A Custody Evaluation is an investigation by a trained medical professional, usually a psychologist, in which the professional ultimately renders an opinion to the court as to what the best child custody arrangement would be for the child(ren).

The parties to a custody case can agree that a custody evaluation will be performed, and they can agree on who will do it and how it will be paid for.  That rarely happens, though, as people who are in a custody dispute rarely get along and agree about anything.

The more common scenario is that one party or the other will file a Motion and ask the judge to order a custody evaluation.  Most judges will order that a custody evaluation will be performed and will spell out the details of who will do the evaluation and who will pay for it in the Order.

There are several important questions to consider before pursuing a custody evaluation.

First, do you understand what it is?  A custody evaluation means different things to different professionals.  It’s not a “one size fits all” thing.  The basic idea is that a professional, usually a psychologist, will interview the parents, the child(ren) and others, will look at various documents such as school records, medical records, etc. and will synthesize all of the interviews and document information into a report that is intended to be used to by a judge to help decide what is best for the kids.  As with any professional service, you need to find out some specifics before hiring the custody evaluator, such as who and how many will be interviewed, how much time the evaluator will spend on the case and how much the evaluation will cost.

Second, do you need one?  A custody evaluation, in my opinion, is the best way to “level the playing field” in a child custody case.   The fact is that mothers are far more likely to be granted primary physical custody than fathers.  It’s not really even close.  Everyone knows it, and I’ll save further comment on that issue or another article.  The reason the bias against fathers exists is not really as important for purposes of this article as the fact that it does exist.  Because statistically dads are far more likely to lose in court, dads are typically the ones who stand to benefit the most from a custody evaluation, as it offers a supposedly neutral professional opinion to the judge that is often very helpful to give the judge the “big picture” in a custody case.  The way custody litigation typically works is that mom testifies in her own favor, and her witnesses, most of whom are biased family and friends, tell the same story.  Then dad testifies in his favor, and his witnesses, most of whom are biased family and friends, tell the same story.   In the end, judges are usually left with two totally different stories from witnesses that are not very reliable because of their bias, and usually they just award custody to mom.  That’s just the way it is.   The legal reason, most of the time, is the “status quo.”  That means that the judge looks very carefully at where the kids have been living in the months leading up the trial, and usually in the Findings of Fact in a custody order, you will read something about the “status quo.”  I personally think that status quo is the number one factor in a custody case.  The fairness of that is another matter, and again, is the subject for another article.  The point is that, generally, I think custody evaluations are potentially far more helpful for fathers than for mothers because a custody evaluation is perhaps the only way to overcome an unfavorable status quo, and you should think about that and decide for yourself if hiring someone to evaluate your custody situation is a good idea.   It probably is a good idea unless you are OK with the “every other weekend, half the holidays and some of the summer” typical custody schedule that most dads get.

Third, how much do you have to spend?  Custody evaluations are like new cars, in the sense that you can order whatever features you want if you have the money.   If you choose, you can probably find an evaluator to do a “basic” evaluation where he or she interviews you and the child(ren)’s other parent, the child(ren) and maybe one or two other sources and maybe review a few documents for a ballpark fee of about $2000-$4000.  If you want the evaluator to interview you, the other parent and the children multiple times, and if you want to use  multiple collateral sources, such as teachers, doctors, ministers, and friends dating back many years, and if you want the evaluator to sort through extensive medical and school records, you can count on spending more than that.  A more extensive custody evaluation can easily approach the $7,000 to $10,000 range depending on the skill and experience of the evaluator and how much information you want the evaluator to consider.

Fourth, who is going to be your evaluator?  This question is probably the most important question in your entire case if you decide to use a custody evaluator.   It’s also not as simple as it seems.  Remember that if a judge orders the custody evaluation, you and the other parent or going to have to agree on the evaluator or the judge will pick one.   This is no easy negotiation for the attorneys, as both attorneys are fully aware that much is at stake in the selection of the evaluator.   In making the decision, I suggest that the best way to handle the selection process is to seek the advice of those who have used certain evaluators in your geographic area.   While there are likely many competent and unbiased evaluators available, there will undoubtedly be some with a bias of some sort.  Some will be “pro-mom” perhaps, or it may be that some are “pro-dad.”  You may be able to find that out from talking to people who have had experience with certain evaluators, or you may have to interview the evaluators yourself.  If you do, there are some basic questions you need to ask.   How many of these evaluations have you performed?  What is your opinion of the “home-base,” weekend visitation model?   Out of the evaluations you have performed, how many times have you recommended that mom should have primary custody?  How many times have you recommended that dad have primary custody?  How many times have you recommended a true joint custody arrangement where each parent has the child(ren) 50% of the time?  What is your background in dealing with children who are the ages of my kids?  If you feel that your spouse is trying to turn your kids against you, you might also want to ask the potential evaluator what his or her professional opinion is about Parental Alienation Syndrome and whether the evaluator has ever found that PAS exists in his/her reports.  This is only a list of some basic questions, but the answers will likely tell you whether you feel comfortable with the evaluator.  Remember, the custody evaluator’s testimony is likely to be the most important testimony of the trial, so it’s an important decision.

A good, unbiased, professional custody evaluation is a very valuable tool in custody litigation.  A custody evaluation is an investment, and the decisions about whether to utilize a custody evaluator and who you choose to conduct the evaluation will be critical in the outcome of your child custody case.  Making good choices can drastically increase your chances of obtaining what you want, and making poor choices can doom your case.

So you’ve “settled” your child custody issue and you have a schedule. You may have a schedule in a Separation Agreement, or you may have a Court Order that dictates when and where you get to see your kid(s).

This post will focus on remedies for the situation where your ex-spouse is playing games and does things that keep you from seeing your kids when the Agreement or Order says that you can. If you have a Separation Agreement which has been “converted” into a Court Order by Incorporation, then the available remedy is Contempt of Court, the same as it is for those with a “regular” Court Order. For those folks with an Incorporated Separation Agreement, the rest of this post will apply to you. For those of you with a Separation Agreement that was not incorporated into the Divorce Judgment, your remedy is Specific Performance (via a Breach of Contract lawsuit) as opposed to Contempt.  After the Specific Performance is ordered by the judge, if there are repeated violations, that Order is then enforceable by Contempt just as with any Court Order.

Contempt is a remedy where you ask a judge to enforce a Court Order.  You’re basically telling the judge that your ex won’t follow the Order, and you’re asking he or she to do something to your ex as punishment.  The punishment can include jail, but in the child custody arena, it is rare that a judge will incarcerate someone for violating a custody order, at least on the first offense.  Usually if a person is found to be in willful contempt, the judge will award some “make-up” time with the kid(s), order that the custody provisions be complied with in the future and threaten the offending party that if they violate the Order again, he or she may go to jail.

It is important to note that this post is primarily useful for those folks who are in high-conflict situations where the child(ren) are being used to settle a score with the non-custodial parent.  For the majority of reasonable folks out there, they can work out their minor schedule problems and quirks without need for court.  However, there are situations where the parent who is given primary custody abuses that power and control and uses the child(ren) as a weapon to settle the score with the non-custodial parent.  In those instances, court may be the only option.  I am of the belief that if a custodial parent will not follow the judge’s orders and repeatedly takes time away from the non-custodial parent, taking them to court until they get the message is the best, and most efficient, way to solve the problem.  It makes no sense to me to continually ask the other person to stop violating the Order and argue about it over and over.  Instead, I think letting them explain to a judge why they feel the judge’s Order doesn’t have to be followed is the quickest way to solve the problem.

If you’re like most folks, the custody schedule language in your document is terrible. The reason is that a lot of attorneys simply do not know what they’re doing when drafting custody provisions. The key to good, enforceable Court Orders is specificity and detail. There are too many Orders out there where the custody provisions are too general and vague to be enforceable.  An example is this phrase:  “Parent X shall have visitation at the times and places as agreed upon by the parties.”  If you are having problems with your ex about a custody schedule and you agreed to this language in your schedule, it’s your fault.  Or your attorney’s fault.  It’s somebody’s fault, because that language is useless – it is unenforceable.  If you have this language, or similar language requiring “agreement” with your ex on the visitation, stop reading and call an attorney to file a Motion to Modify Custody so that you can get a Court Order with language that is specific enough to be enforced.

Why does specificity matter?  Because in a Motion for Contempt (also known as a Motion to Show Cause), you must indicate what the Court Order said and specifically what the other party did to violate it.  In the above example, the reason you are wasting your time filing a Contempt Motion is that the Order doesn’t contain any specific dates or times that you will have the kids, so it is impossible to prove a violation.  Had the Order said “X will have the children from Friday at 6:00 p.m. until the following Sunday at 6:00 p.m. on an every other weekend basis beginning on June 24, 2012,” then you could point to a specific weekend that was taken from you and prove that a) it was your weekend and b) the other parent didn’t let you have the kids.

Another reason specificity matters is that it takes “interpretation” out of the equation.  For example, imagine this clause: “Parent X shall have the children during the first and third weekends of each month.”

This seems pretty straightforward, right?  It’s easy to tell when the first weekend of the month is, right?  Not so fast.  What if Friday occurs on April 30 and Saturday occurs on May 1?  Is that the “first weekend” of the month of July?  Dad may think it is, but Mom may have a different opinion.  You can easily see how this situation could end up in court.  Dad schedules a trip with the kids during what he thinks is his weekend, but Mom says “that’s not your weekend.”  She keeps the kids, they don’t go on the trip, Dad files a Contempt Motion and they go to court.  It is highly unlikely that a judge is going to hold Mom in contempt under this scenario because the clause that Dad is trying to enforce is ambiguous.  The clause does not define “weekend” well enough to be able to establish which weekend was the “first” one in May.  Had the Order simply been specific and said “Parent X shall have the children during the first and third weekends of each month.  For purposes of this clause, the “first weekend” of the month is defined as the first weekend in which Friday, Saturday and Sunday all fall within the same calendar month.”  As an attorney,  I personally don’t like rotating weekend schedules that try to define the “first” and “third” weekends or “first, third and fifth” weekends because those kind of schedules are just breeding grounds for disputes, but you get the idea.  A lot of anxiety and anger can be avoided with proper drafting and specificity.  Of course it is almost impossible to remove all ambiguity from a custody order, especially when dealing with parents who insist on trying to find every little possible ambiguity to exploit, but with careful drafting and attaching calendars to Orders, many of the problems can be prevented.

If you are a parent who is prevented from seeing your kids because your ex is playing games with the Order language, or just violating it because he or she is angry, one thing you can do is file a Motion for Contempt.  For some situations, the only way to stop the offending party from violating the Order is to take them to court and let the judge make it clear to him or her that Court Orders must be followed and there are consequences for not doing so.

 

From WCNC.com,  Charlotte, NC.  What do you think of this?

Three Oakland County children who refused to go to lunch with their father, as part of a bitter divorce and custody battle between their parents, are spending their summer in the county’s juvenile detention center, according to court records.

“We’ll review it when school starts, and you may be going to school there,” Oakland County Family Court Judge Lisa Gorcyca told the children during a June 24 hearing, referring to the center in Waterford Township called Children’s Village, where authorities house as many as 200 juvenile offenders.

Gorcyca, who blamed their mother for poisoning the children’s attitude toward their father, ordered the children be sent to the center for defying her orders — while in court — that they go to lunch with their father.

The children — ranging in age from 9 to 14 — were deemed in contempt of court last month by Gorcyca for disobeying her orders to “have a healthy relationship with your father.”

The oldest boy told the judge during the hearing that he apologized for “whatever I did to you.”

“But I do not apologize for — for not talking to him because I have a reason for that and that’s because he’s violent and he — I saw him hit my mom and I’m not gonna talk to him,” the boy said, later telling the judge, “I didn’t do anything wrong.”

“No, you did,” Gorcyca replied. “You — I ordered you to talk to your father. You chose not to talk to your father. You defied a direct court order. It’s direct contempt, so I am finding you guilty of civil contempt.”

After sending the older boy to Children’s Village, Gorcyca gave the two younger children — a 10-year-old boy and a 9-year-old girl, a chance to go to lunch with their father in the courtroom cafeteria, but they refused.

“I’ll go with my brother then,” the 10-year-old told the judge.

Speaking about the children to their mother, Dr. Maya Eibschitz-Tsimhoni, Gorcyca was vehement.

“Your children — you need to do a research program on Charlie Manson and the cult that he has. Your behavior in the hall with me months ago, your behavior in this courtroom … is unlike anything I’ve ever seen in 46,000 cases,” said Gorcyca, who has a young son and is known for her normally pleasant demeanor in court.

The judge told the mother she could not visit her children this summer, according to a court transcript of the hearing.

Referring to the contempt orders and sending the trio of kids to summer behind institutional walls, Gorcyca told the older sibling: “I wanted to do this because of your horrific behavior a long time ago and your dad begged me not to. … One day you are going to realize what’s going on in this case and you’re going to apologize to your dad.”

The two boys and their sister each had a court-appointed lawyer at the hearing, according to records. But the attorneys said the children refused to cooperate and, in some cases, wouldn’t talk to their lawyers. The attorneys for the children did not object to Gorcyca’s order.

“Your dad is a good man. And wipe that smirk off your face,” Gorcyca said to the 10-year-old, as both he and his sister defied the judge’s order to have lunch with their dad.

The children are caught up in a highly contentious divorce case that began more than five years ago between their father, Omer Tsimhoni, an internationally prominent traffic safety researcher and GM engineer who works frequently from a GM research lab in Israel, and their mother, a pediatric eye doctor and widely known glaucoma researcher who is an assistant professor of ophthalmology at the University of Michigan and has an office in Canton.

The case has resulted in dozens of court appearances throughout the years and has led to the children being ordered to spend time with their father. After repeatedly refusing to cooperate with Gorcyca, the mother at the June 24 hearing finally agreed that the children should spend time with their father and agreed to the lunch date. But Gorcyca said to her “it’s too late.”

Omer Tsimhoni “desires a resolution to the current circumstances that would allow his children to live in a healthy home and not the Children’s Village,” said a new release issued Wednesday from his lawyer, Keri Middleditch in Birmingham.

Middleditch blamed the mother for “alienating” the children from their father and for creating the situation in which the judge ordered them into juvenile care.

“The court took severe action to attempt to remedy a heart-wrenching situation, solely created by Dr. Eibschitz-Tsimhoni,” Middleditch said, calling Omer Tsimhoni a “loving, caring father who desires a healthy relationship with his children.”

The lawyer for the children’s mother, Lisa Stern, declined Wednesday to speak about the case.

Contact Bill Laitner: blaitner@freepress.com or 313-223-4485.

 

This is an article from the Separated Parenting Access and Resource Center (S.P.A.R.C.) which explores some common arguments against “joint custody.” Basically, these are a few of the arguments that you may face in court if your estranged spouse will not agree to joint custody.

In North Carolina, there are two kinds of custody – legal and physical. “Legal” custody generally means decision-making – who will make the major decision about health, education and welfare? In my experience, most courts grant joint legal custody fairly liberally. In fact, if a judge in North Carolina chooses to deny a parent joint legal custody, there must be specific findings of fact in the Order that legally supports the denial of that right. That means that most judges grant joint legal custody. This makes sense because the fact is that there are very few legitimate reasons why both parents shouldn’t be involved in the decisions about the health, education and welfare of their children. An example of where joint legal custody matters would be in the area of medical treatment – ADHD, for example. If you don’t have joint legal custody, the bottom line is that you have no say in whether your child is medicated or not, you have no mechanism for forcing the other parent to notify you about which doctors or therapists are treating your child(ren) or about the time and location of the medical appointments. The article below deals primarily with physical custody arguments and not legal custody.

The other form of custody is “physical” custody. This is generally defined as the time that the child(ren) are going to be living with each parent. Most people think of joint physical custody as the “50/50” arrangement, where each parent has the child(ren) half of the time. The “50/50” arrangement is only one type of joint physical custody arrangement, though, and there are other variations which could just as easily be considered as “joint physical custody.” In fact, the child support statutes in North Carolina define joint physical custody for purposes of the child support worksheets as an arrangement where one parent has the (child)ren for more than 123 overnights per year.

Here is the S.P.A.R.C. article:

“If you intend to seek joint custody and the other parent isn’t agreeable to such a proposition, be aware that you will have to overcome numerous arguments designed to make joint custody seem like a bad idea.

More judges are comfortable with the idea joint custody these days, however, most of them are still very hesitant to order joint custody if one parent objects strenuously.

What follows are some of the “classic” arguments designed to prevent joint custody from being considered by the judge. Each one of these “classic” arguments has a counter argument that can be used to nullify it. Study these arguments carefully so you will be prepared to refute them as needed. Also understand that there are endless variations of the basic arguments, although most of the variations will fall under one or more of these basic versions.

If you find you’ve come across (or up against) a new argument, please contact us with the details so we can add it to this list.

The “Children Need Stability” Argument
This argument revolves around the false notion that children need unvarying sameness (stability) above all else, to the exclusion of the other parent’s involvement if necessary. The classic refrain is that the child “won’t be able to manage” (cope) with two different caretakers, two different homes, etc. This argument makes it seem as though having both parents involved will somehow “upset” to the child or that the child will become “confused” when going back and forth between the parents. In the “Stability” argument, emphasis is placed on geographic location, rather than parenting skills or involvement. There are other variations on this theme, but they all center on the child being unable to deal with two homes.

Yes, children need stability, but even more important is the need for consistency and predictability, or an awareness of what is to come. Children cope quite well with change when they know what to expect; not knowing what’s coming next is the cause of most of the stress that children experience. Children don’t get confused when both parents take care of them in intact families, confusion for children occurs when one parent suddenly leaves or is forced out of the child’s home and life. Giving both parents parenting time with the child contributes to continuity in the child’s life, not confusion.

The “Parents Won’t Cooperate” Argument
In this argument the unspoken assumption is that because one or both of the parents won’t cooperate with the other or one parent won’t agree to joint custody, any form of joint custody is impossible. This presumption allows either spouse to decide to “not cooperate” and thereby ensure that no form of shared parenting is ordered by the court. This tactic is often used by mothers, since they are overwhelmingly more likely to gain custody.

Refute this argument by noting that divorce rarely occurs because of non-cooperation related to parenting issues; more often it is due to infidelity, drug and/or alcohol abuse, emotional or mental health issues, financial pressures, and a host of other reasons- but rarely over issues related to non-cooperation in parenting skills or styles. Even though the parents are unable to stay married to each other they may still be able to collaborate on tasks needed to raise their children.

By ordering both parents to work together the court makes it clear that both parents are important. Another factor is that over time, the animosity level between divorced parents often drops. Emotional wounds heal, and the task of raising children can serve as a focal point of cooperation. Conversely, stripping a parent of the ability to help to raise their own children creates tremendous feelings of animosity, bitterness, and hostility in the “discarded” parent- making the chance of real cooperation much less likely.

The “Child Gets Upset When Away From His Mother” Argument
When you hear this argument, look for an insecure mother, or a mother that has managed to create an overly-dependent child through too much attention, or from spoiling the child, or possibly by the use of scare tactics (such as negative statements about the other parent). This ‘dependency’ is, in actuality, a self-fulfilling prophecy. The more the child is kept with the ‘favored’ parent, the more dependent he or she will become.

It’s not unusual for children to be a little anxious when separated from the parent they spend the most time with (this is especially true of young children), but this is not a valid reason to deny or limit the other parent’s time with the child. In fact, this is a good reason to increase it- no child should be so dependent on a parent that it affects them in a negative way. Once the child learns that they can be away from the ‘favored’ parent without anything ‘bad’ happening, they will become more self-assured and experience less separation anxiety.

The “Child Gets Upset When They See The Other Parent” Argument
Sometimes this argument also takes the form of “the child is scared of the other parent” or “the child doesn’t like the other parent”. The first version may simply mean the child is unfamiliar with the other parent, or it may mean that the child has been conditioned to be scared of the other parent (through the use of negative statements by the ‘favored’ parent). The second and third versions of this argument may indicate something more serious, such as Parental Alienation Syndrome (PAS).

Most children naturally want to love and bond with both parents unless there has been some sort of actual abuse going on. It is important to find out if the child is actually making these kinds of statements or if these are claims made by one parent in an attempt to prevent or reduce contact with the other parent. If the child is in fact making these statements, the possibility of PAS should be investigated.

If the child truly appears to be upset or fearful of contact with the other parent, the most probable cause is simply unfamiliarity with that parent. Children thrive on familiarity and spending time with a ‘stranger’ may indeed make them nervous or upset. The common-sense cure is to gradually increase the time the child spends with the ‘unfamiliar’ parent, preferably in an environment that the child is accustomed to and feels comfortable in. Reducing contact with the ‘unfamiliar’ parent will only increase the child’s unease with that parent.

The “Child Can’t Adjust To Different Parenting Styles” Argument
Unless the parents have extremely and radically different parenting styles, this argument can be dismissed by pointing out that this issue is almost never a point of contention in intact families. It would be unusual, to say the least, if both parents had identical attitudes and parenting styles; such is rarely the case in ‘whole’ families where the parents are together. This line of reasoning is probably one of the most baseless and unfounded ‘arguments’ against joint custody.

This argument can also be refuted by documenting and comparing the parenting styles of both the mother and the father, and then demonstrating that they aren’t really all that different. Concentrate on comparing items like disciplinary styles, hygiene practices, educational desires, and religious orientation. When compared side by side, it’s likely that you’ll find more areas of agreement than disagreement, and the areas and scope of disagreement will probably be relatively inconsequential.

The “Father Wants Joint Custody To Maintain Control” Argument
Essentially, this argument totally discounts the idea that fathers love their children and want to be a part of their lives. It also presumes to label the father as a ‘control freak’ simply because he desires some say in how the children are raised, as if he had no right to do so. This argument is best countered by showing that the father has played an active role in the children’s lives (or has tried to). Keep in mind that many fathers are prevented by the mother from taking an active role in raising the children. If the mother has interfered with the father’s involvement, it’s likely that you’ll see this argument used. You can also help to refute this argument by asking the court to recognize that both parents have a right to provide input concerning significant issues in the children’s lives.

The “Father Wants Joint Custody Just To Lower His Child Support” Argument
As in the preceding argument, this argument seeks to discount the idea that fathers might actually love their children and want to be a part of their lives. This same argument is often used when the father seeks sole custody; however, rarely is it said that “the mother wants sole custody just so she can get more child support”. This argument is a little harder to counter because most States will lower a child support obligation commensurate with time spent in the care of the other (non-custodial) parent. As in the preceding instance, showing that the father has played an active role in the children’s lives (or has tried to) can be an effective answer. Also, since the reduction in support is generally not a huge amount, it may be worth it to run the calculations so you can show the relatively small size of the decrease.

The “Tender Years” Or “Father’s Can’t Nurture” Argument
Thankfully, this argument has all but fallen by the wayside. To use this argument these days would likely indicate desperation on the mother’s part, not having anything more substantial to use as a ‘reason’ for opposing joint custody. Most judges will no longer ‘buy’ this argument, and it may in fact work against a mother who tries to use it. This argument is rooted in gender bias, and is unlikely to influence many judges these days. It is unlikely that you will hear this argument put forth in a modern courtroom; any attorney proposing it would most likely be accused of gender bias.”