Preparing for a Child Custody Trial

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Attorney Brad Tengler and Geoff Carter discuss how to prepare for a child custody trial,  including discovery, guardian ad litems, custodial evaluators, and how to present yourself in the courtroom.
August 27, 2013

Transcription:

Announcer:     Law Talk does not give legal advice, it is a source of information for people suffering the effects of divorce or who ended long-term relationships. If you need legal advice. Please retain an attorney in our own jurisdiction.

Brad:               Good Evening, folks. Welcome to Divorce Talk Radio. This is Attorney Brad Tengler, here in the studio with Geoff Carter.

Geoff:              How’s it going?

Brad:               Doing fantastic.

Geoff:              What is the great topic for this evening?

Brad:               Prepping for child custody trials.

Geoff:              You can prepare for that?

Brad:               You better prepare for it or you’re going to lose.

Geoff:              Okay, so what’s the first step? What’s something you suggest?

Brad:               First of all, rather self-interestedly, get an attorney. Really. You cannot if you have a serious custody trial in front of you and you do not have an attorney, you can’t do it.

Geoff:              What is an example of serious when you say that?

Brad:               Well, by seriously, I mean think about it. If people are fighting over who’s going to custody of their other kids. Mom, dad, both want custody. Any trial like that is serious. Someone’s going win, someone’s going to lose. Someone’s going to get custody, someone’s not going to get custody. Someone’s going to be able to spend 80% of their time around the kids, someone’s going to spend 20% of the time. Somebody’s going to be paying child support, someone not going to be paying child support. So, any child custody trial is serious.

Geoff:              Right.

Brad:               And if you are serious about it, you need to get an attorney because there are things that laypeople simply cannot know, cannot do in a courtroom that an attorney cannot obviously an attorney. Obviously, I’m an attorney and it’s self-interested for me to say that, but I mean it’s complicated.

Geoff:              Can I have a general question about an attorney?

Brad:               Sure.

Geoff:              How does that work now? For people who maybe don’t even have an attorney, never had an attorney, are there ones that can practice any type of thing? Or re there ones like specifically more geared toward like child cases, and divorce cases?

Brad:               Okay. No attorney in a sense, has a specialization.

Geoff:              Okay.

Brad:               With the exception say patent attorneys. In Illinois, it’s actually, we’re not allowed according to our ethical rules to advertise that we specialize in acts. We can’t use that word.

Geoff:              Okay.

Brad:               But, do people concentrate different areas, absolutely. I concentrate in family law. 80% of my practice is somehow family law-juvenile related something like that. But you spend a lot of time in a certain area law, you know it really well. You know the courtroom really well. You know the judges really well. All of those things combined and especially when it comes to custody trial, you’ve got to get an attorney.

The other reason outside of the knowledge that an attorney has both practical knowledge and legal knowledge is that this is going to be incredibly emotional for you. Some people handle it better than others. Some people are hitting their spouses or ex-spouses or ex-significant others, some are not. But it is emotional. The job of the other side is to bring out the bad things about the other party in order to win the custody trial.

Geoff:              True.

Brad:               You not allowed to misrepresent. But you need to bring out the bad things about the other party.

Geoff:              To make one of them look better than the other.

Brad:               To make one of them look better than the other, absolutely. If you are emotionally attached to the case, which if you are a party, if you are a parent, you are going to be emotionally attached the case, and it’s going to be very difficult for you to be objective and think clearly and strategically during trial.

Geoff:              What are some things…I’ve never been divorced or had children. So, I don’t know about this at all, but what are some of the things that maybe yourself as an attorney you would ask someone coming in saying I need representation for, to get custody of my kids during a divorce? What are something you would ask of them maybe?

Brad:               To do? To help me prep?

Geoff:              Right, exactly, to help you out on your side?

Brad:               Let’s me step back just a little bit. Before that happens, the very first thing you do is you send out discovery requests from the other side. So, you know what they are going to say at trial. And here’s another example of why getting an attorney is important, because there are very specific requests. You asked for something called 2-13 F witnesses, no laypersons knows what 2-13 F witness is. They don’t know 2-13 F1 witnesses, 2-13 F2 witnesses, 2-13 F3 witnesses. Nobody should know that stuff. Nor should they know that stuff. That’s unique to our area, not family law but, to civil procedures and to attorneys. But those are very important questions. Because if you don’t provide those answers to what you’re 2-13 witnesses [are 2-13], you can be barred from having anyone else testify.

Geoff:              Oh, no.

Brad:               If you don’t issue discovery, and you don’t ask people for what the other side for whether to testify about, then you’re going to be walking into that trial blind. Secondly, you are going to know . . . well basically you’re going to be walking into the trial blind, and you need to make sure that you answer discovery on the other side, so you don’t get barred from having your witnesses to be able to testify.

Geoff:              So, you are saying if you don’t disclose something, then your witnesses get we just called it barred, but they get eliminated then? Explain it. I’m sorry.

Brad:               Let’s say there’s nine months of being in court before a trial actually occurs.

Geoff:              Sure. That’s pretty normal. Everyone files their custody petitions and then people send out there discovery requests, meaning hey tell me what you’re going to testify to and you put it in writing and you ask for things like to 2-13 F witnesses, all that type of information, and that takes time to put all information together and respond to and received the responses from the other people.

There might be motions to compel, and then the certain point, the judge is going to have a cutoff date for discovery meeting. You can no longer after this date have any additional information you’re going to present at trial. Why judges do that? Because according to the law there’s not supposed be surprises at trial. Everything you’re supposed to know, you’re supposed to know what people are going to testify to, all of those things should be taken care of so that it helps you settle the case. Meaning judges are trying to get people to settle their custody cases before trials.

So if you don’t send out the discovery, if you don’t respond to the discovery, it can have serious implications at trial. So first thing you do is you sent out discovery and then, but I think you asked me what should clients do to prepare. They should tell you everything.

Geoff:              When you say everything. Like what?

Brad:              If they got a criminal background, or if their boyfriend or girlfriend does, or if someone who’s around their children has that, everything, every dirty detail.

Geoff:              DCFS cases and all that.

Brad:               DCFS cases and all that kind of stuff. If they do not disclose that to you. Your client lies to you about that, the only thing it does is hurt them because it’s going to come out at trial. It’s going to come out in the court.

Geoff:              Does that include financial stuff to then? Like debt?

Brad:               It can. If you’ve got a financial trial, but a custody trial doesn’t have to deal with money. It has implications for obviously child support. Whoever gets custody is going to get child support. But yeah, you what you want to know everything.  And you want to know what good witnesses you have. Like if there has been a DCFS investigation and it came back unfounded, you want to know that and you want to get those documents because you want those to be admitted at trial because it’s unfounded DCFS report, meaning that your guy’s okay or if the child is seeing a psychologist, you want to know who that psychologist is.

There are strict rules about disclosure in those situations, but oftentimes people waive their right for that information not to be disclosed but you want know what the psychologists, what the counselors are going to say. All of that information is very important.

Geoff:              Once you get all that information, you tell the you want the information. What’s the next part then, to prep?

Brad:               Well getting ready for the trial means that you got your witnesses together. And you’ve got to know what witnesses they’re going to have and then once that happens. Well, something else happens before that. A guardian ad litem gets involved.

Geoff:              Oh, right. We’ve talked about of this before.

Brad:               And guardian ad litems are attorneys who are appointed to represent the best interest of the child. And in cases they carry a lot of weigh because they will provide a recommendation to the court about who they think should get custody.

Geoff:              Now when that happens, are their two separate ones? Like one spouse and one for the other one? Or is it one guardian ad litem period that does both? Do you see what I’m saying? Because you saying [inaudible 09:50] is to make sure.

Brad:               There’s only one.

Geoff:              Okay.

Brad:               There’s one guardian ad litem who’s appointed to represent the best interest of the children.

Geoff:              Okay. I didn’t know if on both sides . . . okay. I got you.

Brad.               Yeah, no. Dad doesn’t have a guardian ad litem. Mom doesn’t have a guardian ad litem. There’s only one guardian ad litem.

Geoff:              [inaudible 10:03]

Brad:               No, that’s a good question, because a lot of times people . . . I mean even the word itself sounds odd to laypeople. What’s a guardian ad litem?

Geoff:              Right.

Brad:               But it’s simply a fancy word that means it’s an attorney who’s appointed to represent the best interest of the children to the court. And they will provide a recommendation about who should get custody or they will provide a recommendation on how visitation . . . what visitation should look like. They will provide those recommendations.

Geoff:              For an idea for somebody listening, how long does some like overall does that take for them to figure out for that side and to get all your witnesses and everything lined up?

Brad:               [inaudible 10:43].

Geoff:              Are you saying like a year?

Brad:               Sometimes. Sometimes it’s longer than that.

Geoff:              Wow. No kidding.

Brad:               I mean, I can imagine in our court system and having custody trials in six months but sometimes it’s a lot longer than that just because that’s a lot of information that needs to be gathered. Sometimes the attorneys of the parties are not pressing quickly for trial. But there’s a lot of information that needs to be gathered. It’s modification of custody is a big deal. It’s not something that happens overnight. People want to happen overnight. People especially want to happen overnight. When say they want to move out of state and take their children with them, but that’s a significant analysis the court has to do. But in terms of prepping, guardian ad litems are important for prepping. Because if you have to know what they’re going to say. If the guardian ad litem says that your client should not get custody, guess what, you’ve got a problem on your hands.

Geoff:              Yeah.

Brad:               Because they are perceived by the court to be disinterested. They are perceived by the court to be an attorney who is not biased and they’re trying their best to look out for the best interest of children. And the way to get around that is you can find ways to impeach the guardian ad litem, meaning well, maybe they didn’t talk to . . . they talked to witnesses, A, B, and C but they didn’t talk to D and E. You know what I mean?

Geoff:              Now one of the things you told me before, for those asking this, they also asked people like teachers or anybody involved at all, right? [inaudible 12:20] daycare also the guardian ad litem goes in to ask them also which parent is more active or maybe something they’ve seen or heard or something as well?

Brad:               Sure.

Geoff:              So they’re asking everybody questions.

Brad:               Yeah. Their job is to interview all witnesses and try to get a feel for child’s life and what other people are saying about child’s life and not just the parents. That’s their job. Absolutely. So, you got to know what the guardian ad litem is going to say because of they’re against your client, you’ve got to find ways to basically discredit them.

Geoff:              But, how do you know that though?

Brad:               They’ll give a report to the court before the trial.

Geoff:              Oh, they do.

Brad:               They’ll either give an oral report to the court or they’ll give a written report to the court or both and you take him aside and talk to them. I’m a guardian ad litem on cases too, and we talk to the other side. We write reports but that way the other side knows where you’re going with the case and they can know whether or not they’re going to impeach you.  And by impeach you, I mean simply call into question your analysis.

And there’s good ways of doing that and bad ways of doing that. The parties get emotional sometimes and say the guardian ad litem is lying and the guardian ad litem didn’t do this or you see they’re very mad. But that’s usually not. That is not the case 99.99% of time. They have a certain opinion for certain reasons and you got to call into question their reasons. So, for instance if the guardian ad litem has interviewed witnesses, A, B, and C, but not D, what if D is a social worker who’s been around the child . . .

Geoff:              Real key.

Brad:               . . . 24/7.

Geoff:              Right.

Brad:               Because they didn’t take that analysis into their own analysis, you might get a call into question their ability to provide a correct recommendation court. But that’s not saying, oh, they’re lying. That is saying you know what, they missed some things.

Geoff:              Right.

Brad:               And that’s going to be much more convincing to a judge when you have another professional who saying this is what I think should happen with this child. If the child should stay with mom because mom does all this stuff for them. Should stay with dad because dad does all this stuff.

Geoff:              Right.

Brad:               And in the guardian ad litem actually might reevaluate their own testimony if new information comes out. You’ve got to know all that stuff when you’re preparing for trial. You’ve got to know what the guardian ad litem is going to say. You got a know what witnesses the other people are going to have. You’ve got to know what witnesses you’re going to have. Also, what’s important, this often doesn’t happen a lot custody cases on because most people can’t afford it. But when people can’t afford it, they actually get a custodial evaluator.

Geoff:              I never heard of it yet.

Brad:               Yeah. It’s a professional who you will pay $5,000 to $15,000. And I’m sure in other cases it’s a lot more than that to do an evaluation of who should have custody. So that’s going to involve psychological evaluations. It’s going to be very, very, very invasive to your private life, but most people can’t afford that. That’s just tons of money on top of court fees.

Geoff:              [But you’ve seen using it at all]?

Brad:               Oh, absolutely. Yeah, absolutely. But it’s outrageously expensive. But if you have a guardian ad litem is not supporting your perspective, a custodial evaluator might be absolutely necessary.

Geoff:              Wow. Yeah, that’s definitely in-depth. I don’t know. It’s expensive, but if you really want your point across, and you the right one to get it, then it make sense completely.

Brad:               And if you make gobs of money, what’s $15,000 now? If someone make a quarter millions dollars a year and it’s about whether or not they’re going to get their kids . . .

Geoff:              Then it’s worth it.

Brad:               . . . they’re probably going to pay for it.

Geoff:              Yeah, definitely.

Brad:               But it’s a lot of money to do something like that. You’ve got to in all of your ducks in a row before trial by knowing what witnesses you’re going to have, knowing what the other party is going to have for their witnesses knowing what the guardian ad litem is going to say knowing whether or not then you need to get additional witnesses like a custodial evaluator if you’ve got the finances for that, or think of anyone else that you could bring in to testify.

Geoff:              When you say witnesses, do you know, and I automatically think of a murderer or something like that and we’re talking about divorce and custody. What would be an example? Is that like someone in the family, or like a neighbor, or anybody?

Brad:               I saw dad hit Johnny with a belt. The neighbor.

Geoff:              Oh, okay, anybody really.

Brad:               Sure. I mean if the neighbor lady, Mrs. Smith was outside in her backyard and sees little Johnny running out and dad runs after him with a belt. And you know that she can testify to that, you sure can have her at trial.

Geoff:              Right. Okay, yeah.

Brad:               You’re definitely going to have her at trial.

Geoff:              I see now how that worked, right. Okay.

Brad:               So, it’s now the day of trial. You got all your witnesses ready to go. You know what the guardian ad litem is going to say. You got additional witnesses and you’re sitting there ready to go. If you’re sitting there ready to go and if have not been in that situation before where you’ve got to produce evidence. You get to know the rules of evidence, you got to know what questions to ask, you got to know what witnesses want to go first, all different kinds of things. And that’s what makes it difficult if you’re not an attorney.

But what’s important at trial is the judge is weighing the credibility. The judge is weighing your responses to the questions and determining do you have an anger problem. People who get mad court, come on, the judge is going to take that into account if anger management has been one of the accusations against you.

Geoff:              Oh, sure.

Brad:               Absolutely. So you’ve got to know when you can ask leading questions, and what kind of questions you can. You got to know that when he puts on the stand, you can be argumentative. You got to know when you put someone on the stand that you can’t make statements, you’ve got to ask questions, so of all these things, you got to do when you’re at trial.

I would say the most important thing is this, thinking about any kind of trial, whether it’s a custody trial or whatever kind of trial it is, is what is the story. What is the story about why you should have custody. If it’s the story is well, that person had an affair and I’m mad at them. Well, then no. That’s not a reason someone should have custody. People can have affairs and be incredible parents, or they can not have affairs and be awful parents. You know they could be the most sure straight and narrow person but make really bad parenting decisions.

So you have to think about the story and what is going on between the parents and why you should be the person that has custody. And I’ll tell you that is very difficult to do when you are not an attorney. It’s very difficult to do when you’re a party because you’re too enmeshed.

Geoff:              Oh, right. We mentioned before you have to make sure you’re doing this for the  best for your children, not about who did who wrong and who’s maybe cheated or whatever [you guys] do about the children because that’s who is overall effective in the long run also.

Brad:               Well, I think that goes without saying. You’ve got two people who say they want custody. I think they both think I’m doing this because it’s best for my kid.

Geoff:              Sometimes.

Brad:               Obviously people who don’t want custody because they don’t want to pay child support.

Geoff:              Right.

Brad:               But it costs a lot of money to get up to the trial point just to be fighting about that.

Geoff:              Right.

Brad:               But usually I give people generally the benefit of the doubt. They usually think when they want custody it’s in best interest of the kid. But another thing too is if you have a history of psychological issues, that is probably going to come up and you’ve got to make sure that you are properly medicated and family litigation causes a lot of stress causes those kinds of issues to rise up.

But when you’re in trial what’s the story that you want the judge to hear? What’s the story? The story is, my ex-husband, he has always had, he loves his kids very much but he’s always have this anger problem and after having his anger problem is something that does not make him fit to be a custodial parent. I’m not saying that he doesn’t love his kids. But you’re the dad. Mom has always had a substance issue. She loves her children very much, but when it comes to her ability to put down the alcohol in order to make sure the daily things get done for the children. She can do it or her medication if she’s over medicating herself.

What’s the story? What’s the story that you want to be heard? What is going on in the case? What is the story and how then you bring out facts at trial that support that story? So if mom’s got the substance issue, having testimony about all those different times, or it affected her parenting, or affected her ability to function, or affected her around other children. Bringing out all those stories because then you come back to that in your closing argument, you come back to say this is why she can’t be a custodial parent?

Geoff:              I can see this at times being at times a long process when you think about it because some of these marriages are 5 to 30 something years so you have to go back real far thinking about different things that might . . . now okay, we’re different, now we’re separated. Why should I have him or her sole custodian and so I’m guessing you got to go way back and probably talk to family and because you know while you’re going through a divorce, you’re also forgetting everything else that maybe has happened and make sure you have all the evidence to back you up because this is a lot of history I would think to go through.

Brad:               [inaudible 23:20].

Geoff:              yeah.

Brad:               But the key thing is you have your story about what this case is about. You have this and you want to convey that to the judge and only way to convey that is to bring out the facts and then your closing argument you touch on all those facts charge. Judge, this is how the substance issue has affected her, continues to affect her, and makes her make bad parenting decisions.

On the flip side, this is how I have been taking the kids to their medical appointments, and taking their kids to cheat parent-teacher conferences. Some people say, oh I want custody. Then you talk to them and you ask them are you taking the kids to their medical appointments, or are you taking them to the parent-teacher conferences.

Who make sure that you get them up in the morning? And they can’t answer any of those questions, what are you going to get custody?

Geoff:              Right. You’re not ready.

Brad:               Custody means that you act custodial. Custodial means that you on a daily basis make sure your kids are taken care of. So you’ve got to bring out those facts to show why you should be the custodial parent. No offense to anger management problem. If mom says dad always . . . well bring out the facts. Here there was a police incident, here there was a punching of in the wall. This time it was around the kids. It’s this ongoing thing. Now dad loves his children very much.

And this is another key thing I think too about trial. You don’t necessarily have to make the person look 100% bad because a judge is probably not going to believe that unless they are 100% bad. There are people that are just awful. But that’s usually not life. You’ve got a mix. Like they do some good and they do some bad. So maybe dad loves his kids very much but he’s got this huge anger management problem. So you have to bring out all of that bad and you can concede some of [inaudible 25:17]. He does love his kids very much, but that doesn’t mean he should be the custodial parent.

Geoff:              Makes sense.

Brad:               So in a nutshell is a lot of work to prep for a custody trial, but you need to make sure that you do all those things, get your witnesses together and know what they’re going to say. Be honest. Lying, obviously in court it’s a crime, and it . . .

Geoff:              Makes it worse.

Brad:               It makes it worse because the truth does come out.

Geoff:              Okay. Well this is an interesting one for custody. If someone would like to contact you Brad for a lawyer or an attorney for representation, how would they do that?

Brad:               We are located at 515 North Court Street in Rockford, Illinois. We serve the Rockford area and the suburbs of Chicago. Our phone number is 815-997-5200.

Geoff:              And you’ve got a website.

Brad:               We’ve got a website too. Tenglerlaw.com.

Geoff:              Outstanding. Great. Well, I’m looking forward to next weeks whatever the topic is.

Brad:               Great, Geoff. Thanks so much.

Geoff:              All right. Thank You.

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