. Please remember that with young children, and withsome older children, the last person who sees the child or hasthe opportunity to talk to the child prior to an evaluation willprobably force his feelings upon the child, and the child willtake on those feelings. This is entirely normal and natural, andall qualified therapists are familiar with this. Consistentdiscipline of the child is essential.

I would suggest that you not discuss yourplans concerning the custodial issue with any person but me. Itis of utmost importance that the information provided to meherein remain confidential. I want you to provide me with all ofthe detrimental information about yourself, as well as thebeneficial information, as, sooner or later, we are going to haveto face whatever may be classified as detrimental, and I wouldprefer the ability to prepare for such an attack.

Don't say anything to any person you do notwant to have repeated in Court, either by telephone or in person.

Don't make statements to the child whichyou would not want repeated as the child may repeat thesestatements to the psychiatrist or to the Judge.

Don't leave a child with babysitters ornurseries if it is unnecessary. If a child must be left in anursery or with a babysitter, remember to call and check on thechild to show your interest. If you have time, go by and see thechild for brief periods.

Don't take the advice of friends,neighbors, or others who have "been through it". Eachcase must stand or fall on its own merit, and there is no use inattempting to compare other person's situations with your own.