Posted on October 26, 2009 by Eric S. Solotoff

READ MARK ASHTON'S EXCELLENT POST ON "CUSTODY EVALUATIONS"

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Custody Evaluation". To read the post, click here.

I have previously blogged on this topic, as well.  To review my prior post on How to Prepare for a Custody Evaluation, click here.

Though Mark is in Pennsylvania, much of what he says would apply in NJ too.  However, while he says that the evaluations typically cost between $5,000 and $7,500, while that is not an uncommon "retainer" for an evaluation in New Jersey, it is rare that the costs do not exceed the retainer, and that is just for the report.  It does not include fees for testimony at trial or a deposition. 

However, in New Jersey, I think that typically, judge's do find the reports useful, especially if the expert is a joint or court appointed expert.  That said, a judge is required to make independent fact findings and cannot simply defer to and/or abdicate judicial responsibility to the expert.  There are times that you have to fight the deference to the expert.  In those cases, you may need to get your own expert.  Given best practices,  judges do not always allow you to get a new expert if the expert is a joint expert.  If it is a court appointed expert, a party has a right to get their own expert.

At Fox Rothschild, our family law group is capable of handling the most complex and/or contentious custody litigation.  I have also previously blogged on the new American Psychological Association Guidelines for custody evaluations.  To review that post, click here.  Similarly, I have blogged on other "experts" for custody/parenting issues in high conflict divorces.  To review that post, click here. 

Tags: , , , , ,
Posted on August 20, 2009 by Sandra C. Fava

FIGHTS OVER CUSTODY - THE SAD TRUTH

In my opinion, perhaps the saddest and often most heart wrenching part of a family law matter is a fight over children.  Custody disputes are so personal and important to each side that if the right people aren't involved they can get downright nasty and last many years.  This is especially so when children are young at the time the divorce begins. 

Like it or not, once children are involved parties are connected to one another for life.  While not always possible, children are best served when parents can put their differences aside and the children's needs and best interests first.  Typically that means being the bigger person, taking a few deep breaths and staying focused on the goal at hand- the children.  While this may be easier said than done, parties who cannot agree or who engage in bitter custody battles can spend years in the court system not to mention thousands of dollars on experts, court appointed or otherwise who become involved to help the parties resolve their issues.

There are several experts who can become involved in a litigated custody matter.  Forensic psychologists, psychiatrists and/or social workers can either be court appointed or selected independently by a party.  Their function can be to provide a medically based opinion of each party and the child(ren) and the interrelationships in the family.  Through a series of tests and interviews, the psychologist can offer a medically based, informed opinion as to the best interests of the child(ren).  They can also function in a therapeutic setting to repair, re-establish or reunite a parent's relationship with a child.

Parent coordinators can either be psychologists, attorneys or even licensed social workers.   Their function is to serve as a neutral third party to effectuate communication between parents as to child centered issues.  Often, parent coordinators refer to themselves as referees as they can offer insight and a perspective from an outside vantage point.  Parent coordinators do not have authority to make the final call and either parent can still raise an issue to the court for determination.

An attorney appointed to represent the interests of the child(ren) acts as an independent legal advocate for the best interests of the child(ren) and takes an active part in a hearing.

A guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the child(ren).

The same person cannot serve as the guardian ad litem for the child(ren) and a court appointed attorney.

Once some or even all of these professionals are involved and a resolution is not reached, the issue of what's best for the child(ren) is placed before the court for determination.  A plenary hearing must be conducted "when the submissions of experts show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." "In child custody cases, a 'plenary hearing is virtually a necessity...unless there are overwhelming admitted facts (e.g. child abuse).  Such a hearing must be held...where serious and long standing effects on the life and well-being of the child may result.'" 

For an in depth discussion of guardian ad litems, court appointed attorneys for the child(ren) and the court's role in making the decisions, see Bell v. Bell, A-0308-06T3, Decided August 10, 2009.

Through the judicial system parents are given opportunities and tools to resolve these issues between them.  However, the best decisions are the ones that parties can agree to amongst themselves as they are the most likely to be followed.

Tags: , , , , , ,
Posted on July 2, 2009 by Robert A. Epstein

PHYSICAL AND LEGAL CUSTODY DETERMINATIONS - LOOK AT THE FACTS

Custody disputes are often the most emotional part of any divorce litigation.  Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child.  While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child's relationship with both parents is of utmost importance, as is encouraging both parents' involvement in raising the child. 

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child's best interests.  These factors include, but are not limited to, the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody; and the needs of the child.  The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009. 

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context.  A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate. 

Specifically as to physical custody, a court will also look at those factors focusing on the financial ability of the parents to provide adequate care in two homes; geographic proximity of those homes (looking at interference with schooling, the children's access to friends and relatives, and traveling between the two locations); demands of employment; and the age and number of children involved. 

The New Jersey Supreme Court has determined that, where joint physical custody is not appropriate, the court should consider awarding joint legal custody and physical custody to only one parent with "liberal visitation rights" to the other parent.  This way, both parents keep their decision-making roles as to the children and, as practicable, the non-custodial parent maintains a level of companionship with the child provided by joint physical custody.

Based on these considerations, the Appellate Division in Elliott affirmed the trial court's decision rejecting the father's proposal for joint physical custody, assigning sole physical custody to the mother, since the father failed to provide sufficient evidence regarding the joint physical custody considerations outlined above.  The sole custody arrangement was also deemed to be in the children's best interests since the mother was primarily responsible for the care and development of the children during the marriage and was most familiar and better able to address their medical, educational and social needs.

Interestingly, however, as to trial court's decision granting sole legal custody to the mother, while the Appellate Division affirmed the trial court's conclusion that the parents could not cooperate for the children during the divorce proceedings, it found that the trial court failed to adequately consider the importance of establishing a custodial plan that would maintain and foster the father's relationship with the children. 

Specifically, the Appellate Division noted the trial court's failure to consider years of parental cooperation prior to the divorce proceedings; failure to appreciate in its determination the mother's enrollment of the children in a before-school program that limited the father's parenting time; and the mother's preference for eliminating the father's parenting time entirely where there was evidence of the father abusing the children.  As a result, the Appellate Division remanded to the trial judge on the issue, allowing the parties to submit evidence on the legal custody issue.

As described above, physical and legal custody determinations are highly fact-specific considerations ultimately decided upon a review of the statutory factors, always with the best interests of the child at the heart of any determination.
Tags: , , , , , , , ,
Posted on April 14, 2009 by Eric S. Solotoff

The American Psychological Association Issues New Guidelines for Child Custody Evaluations in Family Law Proceedings

Last week, I authored and released a Family Law Alert regarding the new Guidelines for Child Custody Evaluations in Family Law Proceedings issued by the American Psychological Association Issues. To view a PDF version of the alert, click here.  The full text of the alert is as follows:

The American Psychological Association (APA) notes that parties resolve child custody issues amongst themselves in 90 percent of the cases. When parties cannot resolve custody and visitation issues (called “parenting time” in New Jersey) amongst themselves or after a court’s early intervention program, the next step is to have a child custody evaluation performed by a forensic psychologist. In some cases, the court will appoint this expert. In others, the parties may agree upon a joint expert. In bitterly contested cases, parties often have their own custody expert - and there may also be a court appointed expert.

In 1994, the APA developed Guidelines for Child Custody Evaluations in Divorce Proceedings. The APA issued updated guidelines effective February 21, 2009, which are effective for the next 10 years. These Guidelines consist of 14 individual guidelines that are meant to be aspirational in nature, and not mandatory. Rather, the Guidelines are intended to facilitate the continued systematic development of the profession and a high level of practice by psychologists. The Guidelines were not intended to be exhaustive nor replace the judgment of the psychologist. That said, they provide fodder for cross-examination during a custody trial if the expert is not aware of the Guidelines and/or fails to follow them. A rationale and application is provided for each of the following 14 Guidelines:

1.  The purpose of the evaluation is to assist in determining the psychological best interests of the child. Since the ultimate standard in deciding a custody case is “the best interests of the children,” the Guidelines reinforce that the psychologist should be focusing on the psychological best interests of the children, which is what the Court expects. The Guidelines encourage the expert to weigh and incorporate family dynamics and interactions; cultural and environmental variables; relevant challenges and aptitudes for all examined parties; and the child’s educational, physical and psychological needs.

Litigants going through the process of a custody evaluation should provide the expert with all relevant information regarding these factors. In reviewing the expert report, make sure that the expert has addressed them all. If it is your own expert, you may want to inquire why these issues are not included. If it is a neutral or adverse expert, it is a potential issue to be raised on cross examination. With the neutral expert, you may not want to wait until trial. If any of these factors are important enough to impact the final recommendation, you may want to ask the expert to reconsider his or her recommendation in light of this information.
 

 

2. The child’s welfare is paramount. While a parent’s concerns need to be considered and may be forcefully advocated by a parent (this may occur in cases where a parent seeks to relocate with the children), it is the child’s best interests that must be the most important consideration.
The evaluation focuses upon parenting attributes, the child’s psychological needs and the resulting fit. The APA notes that a psychologist’s training provides him or her with the “unique skills and qualifications” to address these issues. To make an evaluation useful and credible to a court, the evaluation should focus on the skills, deficits, values and tendencies relevant to parenting traits and a child’s psychological needs. In addition, more than just providing a personality assessment, the results must be placed in the appropriate context.


3. Psychologists strive to gain and maintain specialized competence. In addition to the general level of expertise that comes with a psychology degree and early training, psychologists are required to continue to stay abreast of changes in the field. This means that they must have an up-to-date understanding of child and family development, child and family psychopathology, the impact of divorce on children, and the specialized child custody literature. In addition, the Guidelines require psychologists to remain familiar with the applicable law regarding child custody. Attorneys should make sure that psychologists are aware and have copies of the custody statute and the relevant Court Rules. In addition, if it is a relocation case, which has numerous factors of it’s own set forth in the case law, the expert should have the case. In fact, if the law is not appropriately considered in a report, it is fodder for cross examination. So too would be an expert’s lack of familiarity with the law or recent research by people deemed to be leaders in their field.
Psychologists strive to function as impartial evaluators. Obviously, the lack of partiality would taint the entire process.

4. Psychologists strive to engage in culturally informed, nondiscriminatory evaluation practices. As with the prior factor, the need to avoid any type of bias is self-evident. That said, it is important to be familiar with cultural differences and language differences. Cultural reasons may provide explanations for a party’s conduct that may otherwise seem unusual or improper. For example, when translation from English to another language is required, there may be verb conjugation issues that can be misinterpreted.

5. Psychologists strive to avoid conflicts of interest and multiple relationships in conducting evaluations. This guideline has probably received the most discussion over the years. Specifically, psychologists are urged not to wear more than one hat. If they are the treating therapist, they should not be the custody evaluator and vice versa. The APA notes that in some jurisdictions, this can result in legal liability and professional discipline. These multiple roles may also violate APA Ethical standards.

6 Psychologists strive to establish the scope of the evaluation in a timely fashion, consistent with the nature of the referral question. Psychologists must know what type of evaluation they are supposed to be doing and when it is expected.

7. Psychologists strive to obtain appropriately informed consent. The reason for this is to honor the legal rights and personal dignity of the examinee. More importantly, the participants have to be made aware that the results of the evaluation will be used in the litigation.

8. Psychologists strive to employ multiple methods of data gathering. The more methods of data gathering that are done, the more likely that the results of the evaluation will be reliable. This includes psychological testing, clinical interviews, behavioral observation, access to documentation from a variety of sources (e.g. schools, health care providers, child care providers, agencies and other institutions), and contact with collateral sources (e.g. extended family members, friends and acquaintances). Litigant’s want to be sure to provide this information and these contacts to the expert if they believe that this will help their case.


9. Psychologists strive to interpret assessment data in a manner consistent with the context of the evaluation. Psychologists are encouraged to consider and document the ways in which a custody dispute may impact the behavior of persons from whom data are collected. This is especially so with regard to the psychological personality testing, which may reflect elevated scores in certain areas because of a custody dispute.

10. Psychologists strive to complement the evaluation with the appropriate combination of examinations. The essential aspect of this Guideline is that the psychologist must actually meet with and examine a party in order to render a specific opinion about them. The APA Ethics code requires this.

11. Psychologists strive to base their recommendations, if any, upon the psychological best interests of the child. When psychologists make child custody recommendations, they should be derived from sound psychological data and address the psychological best interests of the child. In addition, they should not be based upon personal biases or unsupported beliefs. Rather, the recommendations should be based upon articulated assumptions, interpretations and inferences that are consistent with established professional and scientific standards.

12. Psychologists create and maintain professional records in accordance with ethical and legal obligations. This is necessary to allow other professionals to analyze, understand and/or challenge the psychologists’ forensic opinions. Obviously, if the expert’s file does not contain the information consistent with the findings and opinions in the report, it is subject to attack.


The new Guidelines should be considered and understood when going into a custody evaluation, and all reports must be reviewed and scrutinized in light of the Guidelines. In addition, many states have guidelines for psychologists performing custody evaluations (New Jersey, Pennsylvania and Delaware among them), which should similarly be considered.

Family law issues involve complex choices and decisions, and child custody is no exception. For more information regarding the revisions to the APA Guidelines for Child Custody Evaluations in Family Law Proceedings or guidance on other family law issues, contact Eric Solotoff at 973.994.7501 or esolotoff@foxrothschild.com or any attorney in Fox’s Family Law Practice.
 
Tags: , , , , , , , ,
Posted on January 29, 2009 by Jennifer Weisberg Millner

My Child Wants to Live with Me

So often I hear this statement from a client in a case in which custody is an issue. The next question is usually, “can my child tell the judge what he (or she) wants? The answer to that question is a definite maybe. 

The New Jersey Court Rule 5:8-6 provides that when a court finds that custody of a child is a bona fide issue, the Court may, at the request of a party, or on its own, conduct an interview of the child. This interview is to be conducted in camera, which means the child will be alone with the judge for the interview. Although the interview is conducted by the judge alone with the child without the parents or the attorneys present, it is done on the record, meaning the entire interview is recorded, and the parties are entitled to a copy of the transcript of the interview. Additionally, counsel for the parties must be permitted to submit questions to be asked of the children ahead of the interview. If the Court decides not to ask that questions that have been submitted, the judge must tell the party submitting the question the reason for the decision not to ask the question.

 

The current rule is a change from the prior rule which had mandated an interview when custody was an issue. However, in 2002, the rule was changed to make the interview discretionary. In the event that a judge decides not to conduct an interview, the judge must place its reasons for not doing so in the record.

 

Judges often have good reason for not wanting to conduct an interview. Sometimes it may have to do with the particular facts of a case, when, for example, a judge feels that he or she has enough information and an interview may be unduly stressful to the child. Other times, the court may feel that a child is too young to be able to provide accurate information, or that the child is being influenced by one or the other parent and the wishes expressed may not be valid.

 

On the other hand, some judges simply do not feel comfortable with the interview process. In one case, Mackowski v. Mackowski, 317 N.J. Super. ( App.Div. 1998), one of the Appellate Division judges stated that he believed that judicial interviews of children were in fact harmful to the child and actually had a risk of being destructive to parent-child relationships. He thoughtfully expressed his belief that no matter how sensitive a judge tries to be, there is nothing that judge can do to convince the child that he or she is not responsible for the ultimate outcome of the case.   In his comments, Judge Kestin noted his belief that it is far better to leave the job of an interview to a mental health professional who has years of professional training and experience.  

 

Certainly, there will be cases in which it is appropriate to have a court conduct an interview of a child in connection with a custody dispute. However, Judge Kestin’s insightful comments are ones which all attorneys and litigants should keeping mind when experiencing that automatic impulse to ask a judge to conduct an interview with a child.    

Tags: , , , ,
Posted on January 23, 2009 by Eric S. Solotoff

EXPERTS. EXPERTS, EXPERTS

Early on in a case, the lawyer and client will have to determine what experts will be necesary to resolve a case either for settlement or trial.  In fact, at the first Case Management Conference, the uniform Case Management Order requires that you identify the types of experts you need and how they are going to be paid for. 

What is an expert and why do we need them?  Per the Rules of Evidence, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."  Simply put, an expert is a tool to help determine a fact.  Experts provide information that the parties cannot generally provide themselves.

What kind of experts are used in these cases?  The following are some examples:

  • Forensic accountants to value busineses, determine actual income, trace income and assets (including tracing premarital assets), to provide lifestyle analysis, to provide cash flow reports based upon proposed alimony and child support scenarios and a variety of other financial related issues,
  • Business valuation experts (sometimes they are not accountants)
  • Experts to value stock options or other exployee benefits - often but not always accountants
  • custody evaluators - usually forensic psychologists, but occasionally forsensic psychiatrists and social workers, who will give an opinion of custody and parenting time
  • educational experts - to determine which school or school district is better, what program is better, public vs. private school issues, educations issues regarding children with special needs
  • employability experts  - to determine what someone can and/or should be earning.
  • pension appraisers - usually actuaries, to determine the value of a pension, parse out premarital shares of 401ks, and draft Qualified Domestic Relations Orders
  • Real estate appraisers
  • personal property appraisers
  • jewelry appraisers
  • art, coin, antique appraisers
  • medical doctors - to assess disabilities or sometimes personal injuries
  • handwriting experts
  • computer forensics
  • Interpreting services (for documents in foreign languages)
  • experts to value intellectual property

There are probably many other types of experts.  This list does not even include other professionals that may help the parties, but probably not testify, like financial planners, stock brokers, insurance agents, parent coordinators, reunification therapists or for that matter any treating therapists.

Over the years, we have worked with most or all of these types of experts as the need has arisen.  Should an issue requiring an expert come up in one of our client's cases, we are well equipped to handle it.

Tags: , , , , , , , , , ,
Posted on November 6, 2008 by Eric S. Solotoff

READ JANE LESSNER'S EXCELLENT POST ENTITLED "WHAT TO TELL YOUR CUSTODY LAWYER."

Jane Lessner, a partner in our Philadelphia office, wrote an excellent post entitled "What to Tell Your Custody Lawyer" on the firm's Pennsylvania Family Law  blog.

To read the full text of Jane's Blog entry, click here.

EDITOR'S NOTE:  Previously I blogged on "How to Prepare for a Custody Evaluation."  To view that post, click here.  We also have many other posts and custody and visitation/parenting time issue which can be viewed by clicking on the proper link under the "Topics" menu on the right side of the blog page.    Since we update our blog several times per week,  please check back often  for new entries.  Eric S. Solotoff

 

Tags: , , , , , ,
Posted on July 16, 2008 by Eric S. Solotoff

SOLE VS. JOINT LEGAL CUSTODY - IS IT WORTH FIGHTING ABOUT?

A lot of times clients come in saying that they want full or sole custody of the children.  This inevitably leads to a discussion regarding the distinctions between legal and residential custody.

Legal custody is essentially involves decisions regarding children's health, education, religion and general welfare.  With sole legal custody, one parent can make all of the decisions regarding these matters, though they have to consult the other parent in most cases.  With joint legal custody, the parents must consult and attempt to agree. 

Residential custody is where the child lives.  Some catch phrases often used are Parent of Primary Residence (or PPR) and Parent of Alternate Residence (or PAR).  Surprisingly enough, the official definitions for these terms come from the Child Support Guidelines.  Simply put, the PPR is the parent with whom the children reside more than 50% of the time. 

Now, with regard to the question as to whether it is worth fighting about the issue of sole vs. joint legal custody.  In practice, I have found that even in all but the worst of situations, must custody experts recommend and most judges order joint legal custody.  This is even though there is case law that says that joint legal custody may not be appropriate if the parties evidence no ability to communicate.  Of course, if it is the custodial parent that wont cooperate, it seems unfair to reward that parent with sole custody. 

In addition, there is a presumption in the case law that the custodial parent gets the final say in the event of a deadlock between the parents, even when there is joint legal custody.  This has come up time and again in reported decisions, including in cases regarding religious upbringing and of all things, a nose job. 

So, if the experts and courts are usually going to recommend joint legal custody, a litigant must investigate whether it is really worth it to fight for sole custody  Similarly, if the PPR has the legal presumption anyway, one must really consider whether it is worth the fight. 

This is not to say that it is not worth fighting about custody.  The real fight in most cases, if there is a bona fide dispute,  is and should be who is the PPR and how much parenting time the other parent enjoys. 

Tags: , , , , , , , , , , , , , , ,
Posted on June 7, 2008 by Eric S. Solotoff

HOW TO PREPARE FOR A CUSTODY EVALUATION

Custody evaluations are very important in determining child custody and access during contested divorce proceedings. Divorce courts give considerable weight to the recommendations of the evaluator. In addition, the participates are usually extremely nervous about the process.

As such, before an evaluation, I try to meet with my clients to let them know what to expect.  I also try to give them some basic guidelines as to how to act. 

Below are some guidelines that will assist a person to prepare for your custody evaluation with the expectation of ending your custody battle.

• Arrive on time at your custody evaluation interview.
• Dress neatly and conservatively.
• Be honest. The custody evaluator will likely check out your statements with collaterals and/or other sources.
• If the custody evaluator chooses to use psychological testing, ABSOLUTELY answer honestly. The tests are designed to detect defensiveness and lies and unless you are an expert in psychometric testing, you are unlikely to fool them.
• Be sincere. The custody evaluator can usually detect over embellishment and insincerity.
• It's all right to be nervous; most people are.
• It's all right to cry and/or show emotion; many people do.
• Answer questions directly and to the point.
• Make sure you pay attention to what the evaluator is asking.
• Take your time when answering a question. If you do not understand what is being asked, feel free to ask the evaluator to explain what he/she means.
• If the custody evaluator asks that you provide additional documentation, do so as promptly as possible or communicate any concerns about getting it.
• If you provide the custody evaluator with names of collateral contacts, it is a good idea to inform them in advance that they may be contacted so that they can prepare to speak on your behalf.
• If the custody evaluator is observing you with your child(ren), be attentive to their needs and focus on their interests and not yours.
• Present yourself as being reasonable and placing the concerns of your child(ren) above all.
• Relax and let the best aspects of your personality come out (patience, humor, concern for the child(ren)’s well being, etc.)

The following is a list of things to avoid doing during a custody evaluation
• DO NOT speak badly of your spouse/partner unless the custody evaluator asks you to comment on what you perceive to be the problems between you.
• DO not make threatening comments about your spouse/partner or anyone else to the evaluator.
• DO NOT harass the custody evaluator with phone calls.
• DO NOT drop by the evaluator's office without an appointment.
• DO NOT call the custody evaluator to see if the report is completed.
• DO NOT prep your child(ren) to say negative things about their other parent. The custody evaluator has ways of telling if this has happened.
• Custody evaluators recognize the stress people are under during this process and take this into account when assessing family members.
• If you are feeling stressed and anxious, it is all right to acknowledge it and allow the custody evaluator to help allay some of your concerns.

The following is a list of things that the evaluator is looking for:
• Empathy (the ability to understand what the children are feeling and the willingness to react appropriately)
• Setting appropriate boundaries
• Proper environment and proper care providers
• A loving relationship between you and your child(ren)
• Behavior supportive of the relationship between the child(ren) and the other parent
• Behavior which demonstrates that you are striving to keep the child(ren) insulated from the conflict
• Lack of hostility toward your spouse. (Speak of past problems in a matter-of-fact way, indicating that you these things behind you)

 

Custody evaluators recognizes that there are no perfect parents and his or her recommendations should be directed at determining the best parenting arrangement to meet your child(ren)'s needs.

The following is a list of other general tips:

• Do not make derogatory remarks about the other parent in general, and especially not to or in front of the child(ren)
• Do not make derogatory remarks about the other parent’s family in general, and especially not to or in front of the child(ren)
• Do not use the child(ren) as messengers
• Do not refuse to talk to the other parent regarding the child. This does not mean that you should have to accept abusive communications.
• If you are the non-custodial parent, do not leave the child with babysitters excessively.
• Communicate with the child(ren)’s educators and health care providers.
• Do not keep the child(ren) involved in activities from dawn until bedtime.
• Do not be inflexible regarding parenting time issues.
• Do not allow a new significant other to get involved in the custody dispute.

Also, be cognizant that some evaluators ask provocative questions, apparently aligning with you, to get a response.  Do not take the bait even if you think that the evaluator agrees with you that the other spouse did something wrong.  Rather, stick to the rules set forth above to minimize being tripped up. 

Tags: , , , , , , , , , , , ,
Posted on May 7, 2008 by Eric S. Solotoff

Pet Peeve - People Who Use Custody and Parenting Time Issues as Bargaining Chip for Financial Issues

One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement.  I have several matters ongoing now where that is occurring.

In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances.  Put another way, they were only going to resolve visitation if my client made financial concessions.  The bad faith of the tactic was evident.

In fact,  in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits.  This does not even really come into play in high income cases that exceed the Child Support Guidelines.  That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money.  However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties. 

The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case.  At the outset of a case, the parties are required to attend a Parent Education program given by each county.  After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect.  Only then, do you get into custody and parenting evaluations with experts, etc.  Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.

A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows:  one parent is the traditional stay at home parent - the other is the Type A executive type that leaves the home at 6 a.m. and doesn't return home until 7 p.m.  Sometimes, that person travels substantially for business as well.  The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the  parent that works out of the home demands either custody or a 50-50 parenting arrangement. 

In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip.  That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents. 

That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts.  The children are now made part of the process and have to meet with the expert several times.  Their teachers may be contacted.  Their doctors and therapists may be contacted.  The parties' therapists may be contacted.  Other collateral sources may be contacted (neighbors, coaches, family members, etc.)  The price to pay on the family, aside from the legal and expert fees, is high - especially when the issue is for bargaining only.

Don't get me wrong.  I understand that there are good faith custody and parenting disputes that require this process.  While the toll is still the same, that may be unavoidable.  However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip.  The collateral damage may be great.

Tags: , , , , , , , , , , , , ,