Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
- - - - - - - - - -
Well, let's examine our client's (from the previous chapter: if you haven't read it, read the previous chapter right now Click here to read previous chapter) case: taking things at HIS version of events (before the other side steps in and kicks our ass), let's take a look at our case. This is what we want to present to the judge, this is our best shot. Here it is, our client's version, from just his interview, as related to the factors described in the child custody statute:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
Well, the ties between the father, our client, and his daughter don't seem that strong, do
they? He's calling her up, and giving her static about the money coming out of his pay
(what a guy), and other than that, he doesn't call her at all. It seems that the daughter
and the ex-wife have to leave messages for him at his mother's house. You'd think that the
fact that he's lying about his income would pop into this factor (how much does he love
his daughter, if he won't even help out with the marching band stuff?), but it doesn't
really fit right here. The mother, on the other hand, has worked in the child's school,
and even switched schools to the middle school, right when her child switched schools to
the middle school. As a guess, the mother is closer to the child, and on a day-to-day
basis, it's got to be pretty clear that the mother is closer emotionally, and probably has
the usual love and affection to go with it. Next factor.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
Well, our client could be said to have the capacity (in that he's got a good job), but he sure doesn't have the disposition to give the child anything, does he? He won't help out with the Art/Marching Band ("whatever it is"), connected with the 'educating' of the child, and there's no mention of his ever taking the child to church (which is not mandatory, by the way), and, did you notice? He won't even call the school to find out what's going on, he just won't do it. I won't fault the judge if he rules that the mother is better on this factor....
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this State in place of medical care, and other material needs.
This factor is the "money" factor: rich people can do more for their kids than poor people can (if they want to), and it's a fair thing to take note of it. It's certainly not the only thing, but it counts. Once. Does Mom have the "capacity" to provide for the child? Does she have the "disposition" to provide for the child? I'm worried that she doesn't have much in the bank, because she's spending every extra dime helping the child get into band, and all the other extras that our hero won't help with. Our hero, the client, on the other hand, lies about his job rather than have his child support set accurately, won't help with a damn thing, not even medical expenses, and there's no mention that he ever bought her school clothes, much less her winter boots. Yes, our client makes more money than mom does. No, he hasn't a chance of winning on this factor, unless he can somehow show that mom is even more miserly than he is. Not likely. And don't forget that he could pay that arrearage off at any time ("do you think I should?") but he hasn't yet, and likely won't, get around to doing it.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The child has lived with her mother for quite a while, and we've already got some idea about how the mom sacrifices for the child, but we can make the argument (over the laughter in the courtoom) that the child lives in an unsatisfactory environment, and should be moved into dad's place, over the motorcycle club. Dad has plans to move to a nice place, but that nice place he referred to doesn't actually exist yet, does it? Somehow I don't quite believe that dad's claim that mom has "a lot of men in and out of her life" is going to overcome this, but we can ask a few more questions, get a few more answers, and maybe develop this area...and then, somehow(?) convince the judge that we should move the child over the biker club, it would be very "satisfactory" to use the language of the statute itself. Mom's going to win this factor, isn't she?
(e) The permanence as a family unit, of the existing or proposed custodial home or homes.
This is where our hero gets to jump up and down, and yell about the fact that there's no "family" in the long term sense, where the child is now. He can't however, show that there is any "family" where he proposes that the child be moved to. "Since I remmaried, three years ago, and bought a house, and had another baby, I've settled down a lot. It's kind of boring, really, we're all at home every night, watching tv, playing charades, maybe have a little popcorn. But I'm worried that at my ex-wife's house, with the new boyfriends every month, and the constant stream of babysitters, because my ex- is always at one of her beauty pageants somewhere out of town, that my daughter is getting the wrong idea about things...." That's a very powerful argument, (in a different case entirely) on this factor. Our client (in this case), however, can't even come close, can he? Mom's probably at home every night. Well, tell me more about these "men". Can we really build our client up high enough to win on this factor? Not likely....
(f) The moral fitness of the parties involved.
We get to argue that mom's got too many men, but we also have to recognize that the other side is going to point out that our client is a tax/payroll cheat, who lies to Friend of the Court, and the judge himself (likely the same judge who's going to be deciding this case), rather than pay what everybody else has to pay for support, namely the amount specified in the child support guidelines. The judge will make some sort of decision related to "moral fitness", and who's going to be able to argue with that decision?
(g) The mental and physical health of the parties involved.
We haven't heard a thing about this, yet. Likely a tie, if the judge wants to assume that the parties are both sane, and physically healthy. Probably a tie, awarded to neither.
(h) The home, school, and community record of the child.
What is the child's record? Picked up for shoplifting? No? Well, then, is the child a ward of the court, perhaps been ruled uncontrollable? No? It's usually not the case, but if it is the case, then it's relevant here, in this factor.
"...Counsel, let's take a short look at the child's school record. Good? Oh, very good? And involved in band as well? Oh, it's not band, it's art? Then why was dad talking about band? Yes, I guess he doesn't pay attention. Tell me, what about this extra money for the art trip to the New York museums, that dad wouldn't help with. Mother let her take a part time job? Oh, Tuesday and Thursday only, at the children's hospital, so long as the grades remained A's and B's? Very nice, and I understand she earned her money for her trip, very nice. Oh, she still works there? Tuesdays only, so she can spend time on her art project? Oh, and she donates her time to the hospital, now that she doesn't need the money? Very nice. Anything else you lawyers want to tell me about this child's home, community, and school record, before I decide this case? Very well, let's move on, shall we?"
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
This is the factor that Dad could win on: sure he could. If the child is just to that age where she just plain hates her mother, and she's willing to say so, to the judge, we could actually win a factor. On this one. Maybe it will happen....
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
Well, we know that dad phones up and runs the mother down, calls mother a few choice names to the child, and it's likely we'll lose on this point. Judges like parents who recognise that children need to have the opposite parent portrayed in a positive light, needs to hear that the other parent is a wonderful person, who loves the child. When a parent doesn't follow through on this, it counts. Against him, or her. I'll tell you what I dont want to hear coming from that witness stand, not ever. I don't want to hear:
..."Are you nuts, Mr. Lawyer? I went to the bank to borrow the two thousand dollars to send her on her Art trip, to New York, and the bank turned me down. So I went to Father Cunningham, I didn't know where else to turn, after Harry turned me down, and Father Cunningham gave me the money to send her on that trip. Melinda never knew. I was so ashamed. But Father Cunningham said that there was a position open, on Sundays, to watch the babies in the day care during services, and it wasn't charity, it was just an advance against salary, and I took it, I took the money. Melinda went on her trip, and she had a great time, and that's that. So now I work in the day care at the church on Sundays, from ten until three, and that's why I leave Melinda alone for five hours each Sunday, but she's fourteen, she's old enough to be alone. But then, do you know what that bastard Harry did? He told Melinda "Yeah, your mother asked me for that money to send you on your trip." He never said he paid it, but Melinda assumed he did pay it, and she's been grateful to Harry ever since, and I haven't had the nerve to tell Melinda that her father lied to her. He didn't actually lie, but he never paid for that trip, he said 'no'. But I don't want Melinda to think her father's a liar, so I never said a thing. Melinda should think that her father's a great guy, so I never said anything. But he didn't come up with that money, Father Cunningham did. When I hear her telling her friends that her dad paid for that trip, I want to cry. But I've never corrected her, and I won't. She needs to love her dad. And I guess she does. But to answer your question, yes, it's true, I leave Melinda alone at home for a few hours each Sunday."
Take the obvious lesson from this.
(k) Domestic violence, regardless of whether the violence was directed against, or witnessed by the child.
This factor, also, hasn't been mentioned, and may be irrelevant to this case. I hope so. Persons who engage in domestic violence should lose a point, and they lose this one.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
This is the catch-all, but it isn't as all-encompassing as it sounds. If there is some issue, that the legislature couldn't actually predict, but the issue sounds like it could be important, the judge is authorized to throw that issue in right here. "My ex-husband is an Amway freak, he makes my daughter fill out lists, with the names of her friends and their parents." Or, perhaps "My ex-wife is a Moonie, and wants to take my daughter on a trip to Korea, for a seven-month retreat." The judge is allowed to examine this "extra" factor. And count it as one, on a list of twelve different factors that need to be evaluated.
Well, that's the lot. When an "example dad" comes in, and makes those noises, one might be tempted to say "Gee, that seems a little unfair, a little immature", it's really incorrect. The guy is still entitled to his hearing, and he's going to get it, if he insists. But the judge is going to follow the statute, going to evaluate "best interest of the child" as the law dictates. And when the judge does that, the "example dad" loses. Not because he's immature, or unfair (the statute does not allow the judge to ask "Is this guy out of his cotton-pickin' mind?" The statute says that the judge will determine the best interests of the child, period). Because the objective, dispassionate examination of the twelve factors yields a result. In this particular case, the result is something like "Mom 7, Dad 1, and two were ties." That means that the best interest of the child, as defined by the statute, as dictated by an examination of the twelve factors, says that the child is better off with Mom than with Dad. And that will be the ruling of the court. And should be.
Good luck with it.