Protecting the Kids in Family Court Cases

There is ample documentation of the difficulty parents, and particularly mothers, encounter when they seek to protect their children from domestic violence or physical/sexual abuse in child custody cases.  However, there are some encouraging developments within the legal system upon which we can build when litigating these cases.  For example, with the help of attorneys from Justice for Children, the Hawaii Intermediate Court of Appeals issued a great decision in March 2009 which allows confrontation and cross-examination of mental health professionals and guardians ad litem who make custody recommendations.  The Tennessee Supreme Court revised the guardian ad litem rules to eliminate the vast power and large fees these attorneys previously enjoyed.  Then, in early June, the United States Supreme Court ruled that civil litigants have a constitutional right to impartial judges, and that campaign contributions, under circumstances, can force a judge to recuse himself. When parents are faced with these difficult and abusive situations, it is essential that early decisions and strategies be correctly thought out; it is much more difficult to undo a negative custody outcome than it is to prevent one.  Courts are historically designed to act as fact-finders, i.e. did this happen or did that happen.  This process is most important where there are questions of violence and abuse.  If the starting point does not determine whether the abuse occurred, the family court is likely to decide the child’s custody in an unsafe way.  Therefore, the protection of children in family courts begins and ends with careful and thorough litigation maximizing the court’s ability to accurately determine facts.  Because of this, it is vital that from the very early stages of the case, protective parents do the following:

• Rely only on attorneys, physicians, and mental health professionals with documented training and experience in domestic violence and child abuse cases.  General family court experience for lawyers, and general child custody and family therapy training for other professionals, is woefully insufficient for these cases.  Attorneys who represent the abusers should be avoided, as their experience with abuse cases is generally counterproductive. Look for attorneys who truly understand the constitution, the rules of evidence, and the mental health field, and who are willing to challenge the system when it is failing.  Stay away from lawyers who believe that the wise psychologist and the experienced guardian ad litemwill always make the right decisions and we just have to trust them.
• Object to any process where written reports are submitted by guardians ad litem, custody evaluators, or mental health professionals.  Insist that all rules of evidence be followed, and fight to keep bogus theories such as parental alienation syndrome, and the like, out of evidence.
• Always depose any professional who is going to have an impact on the case.
• Insist that any attorneys who purport to represent the best interest of the children, such as guardians ad litem, minor’s counsel, or law guardians, strictly comply with the American Bar Association’s 2003 Standards of Practice for Lawyers Representing Children in Custody Cases and any state rules with similar provisions.
• Never waive objections to unlawful procedures, and always argue that the court must decide the case based only on evidence properly admitted where your due process rights of notice and the opportunity for a fair hearing before an impartial judge are preserved.
• Never waive your right to appeal an adverse decision.
• Where children are old enough to testify about facts and events crucial to proving the abuse happened, their testimony should be presented in a way that minimizes stress to the child.  However, continued abuse is much worse than the trauma of testifying.
• Always use the testimony of fact witnesses who have a direct knowledge of the abusive events, the aftermath of the abuse, and the quality of the parenting.  Do not expect the experts to be sufficient.
• Never ask the court to require the accused abuser to submit to a polygraph, a psychosexual evaluation, or any other such evaluation.  These devices are incapable of determining if abuse occurred and this strategy will backfire.

The first step in protecting children is controlling the process by which their fate will be determined.  When the integrity of the process is maintained, the opportunity for the court to know and understand the facts is maximized.  Thus, an unbiased judge who considers only what is permissible should then apply the law correctly with optimal results ensuing.  While there are certainly no guarantees here, to ignore these guidelines will almost certainly invite disaster.