After that last post, it is sad that we can not help these moms, except to reach them before they enter family court nightmare. Readers please share this freely, we can not create justice in an unjust system. We can not fix it. All we can do at this point is ‘avoid’ to the best of your ability, the things that will choke the life out of you when you dare to walk into family court with the insane notion that ‘Justice’ will prevail. Be smart. Think. Think. And then, Think some more.
MISTAKES MOTHERS MAKE
in Child Custody Litigation
Mistake 1. Making threats, complaining, antagonizing, provoking, telling the other side what information you have and what you know, and otherwise disclosing your plans. Don't make threats. Don't complain. Don't exacerbate the situation pointlessly. The fleeting psychic satisfaction isn't worth it. And above all: don't tell the other side what you know, or what information you have and what you're going to do with it. The threats are particularly stupid when they're empty. All they will do is motivate him to better prepare his case. Even if they're not empty, you've lost the element of surprise, and given him a heads up how to prepare his case against you. (And be careful about what you tell mutual friends and coworkers. Too many of them end up being his friends. That includes what you put in writing or on-line or on other electronic devices that make records: email, Facebook, Twitter, cell phone bills, your vehicle's GPS and toll passes, your computer hard drive, all leave discoverable evidence.)
Mistake 2. Failing to prepare. Don't file a lawsuit (and don't threaten to file one -- and do everything possible to keep one from being filed against you) until you have copies of all information, especially all financial information and legal documents, that you will need stored with family or friend in a safe place, including a complete copy of the hard drives of household/shared computers (call a professional to do this). Also safely store away all jewelry and precious tangible items, as well as irreplaceable sentimental items such as old photographs. Carefully think through who controls what assets (and in the case of household utilities who has the power to shut them off.) Make a plan to segregate debts, and to assure that debts that will affect your credit rating will continue to be paid. Have at least one separate bank account and ready access to cash. Discuss your future case with a lawyer, or preferably several lawyers. Talk with an accountant (not the family accountant). Thoroughly consider what you will do for income, living arrangements, transportation, and other needs. Have your own medical insurance for you and the kids. Make sure that email accounts are separate and under passwords that only you know, and that you have private communications. Make sure that on-line social, financial and medical accounts are private and passworded. Get a post office box for private mail. (And forpetessake don't use the cell phone he gave you to talk to your lawyer!)
(a) Failing to close joint credit lines. Before "anyone" knows you're planning to get divorced, to the extent possible, close all home equity and joint credit card lines that can be run up and used to destroy your credit, fund litigation against you, and disappear your assets. Pay down the debts for which you are separately liable. (Even if debts are "assigned" to be paid by one or the other party in a divorce, that does not bind the third party creditor, who can still come after you.) This rule also applies to signing joint tax returns. See Mistake 9(a), below.
(b) Filing for divorce near the 10-year social security spousal entitlement date. If you're married for ten years, and you're the lesser-earning spouse, especially a stay-home spouse, this could mean a lot of retirement money in the future. Don't file for divorce in year 8 or 9 without making this calculation.
(c) Not trading in the old car for a new one, not putting braces on the kid's teeth, or not obtaining that elective surgery "now". These involve big ticket expenses that do not result in having divisible assets, but are or will be needed or wanted fairly soon, and may be far more difficult (or impossible) to purchase later on your own, when cash or credit is low, or when you need his agreement or a court order to obtain contribution. Buy them now with marital funds. Other big ticket expenses could be prepaying college tuition, the kid's tennis lessons, or for next year's summer camp.
(d) Not living in the jurisdiction you want to live when you file for the divorce. Don't relocate in the first place to follow the spouse to some remote, undesirable, or iffy new location. Maintain your permanent residence where you want to live, especially if he's got a temporary assignment. If your marriage breaks down in the new location, you and the children may be stuck there for a very long time. (And if you have minor children, do not ever, ever, ever move -- or bring them even temporarily for a visit -- to any country such as Saudi Arabia with Muslim sharia laws in which, because you are a woman, your freedom to travel, and your authority over your own children, including leaving with them, can be restricted.)
(e) Having your baby in a state (or country) in which you may not want to live for the next 18 years. The state where you give birth has initial jurisdiction over that child. If you're pregnant and not married, go home to mama. Do not be lured back to live with him while you are pregnant. Especially without having a job or substantial ties, family and friends, in the area. Even if his entreaties to become family or get engaged are not a ruse, if it doesn't work out, you're stuck. Possibly for the next 18 years. You can always do the "let's move in together", "let's get engaged" or "let's try it and see" later. Fewer and fewer courts these days are permitting women to relocate with their children.
Mistake 3. Making the custody case primarily about how crappy the man is instead of about the children (usually while professing to be "agreeing with" the proposition that the child "needs a relationship" with the father and/or pretending to be fostering this flimsy fuzzy idea). Not focusing on specifics of what the child needs and the observable tangibles: the child's developmental age, habits, temperament, needs for consistency or stability; the parents' work and school schedules; the child's work and school and sleep schedules (and extracurricular activities that are important and why); other persons in the respective parents' families, households and lives; the quality of the households and homelives of the parents; the parents' respective socio-economic positions, backgrounds, education, and particular things each can offer (or not); how the child might better benefit from this or that schedule rather than another and why; time constraints, the pragmatics of traveling and everyday life; the quality of the communications between the parents; and so forth.
Mistake 4. Filing for child support, or a child support increase, if there is any way you can manage without it. This is the number one way women end up in custody litigation, losing control of their lives, and possibly losing custody of their children. In too many cases of "custody switch", everything was going fine, and something (the ex's financial windfall, or her family) got her motivated to head into court for more child support. He frequently counters with a bid for increased time share, including a litany of accumulated wrongs she's ostensibly perpetrated as the primary custodial parent. The money is rarely worth it.
Mistake 5. Going to a mental health therapist or psychologist. Don't have -- and don't make claims of having -- any kind of emotional disability, disorder, anxiety, depression, inability to cope, or other dysfunction, if you can possibly avoid doing so. Especially do not leave a record of it on his insurance. Cry in the shower, go to church, meditate, or take up jogging. Exercise helps; therapy really doesn't. Drugs don't. Many lawyers endorse going to therapists because they don't want you wasting time and money venting to them, or you're rambling, unfocused, and using them as a sounding board. Some are just spouting the "common wisdom" promoted by mental health professionals. If you absolutely, positively must vent with one of these paid listeners for hire (therapist or psychologist) -- or a physician/psychiatrist but only if you're truly dangerously dysfunctional -- then do not tell anyone you are going, pay cash, don't get or fill prescriptions where any record of that can be discovered, and do not take any of their advice that remotely affects legal or financial issues.
Mistake 6. Taking the children to a therapist. There is absolutely nothing therapy from a mental health practitioner can do to fix a crappy situation. Fix the situation; don't try to train children to cope with it. If children are having problems, then it's far more likely than not that it's the adults around them who are doing something wrong. If they need academic tutoring, then seek that; not mental health therapy and unnecessary diagnoses. Fixing the situation is the only "therapy" that will help. And don't make the mistake of thinking that shlepping the kids to a therapist is a way to "build your case", create "evidence", or get a third party to testify to the children's "disclosures". It isn't. Better they "disclose" to a teacher in school. Judges have become jaded about clinical therapist testimony, especially therapists unilaterally selected by mothers, who are seen as biased advocates with next to no credibility in court (assuming they're even permitted to testify.) If children are physically injured, see a physician. If children are abused, call the police. If you're abused, call the police.
Mistake 7. Claiming that the children have physical, emotional, or academic disabilities, and therefore especially "need" you. One thing that helps mothers lose custody is to emphasize or fabricate claims that children are dysfunctional in some way, and hence need them, the primary caregiver under whose watch the kids haven't done so flippin' well. If the children do have disabilities, then de-emphasize these problems, and document realistically how the children have improved, and how well they are doing academically and in all other ways. Judges like to see happy people and well-adjusted children. They're burned-out on complaints, have seen far worse (atrocities), and have hardened sympathies. The reality is that unless you or the children are at actual imminent risk of life or limb, your chances of getting primary timeshare will be greater if you appear to have a beautifully functioning life with beneficent feelings for all, than if you or the children are traumatized, victimized and needy. (If this is impossible, then at least project yourself as a capable well-adjusted parent who is managing optimally under the circumstances).
Mistake 8. Claiming that the children prefer you as parent. If this is true, and if you're the better and more attached parent, it should be obvious. Stating that the children want or do not want this or that also is poisonous to your case (if there are good reasons for what they "want", then the facts alone underlying those reasons should be sufficient -- leave the children's feelings out of it.) If he's abusive or incompetent, you may need to articulate the facts, but only in a balanced way (see item #13 regarding how) without harping and without exaggerating. Custody evaluators especially want to see that you have a rational point of view and can point out "strengths" as well as weaknesses. Also bear in mind that anti-mother fatherhood-exaltation custody evaluators and guardians ad litem (most of them) particularly recoil when women emphasize their super-close loving relationships with their children. Perhaps they resent that they themselves don't have these kinds of relationships with their own children (or any children at all), or as children did not have a good relationship with one or both of their own parents. These professionals too often seem to have their own emotional and family issues, or at best are in it for the money. Any mother who appears to be emphasizing the difference between how the children feel about her versus their father is setting herself up for charges of being a parental alienator, "enmeshed", overly protective, controlling, angry, depressed, vindictive, and other mother-dissing phenomena. Also for father-sympathetic increased timeshare or "therapy" to improve the father-child relationship.
Mistake 9. Allowing your lawyer to make substantive decisions, or to pressure you into signing agreements without adequate time to think about it. It's your case. Your job is to make it easier for the lawyer to promote your case, and to find out what you need to do to accomplish your goals, working together. Read The Good Attorney-Client Relationship, and the Custody Prep for Moms website (linked above). Do not ever let your lawyer attend any court hearing or conference without you, or make any agreements in your case without previously discussing the matter with you and giving you time to think about it and decide. (Unless you're more sophisticated in these matters than the other side, that includes pressuring you to sign agreements at mediation too. If it's such a great agreement, it will hold for a day or so.) Make sure your lawyer understands this and agrees. Don't cave to threats from your lawyer of withdrawing or future demands for big lump sums for trial if you don't settle. (That's extortion, by the way, and should warrant bar discipline.) Some common seemingly minor things agreed to hastily or under pressure, but which can have long-term bad consequences, include:
(a) Signing, or agreeing to sign a future joint tax return. Be very careful about doing this unless the assured benefits far outweigh the risks, especially if he is self-employed or cheats on his taxes. "Outweighing the risks" means that the money is not merely promised, but in hand.
(b) Not being the owner of the life insurance policy. There are three roles in a life insurance policy: the owner (the person in contractual privity with the insurance company), the insured, and the beneficiary. Being the beneficiary is useless if you are not also the owner of the policy with the ability to control who the beneficiary is, or even whether the policy gets cancelled. Too many women have discovered that they can't collect a cancelled insurance policy from a dead man's estate.
(c) Agreeing to a "right of first refusal" that's not well thought through. This rule also applies to anything of importance that is hastily drafted by a mediator or lawyers at a settlement conference.
(d) Agreeing to a "temporary" timesharing solution -- or "temporary" anything else, such as aparenting coordinator -- that you know is difficult or unworkable, or as to which you have doubts. Just don't agree to "try it and see". Say no. Temporary agreements have a way of becoming permanent, or at least extremely difficult to get changed. Contra, adequate temporary financial support if you easily can get it and it's not so much that it will motivate him to up his timesharing demands.
(e) Agreeing that the family home is a "bad investment", or too expensive for you, and should be sold. Many financial advisors will give this advice as a rule of thumb. But occasionally they're wrong. Everyone still has to live somewhere and housing costs are going to be incurred no matter what. So "it depends". It's not like you can trade the residence for a stock portfolio and live on the street. The financial advisor's assumptions may or may not be correct. Moreover, life is to be lived, and quality and neighborhood counts, especially for kids. There are value judgments here in addition to purely quantitative calculations. The decision should not be made based on shoot-from-the-hip truisms uttered by pencil-pushing strangers (or the other party's desire to minimize support obligations.)
(f) Seeking supervised visitation when it's inappropriate. Unless you and your lawyer both think that there's a good chance that he's going to be criminally convicted of domestic battery or child sexual abuse, or you and your lawyer both are pretty sure that you have or will obtain evidence warranting the termination of his parental rights or at least the permanent cessation of all contact (rare), or you can out-litigate and out-spend him until he goes away, or you're desperate to protect the children even for a short time (and after that come what may), or your situation fits within one of the other limited appropriate uses of supervised visitation, cavalierly seeking this remedy is a way to make an expensive complicated mess of your case, guarantee the appointment of a GAL and probably also a custody evaluator, and place yourself at a 50-50 risk of ultimately losing custody.
Mistake 10. Failing to attend every single court hearing and case management conference. The overwhelming most of the time when bad things happen to mothers in litigation, they happen, or the seeds are planted for them to happen in the future, when their lawyer agrees to something without consulting with them. These mistakes include the "innocuous" agreements for the appointment of or choice of custody evaluators, parenting coordinators, therapists and GALs. (See mistake #11, below). Two heads are better than one, and you know the details of your life and needs better than your lawyer does. At worst, a lawyer who says that youshould not or may not be present, or does not tell you in advance about every single case event, is more likely than not deliberately or stupidly or lazily going to end up doing something you may not like. Alternatively he may sincerely believe that your presence harms your own case (in which event he should have the balls to tell you this outright and explain why). At any rate, if your lawyer does not adequately inform you so that you can be present, or tells you that you should not or may not attend, then be assured that he is unlikely to be doing so out of concern for your personal time and schedule.
(a) Failing to insist on having a court reporter at every single hearing.This includes short motion calendar hearings and case management conferences, no matter how ostensibly unimportant, and no matter whether they're supposedly "taped" by the court. Do not ever let your lawyer suggest that you do not need a court reporter. A lawyer who does this is not representing your interests. It's not a money saver; it's penny-wise, pound-foolish. When it's documented, everyone behaves better, and you have the record you might need on an appeal (or when you hire a new lawyer.)
(b) Failing to keep on top of and understand your case. It's your case. You need to understand it, you need to demand all information about it from your lawyer, you need to know exactly what is going on at all times, and you need to be making the decisions and receiving all information necessary for you to make the decisions, including -- after explanation, when you are so inclined -- allowing the lawyer to decide between thoroughly described alternatives.
Mistake 12. Letting your own parents badmouth the ex in front of the kids. You'll be blamed as the parental alienator. They don't understand that times have changed. They only know that their own child has been wronged, and too often, won't shut up about it. Sad fact of life. More and more these days, it seems as if it's the grandparents who indirectly are the parties in these cases. It's great if you have their emotional or financial support, but do make sure they are up to speed on what helps and what hurts.
Mistake 13. Not learning the difference between telling people what to think and articulating the facts in a way that will induce them to come to their own conclusions that accord with yours. If you're in custody litigation or any court case, you will be testifying as well as telling others such as your lawyer the facts of the case. Credible witnesses talk about what they saw and heard. People tend to be much more convinced by their own conclusions drawn from descriptions of what happened than by conclusory statements such as "he's abusive". When neutral people are told what to think, their minds start weighing and silently arguing with your conclusions. By contrast, when they are given facts, they may ask for more information, but they don't feel the same need to mentally interpose their judgment against yours for the sake of balance. Good testimony is when you paint a picture for the other person by describing what you saw, heard, felt, tasted or smelled. Bad testimony is telling others your opinions, whether formed from your personal observations or from what other people have told you.
Mistake 14. Choosing a lawyer because he or she tells you what you want to hear. (Usually, the lawyer who gives you this kind of sell job actually is letting you mislead yourself by using vague language -- but the written retainer agreement may "sound" very different, e.g. "no guaranteed results".) Also be wary of the lawyer who sets fees unrealistically low (a risk that the lawyer will not be motivated), or in the celebrity stratosphere (a risk that your case may be made unduly complicated, churned with crony referrals and unproductive shenanigans.) Conversely, you do not want to hire a lawyer who tries to impose on you the lawyer's ideas of what your goals should be, or what is in the best interests of your children. This is not the same as a realistic assessment of your case, or asking questions to elicit why you hold the position you hold. Listen carefully to what the lawyer says. Ask "why". A lot. When you interview a lawyer, you should be able to articulate a reasonable outcome that you would like to achieve, and, although some will disagree with me, I think that the lawyer is going to be more creative, certainly more convincing, if he or she cares about the outcome -- beyond "winning" -- and is in actual ideological agreement with you. Consider the lawyer's own personal background. Ask about it. The lawyer also should be able to explain to you how realistic or difficult or expensive or not it may be to achieve your goals, and your options. Your lawyer is not there to give you emotional support, or to terrorize and punish your ex. The lawyer is there to work for you, to strive to get as close as possible to your reasonable goals while also attempting to limit the amount of pain and cost for all concerned without compromising those goals.
Mistake 15. Failing to set long-term goals, and not keeping the end-game in sight. Don't allow your case to get waylaid and off on money-wasting, time-wasting, or counterproductive tangents. Disputes over relatively unimportant issues. Squabbling over minor financial matters. Visitation timing minutiae. Discovery delays. Getting sucked into the bog of a custody evaluation. Remember where you want the case to end up, and how you want your family situation to look in the short term and long term. Keep the lawyer on track by asking how this or that suggestion or strategy or legal maneuver may help move you toward your goals.
[This article was discussed May 5, 2012, on The Justice Hour radio show hosted by family lawyer Lisa Macci; and subsequently supplemented with additional "mistakes". To listen, download (wma) or (mp3) file. Re the above (Mistake #5) regarding the over-consultation of therapists, see the archives and listen to the May 22, 2012 show with Harvard psychologist Paula Caplan on DSM corruption and the APA.]
RESEARCH AND CITATIONS
RESEARCH RELEVANT TO CHILD CUSTODY ISSUES
"RULE OF LAW" vs."RULE OF MAN"
A common theme underlying nearly all the problems in the family courts is the sloppy float away from the "rule of law" to "rule of man". The "rule of man" describes such things as dictatorships, decision-making by whim, discretion without oversight, vague standards that cannot predictably be anticipated or applied, faux-expert recommendation-making and opining such as with mental health professional parenting evaluations, and the panoply of therapeutic jurisprudence interventions such as parenting coordination and special mastering. All of these abrogate due process, and the fundamental principles on which our system of jurisprudence was founded. The ideas have been pushed by the mental health lobbies and by individuals who either don't understand or don't care about some higher priorities.
"Rule of man" is a concept that we ditched with the formation of this country in favor of "rule of law". Our founding fathers recognized that there is no way to regulate or oversee individuals given too much discretion or dictatorial authority. With regard to the family courts, I keep hearing and reading what are essentially inane pleas to fix the various misguided ADR programs via "guidelines" (aspirational only, and with immunity from sanction for misfeasance), and for "trainings", and for getting rid of those who are "incompetent" -- all of which suggestions exhibit an astonishing lack of appreciation for the stupidity inherent in these extra-judicial ideas -- ideas which Thomas Paine and our founding fathers would have abhorred (see, e.g. Common Sense). Dictatorship cannot be permitted not because there couldn't (theoretically) be some wise and beneficent dictators who would be better and more efficient than the messy system of due process and checks and balances we idealize, but because under that dictatorial system we inevitably and primarily will suffer the fools, the tyrants, and the corrupt. And that's without addressing the panoply of other constitutional defects. Besides, no scientifically sound research actually establishes "harm" from the adversarial system -- or benefit to families' well-being from applied therapeutic jurisprudence. These ideas were invented in mental health trade promotion groups as lobbying talking points. (If you doubt this, feel free to contact me for more information.) Yikes. What are we doing. To the extent we've been sold a bill of goods, swampland, snake oil and the voo doo of "expertise" by the mental health professions, at least until relatively recently, the stuff wasn't harming our legal system. Now it is. Wake up, and wise up.
What we do need are some realistic changes in the substantive laws addressing divorce and child custody. What we don't need is a revolution in procedural rules and the overthrowing of individuals' constitutional rights.
For my list of rants, see the index to the section of the website on parenting coordination.