Custody

Only Indiana and Texas has laws setting out a specific age at which a child can make a choice the court is requiredto abide by, and even than there are some limitations. With those states, it is age 14. In all other states, the general rule of thumb is that a 12 year old can express and opinion, however the judge is under not legal obligation to consider, or even hear it. In either case, a motion to the court must be filed for a determination to be made. However, the child should be informed that there are alternatives to choosing to live with just one parent. The child should also be advised they can express a choice that they remain in one home and each parent can live with them for a designated period of time, than switch. This is called Bird Nest Custody.

Although it continues to be very difficult in the American courts for fathers to be made the primary custodian of their children, more and more fathers are asking for and being entrusted with custody. Based on reviews of legal and successful attorneys, and our own research, we've has outlined a set of general guidelines that are helpful to the father in preparing his case.

The decision concerning whether to pursue custody in a heated divorce battle is one of the most difficult a man will have to make. At no other time in his life will he have to be more in touch with his own feelings and motivations amidst the social and emotional upheaval associated with a dying marriage. After sorting out his feelings, the father must face another set of issues, he must accept the fact that he starts out with 9 to 1 odds against him. He must also recognize that if he fails in his attempt at being awarded custody, he is likely to end up with a worse visitation, child support, and property settlement than he would have had if he had settled out of court and had given up the issue of custody. Finally, if he decides to pursue custody he may have to deal with a considerable increase in animosity between him and his wife at the expense of the children for whom he is trying to provide a better life.

These considerations have been brought out in the hope that fathers will appreciate the ramifications of the decision they must make. In the midst of the emotional scars, the power struggle, the loneliness, and the fear of the unknown, one lone consideration is so frequently overlooked: Given the present miserable circumstances what is the best possible outcome for the children? The guidelines listed in this document will be beneficial to the father who has thought out these issues.

# BASIC PROCEDURES TO BE DEMANDED

The single best procedure a single father can request is a trial by jury. (This of course applies to states that allow it.) To place such a serious decision as custody in the hands of a single individual (a district judge) who, no matter how altruistic, is not skilled in the social sciences, is an excessive risk regardless of the evidence to be presented. Custody determination is a human issue - an emotional issue - and it is much easier to convince a panel of 12 jurors that the father can meet the physical and emotional needs of the child(ren) than to convince a judge who hears daily about fathers who refuse to pay child support. Additionally, a jury is more likely to place greater emphasis on the love and devotion the father has already demonstrated for the children.

The father should also request that the children be represented through an attorney ad litem. Although the attorney ad litem is not given the power that the position warrants, if the position is taken seriously the attorney ad litem can be instrumental in emphasizing key testimony and providing insightful cross examination during the trial. If the attorney ad litem does not take his appointment seriously, there is little harm he can do beyond promulgating the damaging stereotype that already exists.

As a matter of course, a court reporter should be requested. This request has two affects: it provides a record from which an appeal can be made, and it may prevent the opposing attorney from exaggerating and twisting testimony in the manner that so frequently characterizes custody proceedings. Court reporters, when requested, only report sworn testimony; all other comments are not recorded. Comments made during the voir dire and summations can be highly inflammatory and should be preserved, as well, for these can be particularly salient times for questionable tactics. The presence of a court reporter doing summation makes it possible to appeal on the basis of statements made during the summation and also forces the judge to consider objections raised during the summation.

# CONCEPTS TO BE MADE APPARENT

Although specific questioning is the normal mode for bringing facts into the focus of the jury (or judge), most trial lawyers realized that considerable indirect communication between the jurors and the attorney is essential for a successful trial. There must be no doubt concerning certain fundamental concepts at the time of the custody hearing. These concepts can be forced into the jury's consciousness repeatedly throughout the hearing.

The jury (or judge) must realize that custody has not yet been decided even though the children have probably been living with the mother during the separation. This concept can be bought out during the voir dire (jury selection) procedure. It must be pointed out to the jury that the purpose of the hearing is not to determine whether sufficient evidence exists to deny the mother custody. The focus must be on the child(ren), and the jury must be able to distinguish between the mother's need for the child and the child's need for the mother. Jurors frequently do not say what they feel, however, and the voir dire procedure is unlikely to eliminate biased jurors. The concept must therefore be reinforced on a subtle level throughout the trial. The ways in which this can be accomplished are limited only by the creativity of the attorney and the sincerity of the father.

A second major concept that must be made apparent to the jury is that the child(ren)'s most intense need is for a psychological parent - not a biological parent. The psychological parent is the individual who has most adequately met the child(ren)'s emotional needs in the past. Although this may be related to the amount of time that the parent has spent with the child(ren), psychological research has demonstrated that the quality of time spent with the child(ren) is far more important than the quantity of time. Meeting a child(ren)'s physical needs (e.g., food, clothing, shelter) is important. The "stereotypical" father, however, is one who can not meet the emotional needs and relate on a feeling level to the children.

The effects of this stereotype can be overcome by constantly emphasizing the uniqueness of the father in question and his relationship to the child(ren). This concept is further discussed in the section: "Specific areas of questioning". In summary, therefore, the father must be seen as the primary psychological parent, while the mother's claim to custody by virtue of her motherhood is pointed out as the mother's need for the child(ren), rather than the child(ren)'s need for the mother.

The third concept to be brought out in the trial is concerned with the role of the single parent. Regardless of the jury's decision, the child(ren) will be living with one parent or the other - not with both parents. Neither parent can be two people at once, but it will be necessary for one parent to fill both roles as adequately as possible. Again relying on the stereotype, the mother is generally considered to be governed by emotions, rather than the rational thought. The father, on the other hand, is considered to be emotionally unexpressive and insensitive to the needs of the children. The contrast to be brought here is the ability of the father to deviate from his stereotype relative to the ability of the mother to deviate from hers. If the mother has not demonstrated her ability to relate to the child(ren) amidst financial difficulties and while working full time, while the father demonstrates his ability to relate to the child(ren) emotionally, a small victory will have been won for the father.

# EXPERT WITNESSES

The role of the expert witness in the custody determination has received increased research attention in recent years, but psychologists and psychiatrists are not called upon to offer their recommendations frequently enough. Expert witnesses can provide invaluable information concerning the unique characteristics of the child(ren) and sensitivities of the parents to these needs. Experts can also detect coercion on the part of one or both parents and the effects that this coercion will have on the child. These experts can offer testimony concerning pre-divorce communication patterns in the family, which parent can most easily make the transition to single parenthood, and which parent is most likely to facilitate a basis for continuing communication between the parents when given custody. These are issues which have received too little attention in the past but are of primary importance in a healthy, enduring post-divorce arrangement.

It is difficult to evaluate the role of the home visits by social workers in the custody hearing. Social workers are frequently exposed to child beating, absent fathers, mothers who don't really care, etc. A visit to the home of a mother who is fighting for custody is likely to have a negative impact on the father's case. In some instances home visits may be revealing, and expert testimony in these cases is essential.

# SPECIFIC AREAS OF QUESTIONING

Several lines of questioning that can have direct and significant impact on the decision are frequently overlooked in custody trials. The purpose of the questioning proposed here is once again to demonstrate that this father does not fit into the stereotype - that this father knows a great deal about the needs of his children, that he has thought seriously about how he will meet these needs, that he can relate emotionally to his children, and that he has planned positive steps to ensure a good post-divorce relationship between the children and their mother. This line of questioning should probably be prefaced in some way so that the jury will know its purpose: to demonstrate the father's knowledge and sensitivity.

The most direct way of demonstrating the father's knowledge is to give him the opportunity to discuss such topics as diets, medical needs, proper social environment, etc. The father can discuss the development of his children and the problems that he can anticipate in the future because of the ages of the children. He should also discuss problems his children have experienced as a result of the divorce and how he has handled these problems. Before coming to trial the father should have visited some day care facilities, investing time to evaluate the quality of interactions between the day care workers and the children. He should have specific plans for day care for his children.

He should express his willingness to adjust his work schedule, especially if he must travel in his work. The father should discuss the emotions of his children and the type of parent that each one of the children needs. Finally, the father should discuss the discipline that each child needs and how he plans on applying the discipline. Disciplining of the children should always be discussed in the context of the children's emotional needs, however, in summary, the father should spend as much time as the court will allow talking about the children in order to demonstrate that he knows his children and that he is capable of fulfilling their needs.

Life before the divorce is not the same as life after the divorce. Questioning, therefore, should be related to life with the children as a single parent. Both parents should be asked what they will tell the children about divorce and why the children's parents are divorced. Questioning should attempt to determine what positive steps each parent would take to ensure that the other (non-custodial) parent would have a continuing relationship with the children. The role of the non-custodial parent should also be discussed by each of the parties to the divorce.

The mother especially should be asked questions about her role as non-custodial parent. It should be made clear to her and to the jury that, since she presently considers herself a good mother by visiting the children frequently, by supporting the father in his role as custodial parent during visits with the children, by discussing with the father parenting issues that arise, and by demonstrating to the children that she continues to love them and be concerned about their happiness. She should be asked what positive steps she would take as non-custodial parent to promote the happiness of the children. She should also be asked to discuss such difficult issues as what she would tell the children (especially if they are quite young) about why she is not with them more of the time.

There are several points to these lines of the questioning. If the jury (or judge) is following the testimony carefully, they will be forced to visualize the father as the custodial parent and the mother as the visiting parent. They will be forced to visualized this in the best possible light for the father, as no derogatory remarks will have been made by him during the testimony. If questioning of the mother is handled delicately, it will be seen by the jury that the mother can fill the role of non-custodial parent without emotional anarchy that the jury members fear.

It is assumed that the behavior of the father during the separation will be consistent with his testimony. If he has acted maturely, has not provoked arguments with his wife or placed the children in the double bind of having to choose, and has supported the family adequately in spite of the separation, then open animosity that has arisen during the separation will have been because of the mother's insensitivity to the children and their emotional plight. Testimony of this nature will bear out the inadequacy of custody arrangements that place the children with the mother.

# RELATIONSHIP WITH THE ATTORNEY

It is obvious from the discussion that a good relationship between the father and the attorney is essential. The single most critical ingredient for a good relationship is free and open communication. If the father feels that the attorney is not reasonably confident in the case that is being presented, if he attempts to discourage the father from seeking custody simply because he is the father, or if the attorney appears to be uninterested in the father's viewpoints on the case, it is probably time to look for another attorney. In any event, the team approach is clearly the most advantageous during all phases of the divorce.

# VENTING AGGRESSION, SLINGING MUD, & DEROGATORY TESTIMONY

The intent of the custody hearing is to decide which of the parents can provide the more nurturing environment for the children. To accomplish this end, it will frequently be necessary to make realistic negative statements about the other person. There are distinct differences, however, among venting aggression, mud slinging, and derogatory testimony. The primary concern for both parents is for a continuing relationship with the children. Regardless of the jury's decision, the parents will probably be in contact with each other for some years to come. The memories of the custody proceedings, however, do not quickly fade. The most salient features of the trial become exaggerated and, in spite of the best intentions, will make a post-divorce relationship conducive to child rearing very difficult. The reason for this is obvious. One of the most disturbing aspects of derogatory testimony is that a basic trust has been violated. The parties to the divorce presumably loved each other enough at one time to get married and become parents. The secrets that they shared are now becoming a part of public record and are being used to deprive them of custody. The hurt, the frustration, and the bitterness that have led to the decision to divorce are suddenly accentuated, and all they can do is sit in the courtroom and listen to the former loved one distort, exaggerate, and fabricate.

In spite of the effects of derogatory testimony on the parents involved in the divorce, the sincere and sensitive father will present the testimony in such a way that the jury experiences the pain he feels in having to make the statements publicly. Only relevant testimony should be brought out, and the father should continuously point out the implications of the testimony for the physical and emotional well-being of the children. People are generally quite capable of detecting hostility and aggression in others. Jurors are no exception. In fact, they are likely to be very sensitive to negative motivation when the father takes the witness stand. Jurors are not likely to accept that a father can be extremely hostile to the mother of his children and sensitive to the emotional need of his children at the same time. The best advice that can be outlined here is to present derogatory statements firmly but with sensitivity. Do not demonstrate hostility. Do not hesitate to display genuine feeling for the children. Always make the testimony relevant to the custody determination, and present only the testimony that is needed to make the point.

See related question below

First, check out the logic of the child's "want." Does it make sense to you and your ex for this to happen? Could the other parent be more appropriate for day-to-day raising of a teenager? For example, common wisdom is that if the child is a teenage boy, it might be for the best for him to go to Dad. However, if the child wants to move because of disagreement with household rules, both parents may want to come to an agreement that, come what may, the move will be permanent. Allowing a child to use the non-custodial parent as an escape to problems regarding rules, schooling and so on, may result in "flip-flopping" households whenever an issue comes up. And, these issues will come up regardless of where the child lives, because that is the territory with teenagers. Of course, if there were issues with the non-custodial parent to begin with, then those will need to be added to the equation. In my personal life, I had to leave teenagers in Texas when I moved to Arizona. It was their choice, but they knew there was room in Arizona. The household I left them to was not the best; however there was just 4 years left until college and it was, in many ways, a short term decision. I missed them, but they are now in their twenties, and are doing well.