Getting Past Ugly: the book
Chapter 1

When you are making decisions that affect your children, each decision should start out with the Parenting Mantra.

  1. What are the essential facts?
  2. What is your goal?
  3. How do the facts and your goal affect your children?
  4. Will your actions accomplish your goal?

As you organize information to present to your lawyer, or the custody evaluator, or the judge, go through the Parenting Mantra in talking about the information that you believe is important and should be given to the custody evaluator or judge in order to make an informed decision.

Custody disputes do not need to be battles. The more you view the custody dispute as a battle, the more likely you are to view your children as potential casualties of war, and no parent reasonably wants that for their children. Rather, be as calm and as factual as possible so that good decisions can be made that will minimize damage to your children.

Chapter 2

your child. Once you realize you are not going to lose your relationship with your child, is it important that you have legal custody, so long as you are able to have a parenting plan to spend time with and parent your child?

There are several reasons why having custody might be important:

1. Who decides how the specific needs of your child will be met? If your child has specific needs that must be decided on a consistent basis, such as medical treatment, then it is important that one parent be the “bottom line” decision maker, and there may be strong differences of opinion between parents as to what decisions should be made.

2. Is one parent likely to move out of the area and want to take the child? It is difficult to have significant parenting time and to parent your child from long distance. If this is an issue, you need to have it clear which parent has legal custody, because it sets the legal standard that allows a parent and child to move.

Just because you get legal custody, however, does not mean that you will be allowed to move with the child. So not having custody doesn’t mean you don’t have options.

3. Does one parent have mental health or physical health issues which affect that parent’s ability to parent the child? The focus has got to be on what is best for the child. A parenting schedule or custody that is not in the child’s best interest should not be put in place just to be fair to the parents.

4. Has there been domestic violence between the parents, and does the domestic violence affect the ability to parent? Domestic violence between parents has a large impact on children. If domestic violence is present, that needs to be considered as to who the custodial parent should be.

5. Is there a strong difference of opinion as to custody and a parenting plan? Often, there are strong differences as to what the needs of the children are, and how those needs should be met. A neutral custody evaluator may give insight and information that is helpful to structuring a parenting plan that focuses on the children.

Chapter 3, Your Child

The first step in the custody evaluation process is deciding what kind of evaluator to hire, usually deciding between an evaluator who has a Masters in Social Work, or is a psychologist. The difference is whether psychological tests are administered. The most important consideration is whether the custody evaluator has the specialized training to do custody evaluations, not just general therapy training.

A custody evaluator is not the ultimate decision maker as to custody and the parenting plan, although custody evaluators’ recommendations are usually given a great deal of weight by the court. Custody evaluations usually start by having initial interviews with the parties, and then follow up interviews with the parents and the children. Some evaluators will come to the home and observe the family and interview the children in the home. After the interviews, if there is psychological testing, the testing will then be done. Then, the evaluator will talk to collateral sources, or people who can give information about the family or about each parent. Finally, the evaluator will prepare the report and give recommendations. If the parties do not settle, then the evaluator will appear in court and inform the judge as to the recommendations and facts behind the recommendations.

While most people are nervous about going through a custody evaluation, how information is organized and presented to the evaluator is important. It is helpful to have an outline of what you see to be the important issues and the important facts that you want the evaluator to hear. An outline makes sure that you don’t forget an important fact or story that you want the evaluator to take into consideration in coming to a recommendation. The most important point to remember is to listen to the question, answer the question and only the question, and tell the truth. Trying to guess what the evaluator wants to hear, or trying to put an overly positive spin on your response, usually ends up with inconsistencies that do not help your credibility.

What do I tell my child?

You need to find a balance between giving your child too little information, and making your child feel confused, and giving your child more information than the child can emotionally handle. You know your children better than anyone else, and know how much information your child should be given.

Children need to know what the process of a custody evaluation is going to be, so that they know what to expect when you go to the evaluator’s office, or when the evaluator comes to your home. If the evaluator comes to the home, the child needs to understand why this stranger wants to talk to them in their bedroom alone, which may seem rather strange. Let your child know that this is part of the process, and if it causes your child anxiety, talk to the evaluator about doing the interview in another location.

In an evaluation, your children will first be seen at the evaluator’s office with you, so that the evaluator can observe your interactions with the children. Depending upon the age of the child, the child may be interviewed separately from the parent. Children may express preferences as to who the child prefers to live with, or what kind of parenting schedule the child believes would work for them. The child needs to know that what they prefer will be listened to, but that ultimately the adults make the decisions as to custody and the parenting plan.

The evaluator will also be looking at your child’s academic performance, whether the child has been coached by one parent or both parents, and whether there is any evidence that one parent is attempting to alienate the child against the other parent.

Chapter 5

Being organized is critical in being prepared for meeting with an evaluator or going to court. Expect to give information about your personal history, including your childhood, your relationship history, employment history and medical history.

Be prepared to talk about substance use or abuse, and the history of problems in the marriage. Be prepared to talk about your own strengths and shortcomings as a parent, but also be prepared to carefully talk about the other parent’s strengths and shortcomings as a parent. If you have significant concerns about the other parent, those concerns need to be brought to the attention of the evaluator, but as emotionally neutral as you can manage. Most importantly, be prepared to talk about your children! You should know who their teachers are, how they are doing in school, their medical history and needs, as well as their personalities.

You need to have a general idea of what you believe would be a good parenting plan, given your particular children and their needs. You don’t need to have every detail set out, but you should know if your child can handle an overnight with the other parent in the middle of the school week, or whether the child’s learning disability will create any problems. Talk about who the caregiver will be, your work schedule and demands and school district schedules. Talk about introducing significant change into their lives, such as a new significant other.

A custody dispute or custody evaluation is complicated. It is not a process that you want to go through without the guidance of an attorney. A custody evaluation, in many ways, is similar to a court hearing without the formal court rules. You present the information, the “evidence”, and the evaluator (judge) analyzes the information and comes to a conclusion (court ruling).

However, your attorney will not be present when you meet with the evaluator. What your attorney does during a custody evaluation depends upon the style of the attorney, and your relationship with the attorney. Some attorneys use the custody evaluation as a litigation tool, and do not have any involvement until there is a result. This is more of a “hands-off” approach. Some attorneys play a more active role by going over the information that should be conveyed and talk about how to best communicate that information, as well as hearing from you and giving feedback about how your sessions with the evaluator were conducted. This is a “hands-on”  approach. Your attorney will never tell you what to say. It’s unethical and it doesn’t work. You run out of prepared speeches quickly, and end up with inconsistencies.

Your attorney will not directly talk to the evaluator during the process, unless it is about procedural and non-substantive issues. If the attorney does speak directly with the evaluator, it is usually in a conference with the other attorney. The facts and the result are often communicated to the attorneys prior to a report being released through a conference call.

After the report has been issued, the attorney becomes more involved, and may review the evaluator’s file, interview the evaluator if the evaluator is being called as a witness, and use the report as evidence presented to the court.

chapter 7

relevant to the evaluator or the judge in making a decision regarding the  parenting plan and custody. Sources may be people who have direct knowledge of the family, such as extended family, or close friends. It may be people who have direct knowledge of the child, such as a teacher, or soccer coach, or a doctor. It may also be someone who has information about your interactions with your child, such as a Scout leader. Finally, if it is relevant to the issues, it may be people who have knowledge of you, such as your friends, co-workers or religious leaders.

Collateral sources give information about you and your family, but also verify information that you have given the evaluator.

Be sure that you ask your collateral sources if they are willing to talk to the evaluator. Collateral sources should be your support system, and if they won’t talk to the evaluator or are hostile about you to the evaluator, this doesn’t support your case that you are presenting to the evaluator.

Be sure that you know with some degree of certainty what your collateral source is going to say. How you remember the particular incident that you are asking the collateral source to verify may not be the same way that the collateral source remembers it. Or the collateral source may not even remember the incident. This is not the same as telling the collateral source what to say. People need to tell the truth, in their own way, and not give a prepared speech.

Psychological testing

Taking psychological tests may be part of a custody evaluation, particularly if the evaluator is a psychologist. The most common test is the Minnesota Multiphasic Personality Inventory (MMPI), which may indicate a personality disorder or mental health issue, but which is not specifically designed for use in a custody evaluation.

Evaluators may choose to use other standardized tests as well, such as the ASPECT test or Personality Assessment Inventory. (PAI) The evaluator should either be trained to administer and interpret the tests, or have the tests administered and interpreted by someone who has the required training.

Evaluators may use the tests to rule out the possibility of a serious mental health condition, to confirm their own observations, or to ask further questions.

Evaluators will rarely if ever make a diagnosis from the tests, since a diagnosis is not necessary in the custody and parenting time recommendation. Evaluators may also be reluctant to directly state their conclusions as to mental health conditions because of a concern that a negative opinion could adversely affect someone’s parenting skills.

In taking standardized tests, people are often defensive. They want to present themselves in a positive manner because it is a custody evaluation. Answering questions in a defensive manner, or taking certain questions out of context, may lead to invalid test conclusions. The tests usually have “validity indicator” questions to determine whether the test results are invalid. Other than obvious questions that should be answered in the negative, such as whether you like to hurt and kill people, don’t try to second guess the questions, but answer the questions as truthfully as possible. Second guessing the questions may lead to an invalid test result which doesn’t give any information to the evaluator.

Personality

personality disorder, which is a mental health diagnosis, may be present in a high conflict custody dispute. Certain personality disorders can be called “high-conflict” personality disorders because the personality disorder results in behavior which creates and reacts to stressors in a manner that creates a great deal of conflict. A high- conflict personality disorder is more than the “normal” craziness that goes along with a custody dispute.

A high-conflict personality has the following enduring patterns of behavior:

  • They have chronic feelings of external distress
  • They believe that the cause of their distress is external
  • They behave inappropriately to relieve distress
  • The distress continues

They receive negative feedback about the behavior, which escalates the internal distress, but thinks the cause is external so continues to behave inappropriately.

There are four basic high-conflict personality disorder types:

  • Borderline—extreme mood swings, fears of abandonment, frequent anger and
  • manipulative behavior
  • Narcissistic—extreme preoccupation with the self, a distain for others, and a
  • preoccupation with being treated as superior
  • Antisocial—extreme disregard for the rules of society, little empathy, and a
  • willingness to hurt other people for personal gain
  • Histrionic—emotionally intense, similar to a Borderline, but often with less anger
  • and more drama, sometimes fabricating events but believes the fabrication

Because the basic personality is distorted, the high-conflict personality lacks insight into his or her own behavior, and the affect that the behavior has on the child. Differences in parenting styles are not perceived as differences, but as attacks on the person. In order to preserve his or her personal identity, a high-conflict personality may want to, not simply get custody and reasonable parenting time, but make sure that the other parent’s time and relationship with the child is eliminated or diminished.

If there is a personality disorder, you cannot change the person’s thinking. You can only change your reaction, and try to get  consequences for the person’s behavior.

Most importantly, recognize that you will be dealing with the conflict for a very long time. It will not end when the custody decision is made.

Sneaker issues

Sneaker issues are those issues which surprise you, and you didn’t see coming. The email that you wrote where you really vented your anger, that text message that was biting and unkind, the ticket for drunk driving that caused you to lose your license are all sneaker issues. Be prepared for these issues to come up, and consider whether you should bring up and deal with any of the issues and move on. If you are trying to bring up a sneaker issue on your spouse, make sure it is an actual issue.

Make sure you don’t create sneaker issues for yourself. If you keep a journal or diary, keep it in a location where your spouse and your children can’t find it and read it. When you do communicate with your spouse, keep the communications short and businesslike, and avoid angry name calling. Keep a journal of parenting time issues as they come up, so that you can refresh your memory as to dates, times and details. Look at your life with peripheral vision, always keeping in mind the actions you take and the words you say that will be examined during the custody dispute process.

The report will have both good facts and bad facts about both parents. Do not be traumatized by the bad facts and overly excited about the good facts. An evaluator may also use the report as an opportunity to have a mediation, so that the two parents can come to a settlement that each can live with, and that focuses on the needs of your child. The report may also be a settlement tool for you and your attorney to come to an agreement with your spouse and your spouse’s attorney. Judges rely heavily on custody evaluator’s opinions.

If the recommendation is for a parenting plan that you strongly feel is not in the best interests of your child, then you may have to challenge the recommendation to the judge, and explain why the evaluator “got it wrong.” Were the facts wrong?

Does the plan not adequately take into account your child’s needs? You will not be challenging the evaluator’s recommendation as much as presenting another viewpoint for the judge’s consideration.

Chapter 11 ~ The report and what to do with it

Once a custody evaluation is completed, the evaluator usually writes a report. The report summarizes who the evaluator talked to, what tests, if any, were performed, background on each parent, and what facts the evaluator felt were important in coming to a conclusion. Finally, the evaluator comes to a conclusion and makes a recommendation as to custody and a parenting plan.

The report will have both good facts and bad facts about both parents. Do not be traumatized by the bad facts and overly excited about the good facts. Make sure the important facts are correct. When you look at the recommendation, does it make sense?

The evaluator will probably tell you things far more directly than will be written in the report. Many evaluators talk to both attorneys in a conference call before the report is released to the clients, and the evaluator may be much more opinionated in person and in court than the report will show.

An evaluator may also use the report as an opportunity to have a mediation, so that the two parents can come to a settlement that each can live with, and that focuses on the needs of your child. The report may also be a settlement tool for you and your attorney to come to an agreement with your spouse and your spouse’s attorney. Judges rely heavily on custody evaluator’s opinions. The custody evaluator has spent much more time investigating the facts involving custody and parenting time than the court has time to hear and analyze. As a result, many cases are settled by accepting the evaluator’s recommendation, especially if the attorneys believe the judge will find the recommendation credible.

If the recommendation is for a parenting plan that you strongly feel is not in the best interests of your child, then you may have to challenge the recommendation to the judge, and explain why the evaluator “got it wrong.” Were the facts wrong?

Does the plan not adequately take into account your child’s needs? You will not be challenging the evaluator’s recommendation as much as presenting another viewpoint for the judge’s consideration.

Chapter 12 ~ What happens if I go to court?

understand what will happen procedurally when you go to court, you will be better able to make decisions. By the time you get to court, your attorney will have organized all the exhibits, written trial memoranda, interviewed witnesses, and prepared questions. The trial memorandum is submitted in advance to the judge, who has read it, and is familiar with the issues. At the beginning of a trial, the attorneys each make an opening statement, which tells the judge what the issues are, and what the evidence will be. The attorney for petitioner, or person who filed the petition for dissolution, will put on his or her case first. After each witness, the other lawyer gets an opportunity to ask the witness questions. This is called cross examination. Then the attorney for the respondent is able to call witnesses. The most important witnesses will probably be you, your spouse and the evaluator, although there may be other witnesses that fill in facts or talk about issues other than custody and parenting time. Finally, the attorneys make closing arguments to persuade the judge what outcome would be best.

Usually, judges have the attorneys go into the judge’s chambers to see if a settlement can be worked out without having to put on a formal court case. Judges will also give their initial impression of the facts and what decision they might be inclined to make if the facts are the same as what the lawyers say the facts will be. Despite the fact that this is all new to you, the judge has probably seen elements of your case many times before, and has a pretty good idea of what the range of “reasonable” outcomes should be. You are not given a great deal of time to think about the decisions you are being asked to make. There may be multiple variables in any given plan that you have to think about quickly and make a decision.

You should also be prepared that, after all of your preparation, your trial could be postponed because there was not a judge available to try the case, or there were three cases scheduled at the same time. Finally, the judge may issue a ruling that day, or the judge may decide to think about the facts and make a decision later.

When the decision, or ruling, is issued, the lawyers then write up the ruling into a judgment which is legally binding on the parties after it is signed.

Chapter 13 ~ Living with the decision

decision will be made, and you will go forward to organize and structure your life within the parenting plan.

Remain an active and loving parent. If you have custody, you will learn that this does not mean that you control all of the decisions for your children. If you don’t have custody, you will learn that this does not mean that you have lost control over making decisions for your children. Within your parenting time, you will make the decisions for your children, just as any parent does, and you will experience the day-to-day joys and frustrations in the same way that you did when both parents lived in the same house.

Accept that even if you don’t like the parenting plan, it is still a plan and has finality, at least until you and the other parent mutually agree to change the plan, or the court changes the plan. The parenting plan and the custody decision are not a moral judgment of who is right or wrong, or who is a good parent and who is a bad parent. Understand how your child feels and find strength to meet your child’s needs as she struggles to live with a plan that is not ideal for her either.

If your spouse is a high conflict personality, you must remember that a custody decision may not change their actions, and that the conflict may continue. The parenting time judgment may be violated, and you may need to return to court to adjust the parenting time or to seek consequences for violating what should be a final court decision. Pace yourself, because your children need as much stability as you can give them.

If at all possible, remain as flexible as you can. The divorce judgment does not cover every contingency, because the needs of your children change as they grow and as the circumstances of your life and your ex-spouse’s life change. If you are able to be flexible in agreeing to a change in schedule when your ex-spouse requests a change, your ex-spouse will hopefully repay that goodwill that you “banked” when you request a change. However, too much flexibility can create instability for your child. Try to evaluate the need for flexibility against the need for stability.

14 - Final thoughts: a way of life you can live with

As you have gone through your custody dispute, you have likely had moments when you have been angry, and wanted revenge on your spouse. You have wanted your spouse to be as frightened and hurt as you have been. You probably, secretly or not so secretly, wanted your children to love you more, to want to spend more time with you. Take a deep breath and let it go.

Living well is truly the best revenge. Focus on your relationship with your children. Don’t worry about your spouse’s relationship with your children, assuming that there is no legitimate cause for concern. Enjoy your time with your children, and enjoy the time that you now have to yourself. Care about the things in your life that really matter, and let the rest of the emotional baggage go.

Living well is a way of life you can live with. The final parenting plan and custody arrangement, however it was decided, and however it was structured, is final, at least until the needs of your children change. It is probably not what you ideally wanted, or even completely what you asked for, but hopefully it is a parenting plan that you can live with, and your children can live with.

You want to have that moment in your life when your child thanks you for being a parent who put the needs of your child ahead of your own needs, who worked things out with the other parent whenever possible, and made the child feel that both parents loved him or her. How you handle your custody dispute and parenting plan is what makes that happen.

Truly, this IS a way of life you can live with.

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Getting Past Ugly: the book

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