This article was published by the American Bar Association in Family Advocate, Vol. 26, No. 4 (Spring 2004). An edited, abridged version was published by the ABA in GP Solo Magazine, Best of ABA Sections, Volume 21, No. 6 (September 2004)
(with Barbara Ellen Handschu, co-author)
Brace your client for the enormous emotional, mental, and financial consequences that the client and the children will experience during a custody war, and brace yourself and your own family for the fact that you will live and breathe this case until the bitter end. Then listen carefully for the Court’s cues as to what it will find compelling at the trial.
Initial Evaluation of the Case
When a potential new custody client walks into your office, you might be well served to ask the client for a photograph of the children at issue: “Who we are fighting about?” Thus simple test, which is really what it is, may give you a good sense of the client’s feelings and attitudes toward the
children. If the client does not have a photograph of the children readily available in his or her wallet or bag - even an old one, you may well wonder whether the children are really the client’s pride and joy, and whether they are really the reason the client wants to litigate against the other parent -- unless the client has a darn good reason for not having that photograph handy.
Here’s another simple test of the client’s attidues and motivations: you might ask at the initial consult where the children are during your meeting, especially if they are young. Are the children in school? If so, where will they go or who will look after them after school ends, or does the client have
to leave by a particular time to get them? If the children are older, what are they doing with their time after school? Observe the client’s mannerisms and statements carefully if he/she interrupts your meeting to take or make a telephone call to or about the children.
Sometimes the client is truly anxious to tell his/her story first - but make sure to abbreviate the client and limit him/her to the real issues whenever necessary. Otherwise, or afterward, it is the attorney who must make the necessary and/or additional inquiries. Once the outline of the issues is reasonably clear, it is incumbent on you to explain the huge toll that the client and the children will face over the next few months and beyond. A custody war doesn’t end in court. The parents will be dealing with each other, and with the children, for the rest of their lives. The client absolutely must understand and
respect that fact.
You must evaluate - together - the positive themes of the case as well as the negative trouble spots (see below). If the client is simply consumed with rage, offers nothing but negative comments and accusations about the other parent without objective and substantiated information about his or her own strengths and the other parent’s problems, the attorney is well advised to perform a gentle but firm investigation. Before undertaking the representation, find out whether the client has been involved in multiple custody litigations against the other parent, whether numerous unfounded child protective service or police reports exist, whether any serious psychiatric or substance abuse problems have
been identified, or whether there is evidence of the client’s proclivity to record conversations between the other parent and the children).
Self-righteous indignation from a potential new client about the other parent should set off alarm bells unless you can obtain substantiating police reports, medical or school records, or other independent supporting documentation. A client who thinks that he or she is the perfect parent and that the other parent is odious will have to prove it to you first. You must believe in your client’s case before you can persuade the court. If you do not, you should re-evaluate your willingness to undertake the representation of this client.
The attorney’s job is to represent the client, but not as an agenda issue. The client should have a genuine and, hopefully, reasonably substantiated belief that the children would be much better off with him or her than with the other parent. Custody battles should not be commenced lightly or for leverage in a financial battle. To do so would be a tremendous disservice to the client, to the children (even though they are not the firm's clients), and run afoul of the high ethical standards of most
law firms and the state.
Sometimes the best analogy to use with clients is that, for the battle to be worth its terrible price, the scales of justice must tip dramatically in the client’s favor in moving the children to his/her primary or sole custody. Promising “victory” is both foolhardy and dishonest. No one will “win” a custody battle, but the children’s lives may be better in the end, and that should be the reward your client seeks. Again, if you suspect any other motivation from the client, do not take the case.
Discourage clients from bringing their children to the office for appointments. If there is no alternative, meet with the client in your office and send the children to the reception area where they will be supervised by a staff member. No substantive contact between your firm and the children is appropriate.
With this in mind, and assuming that the representation is undertaken, your job will be to jazz up the positive so that the trier of fact is interested and alert throughout the trial. Negative aspects about your client are best acknowledged while your side is on the offense, at the outset of the case - openly and honestly, rather than on the defense, by concealing them until the other parent brings them to light. Your client must be aboard on this effort and perhaps acknowledge and attempt to correct any personal or parenting weaknesses as unobtrusively as possible before the first shots of the explosive battle are fired. Client resistance to early corrective action or subsequent concealment of negative traits will be uncovered and exploited by the other side.
Your client’s “trashing” of the other parent to third parties, to the children, to the court, to any court-appointed experts and attorneys who may also get involved in the case, and to other family members, generally serves no purpose except to anger the trier of fact, give credence to any defense that all your client wants to do is alienate the children from the other parent, and that perhaps the children would be better off with the parent who is not filled with such bitterness.
Perhaps the hardest job of a custody lawyer is to rein in the client so that negative aspects of the other parent are indeed raised, but somberly and regretfully, rather than shrilly and harshly. Your client may need to modify his or her behavior or demeanor significantly in order to convince the trier of
fact to rule in his/her favor. The client can always castigate the other parent to you - it is expensive but privileged - but never to the court or anyone else. It is the attorney’s job to present the case calmly but firmly, and with substantiation that grabs the court’s attention. It is not the client’s job to engage in histrionics. If he or she does so, think seriously about terminating the representation – your
client is out of control.
Developing Themes of the Case
The themes of the case play their most important role as you develop your theory of the case. Itemize the positive and negative parenting/personal characteristics of each client. For example, the positive theme may be that the client has always been the primary nurturing parent who was always available for the child, and your client’s keen insight into the children’s problems and issues. Likewise, your
client’s expertise in a particular field, such as medicine, education or therapy, may give your client a potential boost in the decision-making elements of the looming war. An accompanying negative theme about the other parent may be the other parent’s inability to make decisions about the children, or that the other parent has been perpetually absent, or perhaps emotionally abusive, or even poses a physical or emotional hazard to the child. It is often useful to graph the pros and cons of each parent; the cons of the other parent should far outweigh those of your client, and vice versa regarding their
Themes can be refined and adjusted, depending on your effective reading of what is truly grabbing the interest of the trier of fact. Listen to the court. The judge will give you clues about what he or she finds interesting. The court will probably tell you, point-blank, what it wants to hear and see, and what it does not want to hear and see. A good lawyer is attentive to such clues and follows the court’s cues
- many of which should be obvious, even to the uninitiated.
Switching theories of parenthood in the midst of the case will impede everyone’s credibility, including yours. Use caution to “refine” the theme, rather than changing it altogether. For example, the other parent may suddenly become more amenable to changes in your client’s access to the children. You might let the court know that the new-found flexibility is extremely welcome, but that it has been conveniently timed and that history speaks for itself: the other parent cannot be trusted to be
flexible once the case is over. You may then need to focus greater attention on which parent has demonstrated better decision-making skills. Notice that you have not changed your overall theme; you have refined its emphasis without backtracking or contradicting your position.
Along the same vein, you might emphasize how the other parent’s current decision-making during the litigation has adversely impacted the children, from a lack of uncertainty as to where they will be sleeping, to psychological and medical problems resulting from the parental tug-of-war to which your client is far more sensitive. All of this demonstrates how the needs of the children are best met by being with your client.
The Custody Litigation Process
As noted above, clients should understand that there are no real "winners" in any custody case: The
children will almost invariably suffer the most, and whatever the outcome, parents likely will always have to deal with each other in connection with the children, barring death or other catastrophe. The process of achieving a custody award can be embarrassing, grueling, humiliating and extremely costly
for everyone involved. The custody battle will almost invariably require the children to open their souls to a host of strangers who will be important in deciding the futures of all the parties in the case. Children may be subject to inordinate feelings of guilt, sadness, their own or the parent’s blatant
manipulation. and intense lobbying by one or both parents for their affections and loyalties.
A panoply of strangers will be involved in deciding the fates of the parents and the children. These strangers will or may include: (1) the judge, who will be randomly selected; (2) a lawyer for the child, who may be selected by the judge from a panel of lawyers; (3) forensic mental health evaluators who may also be selected by the judge, where deemed necessary and appropriate by the judge and/or the lawyer for the child (sometimes giving the appearance of an abrogation of judicial responsibility to
a mental health professional), who may be randomly selected, selected by the judge or lawyer for the child (with or without counsel's input), or agreed upon between counsel; (4) the local branch of child protective services, if there are allegations of abuse or neglect; (5) the custody branch of the local probation department, which may be requested to conduct "home studies" of the parents' respective homes; and (6) the records and testimony of treating health care professionals, teachers, child care workers, and, of course, the parties themselves.
Any of these individuals may have intellectual strengths or weaknesses, prejudices, inclinations, attitudes, and experiences that provoke strong feelings about one or more issues in the case. Because some these people will be involved by random selection, many unknowable risks are inherent in the case. These risks must be overcome by the sheer weight of evidence in support of your position, if at all possible. Some attorneys are firm believers in retaining consulting experts to help a client present well. Extreme caution should be exercised in hiring such experts as the client may appear overly rehearsed.
Depending on the jurisdiction, pretrial discovery may or may not be allowed in custody cases. Regardless, significant documents and testimony may be subpoenaed for trial. Because drug and alcohol treatment records are protected from disclosure by federal law, this type of information may need to be elicited from other sources (such as the parties or witnesses), which may not be subject to such protection, and then only in a appropriate, ethical, and credible fashion.
A variety of witnesses might be of assistance in your client's custody trial. However, a list of names, addresses, and telephone numbers is not going to be very helpful. Ask your client for a detailed witness list, describing who the person is, what contact he or she has had with the child and the client, what he or she might contribute to the case, the background of the person (anything that could harm that person’s credibility and adversely affect the perception of your client’s decision-making skills), what the substance of their testimony might be, any documents that might corroborate or enhance their testimony, and any detrimental issues that might be brought up at trial by the other side. Ask
your client the same series of questions regarding witnesses likely to be called by the other parent.
Your client must understand that not every person suggested will be of assistance at trial or will be called as a witness. Witnesses are the people who tell the story in addition to your client and the other parent. The witnesses must fit into the general theory and theme of the case. If a witness is not able to add anything to the theme, the witness should not be used. For instance, your client may feel that her best friend would be a great witness to talk about your client being a nice person. If that best friend has spent little time with the client and child, or if that best friend cannot add anything except platitudes, he or she should not be called as a witness. Such testimony will bore or anger the court, to no effect, except possibly to prejudge your client’s case.
Trial judges often ask for an offer of proof after they have heard from several similar witnesses. Counsel should be prepared to indicate the sum and substance of testimony and how that testimony fits into the general scheme. Counsel must be concerned that proposed testimony not be cumulative. If there is a clear roadmap with a theory and a theme, each witness should add different nuances and information to each issue in the theme. Again, listen to clues from the court and follow them.
Teachers and school psychologists are often among the best and most knowledgeable neutral witnesses regarding school-age children. However, many are reluctant to testify, and many school principals, superintendents, and the school district attorneys may prohibit you from speaking to them before trial. It probably is best to ask first the principal, the superintendent, or the school district’s attorneys if you can schedule a conference with the teacher or school staff member. If they prohibit it, your client may have to do some interviewing him/herself, but what the school staffer tells your client may very well not coincide with what he or she says in Court.
Sometimes if the teacher or staff member feels strongly, he or she may risk the consequences of losing his/her position at the school and the wrath of the powers that be, by contacting you directly anyway, but do not count on it. If it occurs and you are lucky to speak directly to a teacher or other member of the school staff in advance of trial, ask that person how much knowledge he or she has about the child's well being, what if any issues they have onserved, events that have upset or empowered the child or made the child happy or sad as a result of a parent’s actions, and your client's and the other parent’s participation in the child's educational life. If there are special educational issues, such as learning disabilities or enrichment needs, ask the teacher or staffer about them, the parents’ attitudes and efforts to address those issues.
In any event, notify the school or the teacher or staffer to be prepared to testify and find out the best scheduling for them. The teacher's or staffer’s own educational and employment experience is important and should be a subject of inquiry. Whenever possible in terms of your trial schedule, attempt to coordinate with opposing counsel and the child's lawyer to have the teacher or staffer testify, even out of order, to accommodate the teacher’s or school staffer’s schedule. In most jurisdictions, a subpoena for a teacher or school staffer will be necessary.
If the child is in a more advanced grade, every teacher or school staff member need not be called as a witness. Current or recent knowledgeable teachers and staff members probably provide the most informative testimony. Similarly, the headmaster or the principal of a school, unless that person has intimate knowledge of the child, is probably not a good witness. On the other hand, if continued education at a particular type of school is at issue, those who run the school are relevant witnesses as are instructors.
The teacher or staffer called as a witness may be asked to comment on the child's behavior if the child has been splitting time between parents. Does the child have homework done timely during
different weeks or parts of the week? Does the child seem tired, anxious, or overly aggressive during certain times of the week? Has the teacher or staff member observed the actual transfers to each parent and can the teacher or staff member describe the child's behavior at that time?
Another class of witnesses is the people who work with the child on a routine basis. For instance, with very young children who may not yet be of school age or who are attending school for only part of the day, a caregiver can be an important source of information. For instance, when both parents work, does the nanny know who tends to the child when he or she is sick? Does only one parent take off from work or do the parents leave the child with the nanny? Which parent arranges for play dates, and who takes the child to play dates? Who makes birthday party plans, and who executes those plans?
An in-home caregiver, especially a live-in caregiver, will be able to answer those inquiries. Such a caregiver also may be able to comment on interactions of the parents. The caregiver may have observed your client being very cordial with the other parent and encouraging the other parent to spend more time with the child. On the other hand, the caregiver may have observed one parent pulling the child away from the other parent on occasion or have overheard loud arguments started and pursued by the other parent in the presence of the child. If such arguments occurred, the caregiver could describe the child's reaction.
If parents are living separately, the caregiver may be present when the other parent picks up or delivers the child to your client. The caregiver should be able to describe the child's behavior before going to the other parent and upon return. The caregiver also can describe the child's general activities during time spent with your client and how nurturing your client is. For instance, does your client prepare breakfast for the child, and what does the child generally eat in the morning?
Another group of potentially valuable witnesses are those who work with the child in various organized
activities. These include coaches, dance instructors, gym teachers, music and art instructors, scout leaders, and those who run clubs in which the child participates. With each of these, inquire as to your client's level of activity. (Who brings the child to the activity? Does the person remain during games and the like? Does the child relate well to that person during the activity? Does the parent do anything extra to involve themselves in team activities?) This class of witnesses also can provide information about how the child relates to other children, which might be an important factor if your client has been the primary nurturer and the other parent is attacking the caregiving. If the child has a number of scheduled activities, call a witness from each activity. Look to the most involved adults in each activity.
Neighbors and friends may be of limited value as witnesses. A neighbor with children who have been involved in ongoing activities with the child might be a very limited witness for trial. Friends, even those who have attended birthday parties and other child-related events, also are of limited usefulness.
Doctors, dentists, and other professionals who have rendered care to the child may be relevant. Their
testimony may require a court directive if they are the child's health care provider, such as a therapist. Counsel also may want to talk with the child's lawyer to see if a waiver of privilege can be arranged. Often, regardless of whether the privilege is waived (and it frequently is not) the health caregivers may be extremely uncooperative, even under subpoena. They may be willing to produce office records and an office records keeper, but not testify personally. Sometimes a court-ordered subpoena is necessary to ensure their appearance in court, but in that event, they may be hostile. Seriously weigh the risk; perhaps the records will suffice.
Classes of other witnesses can testify about the child's special needs if that is a relevant inquiry at trial. That type of witness also can address your client's involvement with the professional. Is it
your client who chose the professional? Is your client there every time the child visits the professional? Does your client ask relevant questions for follow-up and treatment? Does your
client follow directives?
If your client has utilized psychological or psychiatric services, ask his or her therapist to testify as to the psychological make-up of your client. Even if some of this testimony includes medication or prior history, the very fact that your client has sought treatment is a positive factor you can highlight at trial. A caring psychologist or psychiatrist should testify that a person who seeks treatment and continues in treatment is a person who wishes to make life better and thereby set a good example for children. If the psychiatrist is prescribing medication, he or she should be prepared to describe what type of medication and its implications. The downside of what that professional may say is no secret. If you speak with the psychiatrist and decide not to call him or her, the other side may be prepared to rehabilitate any negative testimony.
Your client may wish to call various family members. Most trial courts will realize, or be instructed, that a family member has potential bias. Your client's family might be relevant for limited purposes. If, for example, it is alleged that the other parent is interfering with the relationship between family members and the children, then perhaps one member could testify to incidents involving the other parent. This testimony should be limited.
This discussion of potential witnesses is not by any means intended to be comprehensive. Every case has its own issues. For instance, if the custody trial involves relocation with a new spouse, the new spouse becomes a very relevant witness. In other types of relocation cases involving an employment opportunity, an employment counselor or a headhunter may be asked to testify in detail about the proposed new locale or lack of employment in the current geographic area and the need to move. Sometimes those types of witnesses can be located through university or professional school placement departments.
In any event, remember that your communications with any and all of these witnesses is absolutely not privileged, and may be the subject of cross-examination and testimony. Err on the side of extreme caution when interviewing these witnesses and do not reveal your client’s confidences, your theories of the case, problems with the other parent, strategic decisions that you are considering, or other commentary that may be the subject of examination and testimony and thus adversely impact your client.
Children are generally not asked to testify in open court. Instead, they are asked to appear before the judge for a private "in camera" interview at which only the lawyer for the child and possibly a court reporter will be present.
Judges are likely to make decisions based on "gut" reactions to the credibility of witnesses, especially the parties themselves. However, the court also can be swayed by reports of forensic evaluators, the recommendations of a lawyer for the children, and the arguments and comportment of the attorneys themselves. Because court results are so unpredictable, the client must be sure that the decision to proceed with a litigated custody battle is a responsible one, and that he or she has a support network of family, friends, and mental health professionals, if at all possible, to help manage the ensuing onslaught.
Ultimately, it is your client alone, not you, who will be interviewed by the forensic evaluator. It will be your client, and not you, who will testify in court. His or her own comments, testimony and demeanor will be what the trier of fact will be listening to and watching. Your job is to prepare your client and the testimonial and documentary evidence as well as you possibly can for the ultimate test at trial.
Custody battles are risky and potentially devastating affairs. They should only be undertaken when the stakes are high and the goal is well worth the costs.
Copyright Terri L. Weiss. All rights reserved.