Friday, January 16, 2009
When the Truth Hurts
This has been a grueling week and one of those that just when you think it can't get worse, it does. But that is the way it goes for everyone and I won't dwell on it. The very good news is that I don't have court today and with MLK holiday and inauguration, I have some down time that I plan to use quilting. With any luck I will make some progress on my Amish nine patch. Perhaps I will get up enough nerve to tackle the mess that is Jezebel's Quilt.
Outside, it is bitterly cold and a breeze is roaring through my office/sewing room. So I am downstairs typing and trying to keep warm. I should probably do some jumping jacks. Living in this house is like living in a colander. I can't wait to get back home to my solid house in Oklahoma.
Some people ask me what happens in a custody/visitation trial and there is no simple answer because there are so many variables in the facts and which judge is presiding. If someone has hired an attorney, they are there to answer their questions. Frequently, however, at least in the juvenile and domestic courts, parents proceed pro se (pro se means they are representing themselves). Sometimes one has a lawyer but ofttimes neither can afford one or don't want one. The court is not going to appoint an attorney for a parent in a civil custody/visitation case so, at times, things are a little bit more of a challenge. Like most lawyers, I prefer to work with other lawyers who already know the rules of the game and usually have more perspective on the situation. But that just goes with this line of work and we are used to it.
Procedurally, we try to keep things as simple as we can but there is only so much you can do. A bright parent frequently does a bang up job. A more limited parent has a harder time of it. When they are emotionally volatile on top of that, it is sometimes quite difficult to explain the proceedings because they don't grasp that this is just the way things are done. They would frequently also change the United States Constitution given the opportunity, btw. They don't understand different types of hearings and no matter how often you tell them, they think every hearing is a full blown trial. Moreover, they often can't separate the procedure from the underlying facts. To make it more challenging, since I don't represent the parents as THEIR attorney, I have a bright line to walk in explaining the process vs. giving them legal advice (Even though the judges tend to sort of want us to take care of that to keep things going smoothly).
Parents who have never been in a custody/visitation trial on their own don't really have any way of knowing what to expect and that causes them a great deal of angst if their brain is functioning, at all. With the right parent, I can give them an overview while we sit outside in the hall but many of the parents are so agitated at that point that they can't concentrate or are already in battle mode and want to argue that this or that isn't fair or that they shouldn't have to be in court in the first place. Meanwhile, while you are talking to that parent, the other parent is across the hall seething and freaking out because they are sure you have decided to represent their adversary (convinced that there is an ominous reason I spoke to the other parent, first). It doesn't seem to matter how often I try to tell them where I coming from - these folks are so wound up that they have a hard time thinking straight at that moment. It is bad enough - it's horrible - to be in a situation where your child's future is being decided. Add to that the fear many have of public speaking, the high level of emotion (usually negative) they feel at the sight of their former partner, and the understandable fear of the unknown. The result is hell in a porta potty. I compare it to the mental stress I personally feel when I am afraid I am going to miss a connecting flight. Which tells you how much I hate flying (the airport part).
What I end up doing, many times, is wait until we go into the courtroom. Frequently, the judge is not yet on the bench. A silence falls upon the parties as soon as the courtroom doors are closed. It is exactly like being in an elevator when no one is talking. If the judge isn't there, I use this time to take an upbeat tone and proceed to give a spiel on what to expect. It fills the silence, doesn't alienate one party or the other, and allows me to stick to the procedure rather than the facts.
Simple things like:
- "Guys, come on up and grab a table, it doesn't matter which one." [They usually don't fight over who gets which table although there may be some "don't give me your cooties" body language as they get out of the way to let the other parent pass. Cocking an eyebrow at them ala junior high/middle school teacher generally settles them down].
- "The judge will have you stand and swear you in. Usually, the witnesses have to stay outside until they testify and they can't talk about the case. That is called "The Rule." So after she swears everyone in, she'll ask if the rule is in place and I will say yes. That is what she is talking about and she'll send everyone back outside except you guys. They'll come in when she needs to hear their testimony."
- "This judge will usually ask if you have reached an agreement. We'll tell him 'No.'" [Sometimes this results in an emotional parent complaining that we would have an agreement if the other side would just agree to their terms. Sigh].
- "This judge sometimes will ask the guardian ad litem to sort of fill him in on how things are going and if he does, I'll give him an overview." [some mentally groan - you can just see it].
- "Here's how it goes, mom and dad - the one who filed the motion (or petition) goes first. You'll get to call your first witness and ask questions. Then the other side gets to ask questions. I'll get to ask questions and the Judge may ask questions. It is really not too formal so try not to get too worried about it. Sometimes the judge moves that around but usually that is what happens."
- "If you want to give testimony, the Judge may let you sit there or she may want you to come up to that chair [I point to the witness chair]. She'll let you have your say and then let us ask you questions. She may have questions, herself. She probably will."
- "After you finish up all your witnesses, the other side gets to bring their witnesses and we'll do it just the same way."
- "Just remember to ask witnesses questions. The judge will fuss if you start arguing with each other." [some judges don't let nonlawyers give closing statements so I don't tell them they'll get their chance to argue].
- "When it is all done, she will probably ask me if I want to add anything for my report and if I have any recommendations."
- "The Judge almost always makes a decision from the bench. We may need to come back and enter an Order but let's not worry about that, right now. That is not a big deal and, seriously, it will all get taken care of."
I am not sure how much this actually helps the parents but it keeps them from killing each other while we wait.
The first person to testify, frequently, is the person who filed the motion or petition. And if they filed the petition or motion, it is because they think something needs to be changed or clarified. The first person to go up usually has the toughest time since they have the burden of proof and because the judge frequently doesn't know anything about the case at this point.
In pro se cases, what usually happens is that the parent jumps into the middle of the situation, leaves out most of the important underlying facts and makes a complete muddle of it. No offense to them but that is what generally happens. They aren't trained, they are nervous and frequently they don't know what information the judge needs to make his decision. In a normal situation, the other parent would have the next opportunity to cross examine them but I find that many judges will alter the rules and ask me to go, next. That is because they know that I will walk the person through what we need so the judge can have a clue what is going on. This is why it is super important to know the facts of the case, including when things happened, where they were, who was living with whom, etc.
So what happens generally goes something like:
Me: "Dad, you and the mother were never married, is that correct?"
Dad: "No, we never married."
Me: "How long were you together?"
Dad:"Oh, about a year. She got pregnant right away and we tried to make a go of it but it didn't work out."
Me: "How old was Susie when you separated?"
Dad:"Susie was about three months old."
Me: "Susie stayed with her mother?
Dad:"We sort of shared custody. I had her from Friday through Monday. Her mother had her on Tuesdays, Wednesdays and Thursdays. We split holidays."
Me: "How did you two come to this arrangement?"
Dad:"She was an ER nurse and worked Friday, Saturday and Sunday. She slept on Monday."
Me: "How old is Susie, now?"
Dad:[always a big smile] "Yes! She's very healthy! She used to get ear infections but we put in tubes and that took care of that."
Me: "Dad, you just testified that Susie now lives with you, correct?" [because that is all the information he gave the judge]
Me: "Now, Dad, when did Susie first come to live with you?"
Dad:"Two years ago."
Me: "And who did she live with before that?"
Dad:"Oh, I forgot, she lived with my sister."
Me: "And where was the mother living?"
Dad:"She was living in another state."
Me: "Where were you living?"
Dad:"I was in the military, in Iraq, so we decided Susie should live with my sister."
Me: "Was there a reason Susie wasn't living with her mother?"
Dad:"Yes, her mother had a Child Protective Services charge against her and agreed to allow Susie to live with her aunt to keep her from going into foster care. I can't believe I forgot to tell the Judge that!"
Me: "How old was Susie when she was placed in the custody of your sister?"
Dad:"She was five. No, wait, she'd just turned six because it was in August and I was in basic when all that stuff happened. Wait, no, I shipped out in August. So all that stuff must have happened before that."
Me: "So are you saying that Susie was just about six when she went into your sister's custody?"
Dad:"YES! That's right. She started first grade at Bridgemont Elementary. My sister had to get all the paperwork."
Me: "Was Susie living in another state with her mother when all the child protective stuff happened?"
Dad:"No, they lived here. We'd kept shared custody, informally, up to that point and the plan was that she would stay with her mother while I was in Iraq. The mother moved to the other state with her boyfriend as soon as all that stuff came out." [yeah, he rattled on but it probably is fine]
Me: "Are you aware if the mother visited Susie during the time she was in the custody of your sister?"
Dad:"My understanding is that she visited twice."
Me: "Where did those visits take place?" [technically, this could probably be objected to as hearsay but it rarely happens unless there is a big dispute over the visitation facts. If I knew that the amount of visitation between the mother and child was in dispute, I probably wouldn't ask the question this way]
Dad:"She took her back to her house for a long weekend, once. Another time, she took her to the mall but it was just a day visit."
Me: "How far is it from the mother's home to your sister's home at the time?"
Dad:"About 225 miles."
Me: "Why did you decide to change custody of Susie from your sister to you?"
Dad: "Because I came back from Iraq."
Me: "Did the mother support that decision?"
Dad:"Yes, she did."
Me: "Did you agree to a visitation schedule at that time?"
Dad: "Well, we had a trial about it and the judge decided how it would go."
Me: "And this is the visitation order that was entered?" [showing him a copy or referencing the date].
Me: "And you filed this motion to change visitation with her mother, is that right?"
Me: "How often has the mother visited Susie in the past two years since custody came back to you?"
And so it goes.
Usually, there is no need to get tricky. The facts generally speak for themselves and the judge is perfectly capable of assessing the character of the witnesses if the proper questions are asked. And if I forget to ask them, chances are the judge will have enough of an idea of the case to have a clue if something doesn't add up. Have I mentioned how much I respect our Juvenile and Domestic Court Judges?
Yes, I admit that I will quietly bait some parents who I know are dangerously hotheaded or unstable, but it doesn't take much if their emotions really are a problem. What the baiting usually amounts to is simply pinning them down so that they have to be specific or challenging something built on a very fragile foundation. In a nice way, is best. If you have to brow beat a parent to get them to lose their cool, in my opinion, that is skirting dangerously close to entrapment and it will look to the judge like you just don't like that person.
Sometimes a liar needs to be exposed because they frequently make extremely sympathetic witnesses if they are any good at being a con. That, again, is why it is important to know your cases.
But it isn't rocket science and most pro se parties aren't savvy about court, anyway. Frequently all you need to ask them to do is tell the judge what is going on and why they think the child's best interests are served by doing what they are asking the court to do. If they are poor parents, they don't have any idea that what they are doing is frequently sort of ridiculous to put it mildly. Lest anyone think I am too proud of my own parenting skills, let me just assure you that sometimes my best tool is the fact that I have made the same boneheaded mistakes and lived to bitterly regret them.
Case in point on allowing parents to be themselves - in a recent case, I asked a clueless father why he thought the mother should lose custody of their twelve year old daughter, "Sadie." He admitted that the mother took good care of the child but she was too "restrictive."
"Too Restrictive?" I ask, "Can you give me an example of what you mean?"
"Yes," he clarified, "Too restrictive because she didn't want Sadie to be playing at the trailer park until she met the parents of her friend that lived there. I think the mother is being too protective. After all, I know that is a high crime area and we've all heard about that murder that happened on the street there last month. But Sadie needs to grow up sometime and there are bad people everywhere - not just at the trailer park. She needs to learn how to deal with them. The mother completely completely humiliated Sadie when she insisted on driving her over and meeting the other child's parents, in person."
...Long pause while I absorb what he just said (and yes, this is pretty much word for word)
I rest my case, Your Honor.