There are all kinds of family law cases, and each one is unique. Some are straightforward and others are complex. Attorneys highlight the favorable aspects of their clients, and de-emphasize the unfavorable. Trials take on lives of their own regardless of what clients, attorneys or even judges expect. There are a lot of moving parts, especially when cases are lengthy and complex. Especially with the best cases, editing is the hardest part. Too much of a good thing can backfire when the judge is knee-deep in “good” information. Clients and attorneys don’t always agree on where to draw the line.
In the Court Room
In Pitt County family court, each side has a specific number of hours assigned to try their case. A two day trial might be distilled to 5 or 6 hours for each side, after taking into account lunch breaks and short breaks throughout the day. That might sound like a lot but it really isn’t because that includes any opening remarks, questions to witnesses, cross examination and closing argument. The court has to keep cases moving through the system, which is already tremendously over-burdened. Time is of the essence.
Exhibits are usually documents each side admits as evidence for the judge review before deciding the outcome of the case. Depending on the type of dispute there is, exhibits might include photos of the children, copies of grade reports and medical records, text messages and e-mails between the parties, records of each party’s wages and insurance, bank and credit card statements, or tax returns. A complex case might have 30 or 40 exhibits, each being multiple pages. The judge has to review two stacks of “basic” exhibits, one for each party. Frankly, they can be rather dry and boring.
Less is More?
Like anyone else, some judges have longer attention spans than others. If it is a custody case, they don’t mind five or ten photos of the child at issue. They do mind thirty photos unless there is some specific reason. For a trial, a good attorney creates a cake, so to speak. The cake itself forms the foundation, the basics. The “goodies” are the decorations or icing on the cake. One example of goodies might be love letters written to a third party by a cheating spouse. It is usually more powerful to select four or five of the best “goodies” instead of diluting the value by heaping them on indiscriminately. These exhibits must be distinct to stand out from the rest. You might have fifty or sixty pages of e-mails where you should have ten. Your attorney has been in trials with a certain judge and knows his or her preferences. Take your attorney’s advice and get the best bang for your buck, and keep the judge focused on the priorities that matter to you.
The vast majority of child custody cases are settled out of court. Parents or custodians sometimes negotiate on their own with attorneys to reach an agreement. Another way an agreement in custody case can be resolved is by mandatory custody mediation where a neutral mediator and both parents meet in an effort to create an agreed-upon custody order. The cases that fall outside of the vast majority and are litigated in court are the ones that are most complex. For example, it is difficult to “split the baby” when parents live in different parts of the country and both want to have primary custody. That usually means that one parent will have most of the school year with the child or children, and the other will have most of the summer vacation. These are the types of cases in which parents often consider having a child custody evaluation performed.
What is a Child Custody Evaluation?
Performed by a psychologist, a CCE results in a written report that is provided to the court. The psychologist evaluator will then testify as an expert witness at the child custody trial. The exact details vary depending on what the expert is appointed by the court to do. But the evaluator usually administers psychological testing, such a personality test called the MMPI-2, for each parent or guardian. The test results identify the strengths and weaknesses of each parent. The evaluator typically reviews the medical and mental health records of the family members, meets with the family members separately and together to interview and observe them, and contacts third parties such as teachers or third parties who reside in the home. The evaluator might even do a home visit to each parent’s residence. Based on all of this, the CCE report will make recommendations about what is in the best interest of the child or children.
What Does the CCE include?
The CCE report will usually give the judge insight on what the child actually needs, as well as explain each parent’s parenting styles. To over-simplify it in an example, if a child suffers from anxiety, he or she might need a very structured routine and one parent might be more decisive than the other. There is usually a list of these sorts of conclusions, followed by recommendations, which almost always include a course of mental health treatment. That treatment must be referred to a third party professional because the evaluator psychologist is used only for court and is prohibited from treating any of the family members. Another recommendation might be for the court to assign a parenting coordinator, who is authorized to make minor decisions when the parents dispute what the custody order requires them to do. Recommendations are otherwise based on each family’s disputes and needs. These might include the frequency of phone calls with each parent, or who is better suited to make medical decisions if the child has serious medical problems.
What are the Advantages and Disadvantages?
If the report recommends a schedule or a parenting plan that benefits you, congratulations. You now have a built-in expert witness testifying on your behalf. However, if the report favors the other parent, you are at a definite disadvantage. Overall, judges are inclined to accept the recommendations. This is less about rubber stamping the report than it is about having an expert with a string of letters behind his or her name tell the judge why he or she should do what is in the report. Unlike a psychologist evaluator, the judge isn’t going to go to your house, give you a personality test, talk to your child (most likely) or observe each of you with your child. Instead, the judge is usually only getting to see you and the other parent for a few hours while you testify in your dress clothes. CCEs can be extremely expensive, and insurance usually does not cover them. One or both parties might choose to have an attorney depose the expert in a deposition, which adds significantly to the cost. Judges often expect the parties to share the cost when they appoint the expert to perform the CCE. After the trial, the judge has the authority to assign the costs for CCE, including reimbursement of one party by the other for the full cost, including the deposition and the expert testimony.
In the real world, people’s morals form the foundation of their beliefs, of right and wrong. If someone does something wrong, there is an expectation of consequence or penalty. A parent punishes a child for bad behavior. Or, relatives might disown each other and spend decades estranged from one another because one of them wronged the other. Paying someone back, or washing your hands of him or her for “bad” behavior may be totally justified in the real world. In fact, that is usually the reason a couple separates.
Judges in custody cases look at things differently. It helps to think of court as its own little eco-system. Courts are based on the law, plodding through a checklist of legal considerations that must be made. These considerations are not necessarily based on right and wrong. Judges start from the premise of no-fault, similar to no-fault divorces. Why you separated is irrelevant to the judge if you obtain a divorce in North Carolina. Bad behavior of one parent matters little unless it relates to the safety and well-being of the child.
How Bad is Bad?
As with most of the matters in family cases, it is a matter of degree. Clients sometimes ask if the court will deny visitation or terminate the other parent’s rights. The answer is no, in the vast majority of cases. The degree of bad behavior that is required to do so is extreme. The courts will not deny visitation because the parent is mediocre, or because he or she is a poor parent. It is likely he or she will have visitation and the question becomes a matter of how frequently and for how long. If the other parent behaves poorly, the judge may try to fix it. For example, a judge can order a parent not to smoke in the home or car when the child is there. A judge might also require the parent to have no alcohol in the home, or go to counseling to address anger issues, depression, or other mental health concerns. A judge can require supervised visitation, depending on the family circumstances.
Do Judges Reward “Bad” Parents?
Bad behavior will not help the other parent’s case, but don’t expect the judge to say he or she blew it, and therefore, visitation is denied. Judges want children to have both parents if at all possible. For example, a parent who has not played an active role in a child’s life may return a few years later and persuade a judge to give him or her a second chance to gradually create some sort of relationship. This doesn’t mean a judge will give that parent custody, just the opportunity to see if a bond can be created or renewed. To the judge, the estranged parent isn’t being rewarded even though it feels like it. You will always be a parent and you will also be loved. But the judge’s goal is to see if the other parent can successfully play some role and give the child two parents.