Choosing the Wrong Attorney: the Most Common Error in Handling Child Custody Disputes

CHOOSING THE WRONG ATTORNEY:

THE MOST COMMON ERROR IN HANDLING CHILD CUSTODY DISPUTES

by Barry Bricklin, Ph.D. and Gail Elliot, Ph.D.

Dr. Bricklin and Dr. Elliot are nationally-known child custody experts. They have written many publications offering help and guidance for mothers, fathers, and grandparents involved in child custody issues.  Their publications can be found at http://www.custodylibrary.com

 Maybe we make bad decisions because we want to work with people we know. Maybe we trust the recommendations of people we've trusted in the past. Whatever the reason, choosing the wrong attorney is the biggest mistake made by people in child custody conflicts. From getting an unfair child settlement outcome to unrealistic and often damaging child custody arrangements, choosing the right attorney to protect you and your loved one(s) is essential. This article will help you think through your choices and make suggestions for how to proceed, rather than simply and naively operating with blind trust in an area that can make so many people, including your children, so unhappy.

 Issues to Consider about the Attorney

 The attorney who will represent you in court can have a variety of characteristics, but we've found these two to be essential:

 How familiar he or she is with family law, including divorce, all marital property settlement issues, and especially is up to date on child custody issues. This would include knowledge of applicable custody statutes, all the case law that might relate to your issues and indeed is even up on the social science research on custody issues. In other words, your attorney must be a true expert in the issues and legal tactics that surround custody conflicts. The real power of a good attorney is not to be found in "style" or "presentation," but in what he or she knows.

 How much time he or she invests in preparing for all of the unfolding phases of a dispute - from the moment it starts, through all of the negotiations and up to a possible or actual court trial.

 Professional Affiliation

When books written on this subject tell people about how to find such a lawyer, they typically say to ask the local county Bar Association for a referral, or to ask among their friends. Such books often give a long list of questions to ask of a prospective attorney. While such practices are helpful, they are by no means sufficient in a complex case.

 We believe that it is wise to attempt to find an attorney who is a member of the American Academy of Matrimonial Lawyers. This professional group typically has the most well respected attorneys as its members. However, we have found two other "musts" that are part of the issue of finding the right attorney.

 Knowledge of Local Politics and Judges

The most important "must" is that the attorney you pick should be thoroughly familiar with the local politics in the court system in which your case will be heard and particularly enlightened as to the prejudices and beliefs systems of the judge in front of whom you may appear. The bottom line of any court case is that a particular judge is going to make a decision. In the family court system, judges have much more discretion to use personal 'judgement' than other judges who work on "criminal" proceedings.

 This family court judge, though supposedly mandated to follow certain case law and/or statutory guidelines, is in fact pretty much free to do what he or she pleases. There are relatively few procedural constraints on family court judges. This is particularly important because it is very difficult to appeal cases lost at the trial level in the family court system.

 This means it is essential for your attorney to know your judge, inside and out. That means knowing what he or she considers in deciding who is going to be the "better" parent, to what the judge will accept as permissible evidence, the types of evidence the judge happens to favor, and even knowing which mental health evaluators carry more weight in a particular judge's decision-making.

 Many kinds of evidence may be brought in front of a judge. There will be testimony from a parade of witnesses as well as the two competing main participants (the parents). There may be testimony from expert mental health witnesses. Some parents and attorneys bring videos and pictures before the judge, to convince him or her that their relation with the child is "best," or that their home environment is the better one. The expert might present psychological test data, or interview data, or observation data. It is critical that the attorney know which kind of evidence will be given the highest priority by the judge. In a survey we ran a few years ago, it became clear that most judges favor one kind of evidence over others. It is the favored evidence he or she will assign the highest truth value to, and be most influenced by.

 The attorney should also know whether or not a particular judge favors joint or sole custody. You need to know if you are going to have to overcome a very strong bias on the part of the judge. Judges will often decide what they want to decide, regardless of the statutory or case-law presumptions in your state. They will give the right legal names or labels to their decisions to make them sound like they are in accord with legal regulations, but the details of the plans will reflect their biases.

 Some judges will rarely change an existing visitation plan; others will. Some will split up siblings; others will not. Some are vindictive; they must not be challenged, even mildly. The "right" attorney will know these things.

 The next thing we found to be important is that in seeking the right attorney it may be important for you to go the extra mile and find one who has actually won cases in the custody arena on appeal. This is very difficult to do and usually will denote an attorney who is more thoroughly familiar with all of the legalities involved than other attorneys.

 Concerning the next-to-last point, if your attorney is otherwise an expert in child custody issues but is not totally familiar with the judge, before moving on to another attorney explore with the current attorney whether he or she has a plan to acquire that information. He or she could do this by a conference with several colleagues in the immediate area who have worked before the judge in question.

Other Concerns

There are a number of other issues that should be kept in mind when seeking the right attorney. These are a few for you to consider:

 There may be something very specific about the particular dispute in which you are involved. You might want to speak with someone who has dealt with that exact same issue before. This might involve perhaps one of the parents being engaged in a homosexual relationship, or there may be a lot of hidden money or other assets that should be considered, in which event you would want an attorney who has dealt with these same issues before. Always think in terms of what might be a special category of expertise that might be important for you to have.

You would certainly want somebody who has been active in family law or custody issues at least at a local county level, but even better, at a state or national level. The person may have written books or articles on the subject.

 You might be careful to see if the attorney, in telling you of his or her experience with other "satisfied clients," reveals so many details that you can tell who she or he is talking about. If this happens, the same thing might happen with you.

 You would certainly also want to be wary of any professional who makes extravagant claims.

 You would want someone who is very clear about the fee structure and you should know what the going rate is in your area, especially for the heavy hitters. This is really the only way to judge if you are being charged a fair price.

 You would certainly want someone who clearly answers your questions and is willing to offer even further explanations without making you feel like a nuisance if you are still in the dark. If you are just entering a child custody dispute, you would want an attorney who really tells you more than you have thought to ask, since the attorney should know that you do not really know all the questions that you ought to be asking.

 You might want to inquire how long it will take to resolve the particular matter, or at least get an estimate.

 A very important question is to ask about who will do the actual work, the lawyer or an associate; for example, a paralegal in training.

 You also want to know if other experts are going to be needed. This is especially important if there is some special matter in your case as mentioned previously. You might need a consultant who is an expert in some particular area, whether it involves homosexuality, or whether the dispute is not between two parents but between a parent and a grandparent, or if the case involves a lot of money, in which event you might want special financial consultants.

 Going the extra mile might involve going to your local court house to inspect open (currently ongoing) or closed (completed) cases. You might look to see whose names come up, and who is consistently successful.

 Dr. Bricklin and Dr. Elliot are nationally-known child custody experts. They have written many publications offering help and guidance for mothers, fathers, and grandparents involved in child custody issues.  Their publications can be found at http://www.custodylibrary.com

 About the Authors:

Dr. Barry Bricklin is a psychologist in private practice, Adjunct Associate Professor at Widener University and has previously served on the faculty of Jefferson University and of Hahnneman University. He is past president of the Philadelphia Society for Personality Assessment and the Philadelphia Society of Clinical Psychologists. He has authored books and articles many topics related to custody evaluations. For over 25 years, Dr. Bricklin has developed various data-based approaches to the decisions which must be made when parents divorce. He is the Chair of the Executive Operating Committee of the Professional Academy of Custody Evaluators (PACE).

 Dr. Gail Elliot is Head, Child Development and Family Processes Research, Bricklin Associates, the Vice Chair of the Professional Academy of Custody Evaluators and a psychologist in private practice. She has served as a consultant to public and private schools and coordinated multidisciplinary treatment plans. She has authored and researched numerous works related to custody evaluation. To learn more about the more than 200 custody publications they have developed for people struggling with custody battles, click here.