WINNING STRATEGIES FOR CUSTODY CASES Elizabeth Green Lindsey Davis, Matthews & Quigley, P.C.

Atlanta, Georgia Carol Walker Gainesville, Georgia

TABLE OF CONTENTS Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Establishing the Theory of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Clients Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Establishing Boundaries and Expectations . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. The Lawyer/Client Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The Nuts and Bolts of Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Interviewing Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Client Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. The Temporary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Strategies for Specific Bad Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Alcohol/Substance Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Sexual Abuse Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 2 3 4 4 5 6 6 6 7 9 10 11 12

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IV. Cross Examination of the Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 A. Brief overview of practical rules and the law regarding experts. . . . . . . . . . . . . .14 B. Applying the rules to the circumstances of your case . . . . . . . . . . . . . . . . . . . 15 C. Some commonly seen experts in custody matters and suggestions for areas for cross examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 V. Relocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 VI. How to Do the Impossible - Settle that Custody Case . . . . . . . . . . . . . . . . . . . . . . . . A. The Initial Interview and Beginning of the Case . . . . . . . . . . . . . . . . . . . . . . . . B. Preparation for Settlement Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Negotiating the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Post Settlement Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendices: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix A: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix B: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix C: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix D: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix E: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 23 26 28 31 33 33 34 36 37 39

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WINNING STRATEGIES FOR CUSTODY CASES INTRODUCTION Custody battles are the most emotionally, financially and physically demanding areas of family law litigation. They are more complex than any other litigation and hit the very core of a familys life. The pressure on the lawyer is intense and emotions are high. The only way to develop a winning strategy is to do the work and learn the facts. Because each side in a custody case will have flaws, the cases often become namecalling and mud slinging contest. A lawyer must be prepared to defend against a clients problem areas and to escape the other sides faults and flaws. The balance is tricky because the lawyer must present evidence, most of which tends to be negative and destructive, and yet convince the court that the best interests of the child are most promoted by awarding custody to one of the two (2) parties (and not DFACS). These materials will explore some of the important considerations in custody cases before the trial begins to develop a winning strategy for the custody case including establishing a theory of the case, and how to prepare a custody case. Also included are practice tips for the examination of experts and suggestions on how to settle a custody case.

I.

ESTABLISHING THE THEORY OF THE CASE. Bringing a consistent theme to a case and telling the clients story is paramount in

preparing a case for trial and in the trial of the case. Every case has at least one underlying theme which highlights the clients story and in the context of that story, even the clients weaknesses

are minimized. From the onset, start to establish the theme of the case. The theme should start to develop in the initial interview and with the clients history. A. History of the Case. In the initial meeting, have the client tell the story of the marriage and more importantly about the children and the parenting history. Specific questions need to be asked about the entire familys history and the relationships of all people involved, including the siblings, extended family, and other members of the household. Once the factual history is disclosed, the question of who would make the better parent begins to be answered. At this time, since the client will have told all of his good points and will have pointed out every bad fact of his or her spouse, it is imperative to have the client discuss his or her weaknesses. In that light, ask the client What are the worst things that your spouse could say about you? and What do you fear most about being asked by the other side? The client needs to understand that not only does the lawyer need to know everything about the case from his or her perspective, but also from the other sides perspective or no lawyer can adequately defend him. If the client fails to be truthful, the lawyer is at a serious disadvantage. In any event, take a clients story with a grain of salt until independent facts start verifying his or her position. B. The Clients motivation. Understanding the clients motivation in seeking custody will determine how serious he or she is about pursuing the case to the point of going to trial and whether any possibility of a settlement exist. A lawyer should elicit from his client why he believes his spouse is also seeking custody and is willing to go through this process. Do not be afraid to ask the hard questions in the initial conference. The questions will only get harder. A lawyer has a duty to discuss what 2

are proper motives and improper motives and should not be afraid to pass on a case where the litigant is not concerned about a childs best interests. C. Establishing boundaries and expectations. In all cases, but especially in custody cases, a lawyer must remain objective in analyzing his case and not become emotionally involved. Maintaining objectivity is critical to giving a client good advice. In a custody case, clients are demanding and have very high expectations and/or are extraordinarily emotional about the issue. Therefore, the lawyer must be open and honest with the client and explain all the risks involved in custody litigation. The client also needs to understand the limitations of the legal system and not hold on to an unrealistic view of his or her custody case. A lawyer does a major disservice in not being honest with a client concerning the custody given the facts. In addition, in establishing the boundaries, expenses need to be discussed with the client. The client needs to know up front that a custody case will be extremely expensive and may involve private investigators, a guardian ad litem, mental health professionals, depositions and several days of trial and trial preparation. The client needs to understand that they have a financial responsibility to pay you. A lawyer should not take the case on the expectation of getting paid by the other side. Further, the client needs to understand what the different types of custody are available joint, sole, and legal and physical and how a custody case progresses in the county in which it is filed. A client needs to understand how the process is started, what a temporary hearing is and what it may entail. The client needs to understand what affidavits and discovery are and what the

roles of a guardian ad litem, private investigators, psychological or psychiatric experts are in custody proceedings, what mediation is, what happens at trial and what happens after the trial. The client also needs to contemplate the effect of this litigation on the child, as well as his friends, relatives, neighbors, teachers and other people. In a custody case, all these people may be subject to depositions and investigations by the other side and it can be a long and grueling process. D. The lawyer/client relationship. In establishing the boundaries with the client it is important to understand what each parties role is in the litigation. A lawyer needs to evaluate whether a client will follow his or her advice in the initial interview. The lawyer is in charge of tactical and legal tactics. The client is in control of the objectives. However, in all cases, a lawyer should discuss what the impact of the evidence and testimony may be and to discuss with him the need to re-evaluate any decisions made initially in light of the evidence. E. Conduct. In the initial conference, the client should be advised of the importance of his or her conduct during the pendency of the case. The client must understand that everything he or she does between now and the time of trial will be scrutinized. The client should act as if a private investigator is following him or her and as if every telephone conversation were taped. All actions involving the child and its relationship with the other parent should be construed from the childs point of view. All actions should be viewed as springing from the childs best interest in an attempt to minimize the children in the conflict. Both parents, the one with the child and the one without the child, have significant issues to deal with. It is a lawyers responsibility to insure that 4

a client understands that the parents have certain affirmative obligations to the children and it is the clients job to make sure these things are being done. After the initial consultation, you should begin to develop a theory of your case. Look for themes that seem to flow and make sense, based on the good facts, but do not ignore the bad facts. The lawyer is not in charge of the facts - only the presentation of the facts. The Court will be looking at the childs best interest, not the clients best interest. Find a theme that fits and find the witnesses and facts to support it.

II A.

THE NUTS AND BOLTS OF PREPARING A CASE FOR LITIGATION. Interviewing Witnesses. Once a custody case starts, time is of the essence. Preparation begins immediately. After

the initial interview, begin interviewing witnesses. Look to the client for the names of people who know facts about the case, but do not depend solely on the clients accounts of what a witness will say. Attached as Appendix A is a list of potential witnesses who are third parties. This list of potential witnesses can help the client identify those persons helpful and hurtful to his or her case. Since judges universally state that the most credible and helpful witnesses are those witnesses who can give facts about the childs life and who are not related to the parties, prioritize them as your first choice. However, if a family member is all there is, then use them. When interviewing witnesses, the first thing that needs to be discussed with the witnesses is the necessity of telling the truth even if the answer hurts the party he wants to help. Never compromise with less than the truth and tell the witness not to hide from the truth. Second, make sure the witness tells you what he knows based on personal knowledge of the facts. The witness 5

should give specific facts to support what he says. Further, the witness needs to be advised to never guess or speculate and to always answer a direct question. Finally, establish from the witness something about his background. Attached as Appendix B is a list which sets forth areas of inquiry about parenting to discuss with and to help prepare a witness. Attached as Appendix C is a list of background information about a witness that you should know. These checklists will help prepare the witness to testify either by affidavit or live testimony. If the first interview of a witness is not in person, meet the witness in person to assess how he or she will come across to a judge. Also, try to get a written statement if possible, since witnesses memories can turn fuzzy. B. Documents. In addition to interviewing witnesses, interrogatories and request for production of documents are important. Certain documents that may be useful are: report cards, medical records, pictures, videos, tape recordings, letters between the spouses, letters between the spouse and the child, diaries of a party, calendars for the last several years, e-mail communications between the parties and/or a child, police reports and psychologists reports. In addition to document production request, consider subpoenaing the backup documentation in any psychologists or expert witness file upon which he based his report. That information is not privileged in the context of a custody case. C. Client Preparation. The client, of course, will have be the primary witness in any custody case. It is critical that the witness be thoroughly prepared to testify and even more thoroughly prepared for cross examination. In preparing the client, a list of topics are included on Appendix D which 6

will help the client think about and prepare for the custody case. The same topics should be covered at trial on direct examination. Developing these topics at trial will provide the Court with the understanding of who the primary parent has been and should be and what your clients position is. Be clear and direct on what your client wants. You should also cross-examine your client extensively before trial to help them be prepared for the worst questions possible. Helping your client know how to respond to the toughest questions goes a long way to giving him the confidence to testify with assurance and to present himself as competent and truthful. D. The Temporary Hearing. Any temporary custody hearing should be taken as extremely serious and should be prepared for in the same fashion as if it were the final trial, for as a practical matter it may be. Some judges will take a position at a final trial that the only real evidence they wish to consider is what has taken place since their determination at the temporary hearing. So therefore the playing field may not be level at the final trial. Thus, a temporary hearing is so significant, it must be considered carefully whether to ask for one or not. In theory, temporary hearings are supposed to be short and superficial hearings. However, if you have a contested custody case, you need to advise the court in advance that a significant amount of time will be necessary for the hearing. While affidavits are also admissible, you may need additional witnesses - more than the one allowed under the Uniform Superior Court Rules. Therefore, a lawyer should ask the Court to allow more than one additional live witness other than your client. Since the testimony of witnesses may be presented through affidavits and depositions, make sure the affidavits are in proper form. If you use affidavits, the rules of evidence are alive 7

and well and an affidavit must be drawn appropriately, without hearsay. An affidavit that is entirely conclusory or pure hearsay will not help your client and may be excluded by a proper objection. Affidavits must state facts, not just a witness conclusions. However, if the affidavit is from an expert, an expert can state his opinion concerning based upon certain facts. The foundation or the facts need to be set forth in the affidavit itself. The Affidavit must be filed twenty-four (24) hours before any hearing pursuant to the Uniform Superior Court Rules. Generally, attorneys wait until twenty-five (25) hours before any hearing to serve the affidavits, therefore the chances of counter affidavits is slim. It is difficult to ascertain the impact of the

affidavits on a judge at a temporary hearing. Many judges do not seem to pay close attention to the affidavits since the affidavits are not subject to cross examination and are frequently purely hearsay. However, they can be of good value when clearly set forth certain factual events which may be important and indicative of who is the better parent. Once the affidavits are in the record, you can use them in argument and point out the facts to the judge. When making a determination at the temporary hearing about witnesses to use either as live or testimony through affidavits, it is important to consider which witnesses will be most effective. Prioritize the witnesses in terms of who has the most information. As stated earlier, a psychologist, teachers, child care providers and neighbors who have significant information about which party has been doing the primary parenting are good witnesses. Generally these individuals do not have a relationship to either party and appear to be only concerned for the childs welfare. For any live witness, interview him in person before putting him on the stand.

At a temporary hearing, have a proposed custody and visitation plan and ask for it to be admitted into evidence. This will address any potential concerns about a parents willingness to facilitate access with the child and give the judge something concrete to review. Other considerations at a temporary hearing are guardians ad litem and experts. Most often guardians are not involved, if at all, until after the temporary hearing. Likewise, experts may not yet be available. The decision to ask for one needs to be discussed before the hearing with the client. During a temporary hearing do not hold back any evidence with the thought that it can be utilized at a later time. The temporary hearing must be treated as if it were the final trial, even though some evidence may not have been fully obtained and thorough investigations may not be complete. However, the best case and argument on behalf of the client must be presented. If it appears that the case will be an uphill battle, it is helpful to ask the Court to not render an immediate decision, but maintain the status quo that provides neither party an advantage at a later time in a custody case.

III.

STRATEGIES FOR SPECIFIC BAD FACTS.

The following are some thoughts on how to deal with difficult fact situations. These areas emphasize the importance of developing the theory of the case.

1.

Adultery. Sexual misconduct by either parent in a custody case can be a serious and devastating

issue. However, in and of itself adultery should not be the sole determinative factor over who should be the primary parent. To attack the issues of adultery, these are the following areas to consider developing. First, has the other spouse engaged in extramarital sex in the presence or under the same roof as the children? Second, can the adultery be used to show that the parent is a poor role model for the children? Third, consider asking if the adulterous spouse had unsafe sex. Fourth, explore in discovery whether the party was spending time and money with another paramour instead of with the children. Fifth, explore whether the adultery demonstrates an overall lack of commitment. Finally, explore whether it would work on your cross examination to ask the party whether it would choose a paramour over the children and, if so, is that spouse unwilling to sacrifice for the children. If you are representing the adulterous spouse, consider whether any of the following themes fit your case. First, emphasize that there are two (2) relationships being evaluated - the husband/wife relationship and a parent/child relationship. They are not the same relationship. A person can be a great parent and a bad spouse. Second, explore whether the motivation of the other spouse is revenge on the adulterous spouse. Third, did the other spouse contribute to the adultery by his or her conduct towards the other spouse, such as lack of affection, attention, love and verbal and/or emotional abuse. Fourth, consider whether the paramour is helpful to the case. In some instances, a paramour is the most stable party involved with the children compared to the parents, so it may be in the childrens best interest to keep the paramour there. A word of 10

caution, do not use this theory unless it is supported by expert testimony. Finally, if the children are unaware and uninvolved in the adulterous affair and they are not harmed by it, then it should have no affect on custody. 2. Alcohol/Substance Abuse. Alcohol and substance abuse and/or drug experimentation needs to be looked at in context of time. If the time for experimenting with drugs in college or alcohol in the past is so remote, it may not be relevant to the issue of custody. For instance, if it occurred before the marriage and/or before the children were born, and the other spouse never complained about it before the custody trial, then it is really not probative. If the other side is complaining of alcohol or substance abuse, learn through discovery whether he or she ever urged counseling or any type of treatment, or whether the other spouse also experimented with drugs or alcohol. In the initial interview, if allegations of abuse are clear, consider having the client tested for substance and alcohol abuse. However, do not agree to spontaneous drug testing unless the client is positively clean. Having a clean bill of health during the litigation and agreeing to random testing can greatly defuse the situation. If there are allegations of a drinking problem, the client should not drink at all, but especially not in the presence of the children during litigation. If there is a problem with addiction, educate the trier of fact as to the element of disease involved in alcoholism or drug addiction. Do not attempt to hide the fact that a party is recovering alcohol or substance abuser. Instead use it as a positive. Demonstrate that the client is in counseling or a drug treatment plan and utilize expert testimony. Be prepared to talk about after care plans. Also look for witnesses who knew the party before and after the treatment for alcohol. 11

To present a client with substance and alcohol abuse issues as positively as possible, it is important not to ignore the devastating effects of substance and alcohol abuse on the family, and it is imperative to deal with the recovery program and plans to prevent relapse. Have the client testify in detail about his treatment program and his after care program, including any periods in halfway houses. The client should testify about the support and assistance from family members and friends during treatment and recovery. The client should also understand the harm he has caused, and articulate his regret and sorrow. Have the client testify to his attempts to make amends with family and friends for that harm. The client should present to the court the positive impact of the treatment and recovery on the client. Since relapse is always an issue, present evidence on the clients strategy for failure, such as changes in the clients behavior and life and present evidence on the ways in which the client has learned to cope with the problems of life, especially those that arise in parenthood. Outline to the court the available support systems to the client through family, friends and therapists and aftercare groups. Bring to the courts attention the clients relationship with his sponsor, and the frequency of contact with the sponsor and attendance at AA meetings. The client must stay sober during the litigation. At trial, he must be committed to remain sober one day at a time. Finally, present evidence that the clients parenting skills have improved as well as his or her relationship with his or her children. Many times the issue of alcohol and substance abuse involves the primary care giver and psychological parent. Addressing the issue and being open about it goes a long way to bring credibility and assurances to the court.

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3.

Sexual abuse issues. Clearly the hardest claim to prove or disprove are allegations of sexual abuse. In any such

situation, whether supporting or defending against the allegation, a lawyer needs to explore the nature and extent of the allegation and collect evidence as quickly as possible. Before making such an allegation on behalf of a client, the lawyer should have the party seek independent expert opinion and consider having the client take a polygraph on the veracity of these claims. In any event, the analysis for the lawyers on both sides must include whether the spouse making the allegation was trying to punish the other spouse, trying to harm the others reputation or trying to take an unfair advantage because he or she knows the allegation is difficult to prove. Also, the lawyer must analyze whether the child made the allegation because of an underlying psychological or emotional problem. Certainly, any physical and/or medical evidence must be reviewed. If you are representing the accused, a polygraph examination and a psychological evaluation may be extremely helpful. Because these are criminal aspects, immediately obtain expert criminal attorneys to coordinate the defense and to insure that the client does not inadvertently harm himself in a criminal case. Finally, handling the psychologist will be critical as he or she is the only credible witness. The psychologist can analyze the childs description of the events which may be indicative of false allegations. For example, children who report a claim of abuse easily without prompting and enthusiastically may not be telling the truth. True reports tend to include mood disturbance while talking about the incidents, as well as sadness, anger or acting out. Also, a childs word choice may be indicative of truth as well. 13

IV. A.

CROSS EXAMINATION OF THE EXPERT WITNESS. Brief overview of practical rules and the law regarding experts. The first and most important maxim of cross examination of the expert witness is for the

lawyer to remember that the expert probably knows much, much more about the subject matter about which they are testifying than the lawyer will ever know. Do not make the assumption that you can learn more than the expert witness about their field of endeavor, for this is a recipe for disaster on cross-examination. Irving Younger, in one of his many treatises about litigation, spoke of three qualities for a successful cross examiner: experience, talent and preparation. While he observed that most lawyers lack talent, he stated that it is within the abilities of most lawyers to acquire experience and technical mastery through preparation. "With these first and third qualities, he can be a reasonably competent cross-examiner, and to be a reasonably competent cross-examiner is to be one lawyer out of ten thousand."1 To refresh your recollection, Irvin Younger's Ten Commandments for Examination follow here: 1. 2. 3. 4. 5. 6. Be brief. Ask short questions; use plain words. Always ask leading questions. Don't ask a question the answer to which you do not know in advance. Listen to the witness's answers. Don't quarrel with the witness.

Younger, A Letter in Which Cicero Lays Down the Ten Commandments of Cross Examination, LITIGATION, Winter 1977, at 18. 14

7. 8. 9. 10.

Don't allow the witness to repeat his direct testimony. Don't permit the witness to explain his answers. Don't ask the one question too many. Save the ultimate point of your cross for summation.2

In other words, control your witness and the courtroom. The opinion of experts on any question of science, skill, trade or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. O.C.G.A. 24-9-67. Lay witnesses, however, may state their opinion only when it is based upon their own observations, and a lay opinion is admissible only when it is necessary in order for the witness to convey these same opinions to the jury. Johnson v. Knebel, 267 Ga. 853, 855 (1997). You should read this case to review the court's fine analysis of expert witness opinion testimony, lay witness opinion testimony, and to learn how to distinguish when you might have an expert witness attempting to give opinion testimony on matters outside the scope of their expertise when they have no personal knowledge of the underlying facts. "This can be achieved by carefully evaluating the admissibility of each type of opinion testimony under the standard applicable to it, and taking measures to ensure that the jury understands which portion of the expert's testimony is given as an expert witness and which is given as a lay witness." Johnson, supra.. B. Applying the rules to the circumstances of your case. Know your case before you open your mouth. Don't give the expert a chance to repeat their direct testimony, probably reinforcing what might have only been moderately effective testimony the first time around. If you don't know anything about the field in which the expert is
2

Younger, supra note 1, at 19-20. 15

testifying, don't shoot in the dark, hoping to hit the target, for it is likely the expert will wallop you instead. If you know your case, you should know the few really important matters that you want to bring out. Keep your risk down by asking only a few questions, avoiding the temptation to ask that one question too many. If you think you have only ten points to make, try to pare it down to five before you begin. You run a smaller risk of asking that one question too many. You can also control the witness better by keeping the tempo of the examination going, rather than allowing the expert the chance to open her mouth and expound in an eloquent manner why her opinion is correct. How may of us have seen a lawyer looking down and fumbling with his notes for the next question while the expert gratuitously guts our client in the ensuing pause? Don't let this happen. You must also decide whether you want to question the expert about evidence which might refute the facts upon which they based their opinion, or whether you want to wait to present the refuting evidence in your case in chief. Many of us are so eager to mix it up with the expert that we fail to consider that strong refuting evidence with strong argument about the expert's lack of preparation or knowledge of the true facts may be a much safer strategy. You don't give the witness the chance to explain away the problem. You might decide if you have a strong expert of your own, especially in the psychological area, that you won't cross the witness at all. If your expert is every bit as independent and unbiased as the opposing side's, this may be the wiser course of action than cross examination. If you decide to contradict the facts which are the basis for the expert's opinion, make sure you can prove clearly and strongly the facts that you inquire about. Ask the witness about facts that they are unaware of which you know you can prove, and ask whether those newly learned 16

facts would change the expert's opinion. Ask the expert whether they knew about the facts and if they did not make sufficient inquiry in their investigation, make sure you find out who they talked to and who they did not talk to.3 If they did not follow up on something, make sure you point that out. Focus on your client's strong points and the other party's weak points. Require the witness to defend their opinion. If you think the expert has based their opinion upon few if any facts, explore each and every fact which they did not consider. The more confrontational you become with the expert, the greater the risk of damage to your client. You may question the witness about bias, but make sure you don't give them the opportunity to explain it away. You may ask about testimony in other cases or testimony for opposing counsel, but make sure that you know the answer that the expert is going to give before you ask the question. Only if the witness has a real bias that can be shown should you get into this area. Although the issue of credentials usually comes up on the issue of the qualification of the expert, you may choose to explore that issue more fully on cross. Make sure you pick one or two points that you think are important, such as lack of experience in this particular field, youth or inexperience of the witness, or lack of background training in the area. Once again, do not give the witness the opportunity to explain. Hit the point and move on. Listen to the witness and pay attention to what is actually said. If you are not scoring points and supporting your theory of the case, you may better serve your client by sitting down and allowing the case to move on. This may also get into the issue of bias. You might have the rare expert who has never spoken with your clients relatives, friends, or coworkers, and who has based their entire opinion upon one sides version of the facts. 17
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C.

Some commonly seen experts in custody matters and suggestions for areas for cross

examination. 1. Psychologists You may have a psychologist or mental health professional as a court-appointed witness, a hired witness by one party, or as a witness who has treated the children or the parents. Before you even begin, make sure that you have seen the underlying documents and tests that the expert utilized in formulating their opinion. Make sure that you have a good and thorough understanding about testing, how it works, and where the weak spots are. Read treatises about psychological tests and understand the terminology and the testing4. Understand the different diagnoses in DSM-IV. Understand the MMPI-2. Some common areas for cross examination: Validity scales on the MMPI-2, how they were scored and how the results were

interpreted Other tests performed and the validity of those tests (some of the tests used by

psychologists have never really been validated) Facts which the expert is not aware of, either because of the lack of attention to

detail in the investigation and analysis of the case or because the expert did not have the insight to find out about the parties beyond the tests Areas of treatment of the client and area of expertise of the expert - do they match?

One such useful text is Psychological Experts in Divorce, Personal Injury and Other Civil Actions, Second Edition, Marc J. Ackerman, Ph.D. and Andrew W. Kane, Ph.D., Wiley Law Publications, 1993. 18

Bias - do they often testify for the other side? Do they always say that mothers

should have primary custody of the children? Does their opinion flow logically from the facts presented or is it a stretch? Could

there be just as logical opposite opinion? Have they testified to what is in the best psychological interest of the child or just

the best interest? The American Psychological Association has promulgated guidelines for child custody evaluations in divorce proceedings, which only allows the psychologist to assess the best psychological interest of the child - anything more is in derogation of the guidelines. If the witness has not followed the guidelines in their assessment. One action that you might want to consider, if you have the financial resources in the case, is to hire an expert of your own to review and evaluate the opinion of the expert, especially if the expert is a court-appointed neutral. You may not call your expert, but he may give you great ideas about the short, succinct and to the point ways to minimize or discredit the opinion of the expert. You may also want to speak with other lawyers who have had this expert before to determine their experiences upon cross examination, with this witness. 2. DFCAS workers Outside metropolitan Atlanta, many judges are still using the home study of the Department of Family and Children's Services to gather information about the parenting skills of the parties and make a recommendation of custody. Some ripe areas for cross examination are: time (or lack thereof) spent on this case total caseload of the worker 19

3.

training of the worker whether the worker relied upon hearsay worker's personal belief worker's bias methodology used in formulating opinion persons they did not talk to Guardians ad litem While many times not an expert as such, they are often allowed to state an opinion or

recommendation to the judge about the children. If you have a guardian who is always appointed by that particular judge, be careful. The judge and the GAL may have a relationship which is longstanding and tight. You may want to tread lightly if that is the case. Some areas for cross examination are as follows: credentials of the guardian ad litem special training on issues of child development, if any bias if known, personal experiences and relationships with their own children (or lack of

children) failure to fully interview all persons who have knowledge of facts which refute the

opinion of the expert. Conclusion In short, your client's case is rarely won on cross examination of the expert, but upon a presentation of facts which will allow that judge to make the determination that it is in the child's 20

best interest to be with your client. Discrediting an expert or guiding the expert to concessions towards your theory of the case may help to obtain the result you seek. Poor cross examination may harm your case. Be prepared, be succinct, and know what your goal is before you commence, or you will repent at your leisure.

V.

RELOCATION.

Relocation is perhaps the most difficult issue in a custody case. In the past, relocation did not become an issue until there is an issue of modification. And pursuant to Georgia law as it presently exists, relocation is not a sufficient grounds to modify custody. Therefore in the initial custody case, relocation should be an issue that is negotiated and litigated in the right cases. As established in Carr v. Carr, 207 Ga. App. 611 (1993), a self-executing change of custody in a Settlement Agreement was upheld. In that case, the parents shared custody, but the mother was primary custodian. The Agreement provided that if either parent moved, the non-moving parent should become the primary custodian. Many practitioners are beginning to include language in Settlement Agreements to deal with the issue of relocation. In some cases, the agreements provide that it will be treated between the parties as a change of circumstances sufficient to warrant a change in custody based on the best interest of the child, not whether there has been a material change of circumstance which adversely effects the child. Therefore, the parties are attempting to redefine Georgia statutes contractually. Whether or not these provisions will be enforced is unknown. Examples of relocation provisions that have been negotiated are included for consideration in Appendix E.

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In the litigation context, some trial courts are addressing the relocation issue as a basis for modifying custody cases. While reversed, the case of In the Interest of R.R., 222 Ga. App. 301 (1996), the trial court found that the removal of a child and the destruction of the mothers relationship with the child caused by the removal was a grounds for joint custody. The Court of Appeals reversed, but this case demonstrates the problems trial courts are having with relocation. Clearly, if relocation is taking place during the custody case it is an issue that needs to be dealt with up front and with the assistance of experts or experienced people to help the parties deal with long distance custody relationships and the additional expenses and burdens associated therewith. Because this issue is one that is becoming more prevalent, consider how it impacts your case and what success you will have in making some arguments and provisions for relocation in the trial of the case. It is possible that you would want to get a commitment from the parties that they have no intention of moving and/or would not take the child away from the other parent. Certainly, it is grounds to ask questions about the importance that both parents place on the availability and access to the child. On the other hand, the party who may want to leave the option of relocation open has the arguments of the enhanced economic opportunity, improved physical environment and whether they are closer to the network of family, friends and the health concerns. While there is no definitive answer, relocation should be considered. If it is resolved, it may be possible to avoid future litigation in a modification hearing.

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VI.

HOW TO DO THE IMPOSSIBLE - SETTLE THAT CUSTODY CASE. How many times have we been at the initial consultation with our very upset client when

we are told I want full custody of my child(ren) and I dont care what it takes? How many of us have difficulty settling what, probably next to adulterous conduct on the part of one of the parties, is the single most inflammatory issue in a divorce case? How do we exert influence over our clients to guide them to make the right choices, if they possibly can do so? A. The Initial Interview And Beginning of The Case. When the client comes for the first interview, get them to talk about their children. Ask them to describe the children. See how much detail you receive about the children and assess the clients demeanor while talking about the children. Ask the client who the child(ren)s pediatrician is, who their coaches are for their sports activities, who their teacher is this year, was last year and the year before. Get some sense of the extent of the involvement of the parent. Ask the client what type of custodial arrangements are important to them. Ask whether there have been conflicts in the past between the parents concerning major decisions about the child. Ask them if they ever fight with the other parent about the children and, if so, ask what the fights are about. Ask if they have discussed with the other parent custodial arrangements, and, if so, what the nature and extent of the discussions have been. If the clients have reached an informal arrangement prior to the interview, ask them if they are satisfied with the arrangement, or, if not, how they would like to change it. Define for the client what the differences are between physical and legal custody. Find out if there is common ground on decision making on issues between the parents. Find out if one

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parent has traditionally made the decisions about medical care, education matters, etc. Ask the client if they trust the other parent to make a good decision about these issues. Ask your client if there spouse has good as well as bad qualities, and, if so, what they are. See if your client concedes that, even if he hates the other parent, the children do not. This is your chance from the outset to set the groundwork for settlement. If you practice in a jurisdiction where cases are assigned alphabetically or you have a family court, you will probably know who your judge will be. All of us know that certain judges have a tendency to make similar decisions with particular fact patterns. If, for example, you have a judge who is likely to award a joint custody arrangement or extended visitation, let your client know up front that, barring extraordinary circumstances, that is what is likely to be the result. The same is true if you have a judge who is likely to grant only one parent (usually the female parent) primary physical custody of young children. You must begin to bring the client to realistic expectations, if their expectations are unrealistic. While I am not suggesting that you abrogate your role as an advocate, let the client know what his or her chances might be. Taking this action now may allow your client to perceive a win through settlement down the road. After you have done this, you will have a sense of the client, whether their goals are realistic, and you will be able to better focus on the issues which really are issues. At that point, it is a good idea to begin to gather information about the facts which underlie the case because custody cases are won (and lost) on the facts. Have your client write a narrative which sets forth a week in the life of the child(ren). I have found that a day in the life of the child(ren) is not enough to have a good picture of which parent is actually doing the bulk of the child-rearing. 24

Have your client set out a list of any special times which would be important to him or her. For example, I have had clients who always have a family reunion on a certain weekend in June and clients whose family always celebrated Thanksgiving the Sunday before Thanksgiving because they were in the restaurant business and that was one of their busiest weekends of the year. Some families traditionally celebrate Christmas on Christmas Eve and some on Christmas Day. Will the client have to travel to spend holidays with their family? Ask if there are any impediments to physical custody arrangements such as armed services reserve duty or odd work schedules (i.e. police officers, firefighters). On that same list, ask the client to identify whether the other parent has any special time which would be important to them. To settle a case, if you can identify the things that are important to the other side and they do not materially affect your clients position, these items make great give-aways in negotiation. They give you room to move your position while at the same time providing a concession which shows (a) that your client is not such a bad person after all, since he has thought about things that might be important to the other side and (b) they probably cost very little in terms of actual physical time with the children. Have your client set forth a list of witnesses who have had the opportunity to view the client with the child. The client should include on the list the name, telephone numbers and addresses of the persons named, and a narrative of what each witness has knowledge of. When you receive it, look at the content of the list - does it include members of both sexes? If it does not, this might indicate that the witnesses listed might have an agenda regarding custodial matters (e.g. spurned mothers or vengeful fathers) Look at the list to see how many of the names are family members. Look at the list for what your client says these people will say about him or her. 25

B.

Preparation For Settlement Negotiations. It is amazing that there are the number of lawyers who come to a mediation session or

negotiation session without any well-reasoned plan for negotiation of the case. A well planned strategy often can make a difference between success and failure Know your case. Know what each of those witnesses is going to say about your client, the spouse and the child(ren), not based upon what the client has told you but based upon what the witness has himself told you. Know how strong each of those witnesses is. Identify your own witnesses, persons that you might learn of through interviews with other witnesses. Know what the psychologist, counselor, teacher, guardian ad litem, and day care provider are going to say about your client and the other party. Dont forget, the teacher probably spends more time with the child during the week while the child is awake than either of the parents. Know whether the child(ren) have had any problems since the divorce started. You may have taken the deposition of the other spouse.5 You should have asked questions about their position on custody, their difficulties with the other parent while parenting together, and what problems they anticipate might arise in the future. Assess what areas you think might be ripe for settlement. Assess what issues are going to be contested, and try to discern why. Assess the other party as a witness, and assess your client when your clients deposition is taken.

My mentor in domestic relations practice once told me that he never tried a case with a seriously contested custody component without deposing the other side just so he could see them and assess their demeanor. Your client may present the other side as a devil and you may find out when you see the spouse that your clients assessment is far from reality. 26

After you have done these things, you should meet with the client and discuss a settlement strategy. By now, you should have discussed with your client again the judge and his or her particular quirks, reviewed the facts which you have been able to gather, and articulated to the client the strong and weak points in the case. Dont be afraid to be a little hard on your client to test his reality. You should be able to readily state to the client what you think is his best chance at trial and what you think is his worst chance at trial. You should stress to the client the fact that, if she litigates custody, she and her spouse will never be able to sit in the same church pew when their child(ren) marry. You should be able to explain to the client that a settlement may achieve the closest thing to a win-win, especially for the children. After you have done this, you should prepare a settlement strategy in concert with the client, using the following components:

Identify the goals your client wishes to achieve. Ask your client to rate those goals

in descending order of importance. For example, is it more important that there is an element in the agreement that the other parent will not move away more than a specified distance from the present location without triggering an automatic change in custody or that your client have Sunday evenings with the child(ren)? Make your client think about what is really important to them and make them articulate why it is important. You may be able to use the reasons articulated at the settlement negotiation.

Identify areas that you think both parties can agree to. Review with your client

those areas they have been able to agree on.

Identify an initial position with specificity.

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Identify issues, as noted above, that you can concede without materially affecting

your clients most important goals. Identify giveaways that you can use as incentives to reach an agreement. If you can identify something which is really important to the other side that is of little consequence to your client, use it to close the deal.

Identify areas in which your client may have to give in order to resolve the case, and

review those areas with the client. Make the client aware that these concessions may not make him happy, but may be necessary to achieve a settlement. If this issue is something that the judge is unlikely or unable to aware the client anyway, make the client understand that. Identify a range of settlement.

Identify a reasoned bottom line, a position beyond which your client will not go.

Make sure that your client understands the bottom line and why it is there, especially if your client is not assertive. Make sure that, if your client during the negotiation goes past the bottom line, you document why the client has done so, and, if possible, document the fact that they exceeded the bottom line and that they were aware that they exceeded the bottom line. C. Negotiating The Case. In the age of mediators, many of us have stopped trying to settle our cases between ourselves, waiting until the date of the court mandated session to even open the door to discussion. This is a serious abrogation of our duties as lawyers. One of the greatest achievements of a domestic relations lawyers career is when they, in concert with opposing counsel, are able to settle a seriously contested custody case without further litigation and injury to the parties and more importantly, the children.

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Know your opponent. If you dont know opposing counsel, call someone and find out about them. Find out what type of negotiator they are. Do they take unrealistic stances and then move greatly when actually negotiating? Do they exaggerate and take unrealistic positions? Do they litigate every case until the last minute and then settle? Do they never settle? Do they take fairly reasonable stances at the outset of the process and then move very little? You should utilize this information when fine-tuning your settlement strategy. Once you have formulated your strategy, call opposing counsel and see if you can make a time to discuss the case. See whether you can meet face to face. Agree that, if you think that you can control your clients, that they will be present or at least, readily accessible. If you cannot control the client, recognize that you cannot and wait to meet face to face with the clients present at the mediation session when you do have a neutral present. However, you can still exchange written settlement proposals regarding the custody issues so that you will have some idea of how far apart you are, and have some basis for a start at mediation. Some lawyers will send their clients to a mediation session alone and be accessible by phone and in close physical proximity. This appears to be a successful strategy only if: (a) the clients still have the ability to communicate with one another in a decent manner, (b) the clients are of relatively equal ability in communication skills and (c) the parties have indicated that may of the issues are ripe for disposition through agreement. If either client needs to speak with their attorney, the attorney will be readily accessible by phone or in person. If the clients reach an agreement, the lawyers should then physically meet with the parties and the mediator at the end of the session to clarify the results and make sure that all issues have been resolved.

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One strategy which has been successful in settlement discussions is to draft physical custody clauses, each on a separate sheet of paper with a place on the page for each of the parents to initial. Begin the discussion with the ones that you anticipate will not be in issue or of little issue, i.e. things like alternating Thanksgiving, or spring break. What you might find is that the parties are so relieved to actually be agreeing on issues and getting them resolved that momentum is achieved which will assist you when you come to the more difficult issues. You might have in your possession two different clauses dealing with the same issues, one which states your first position and one which states your fall-back position. Another advantage which I have seen to this strategy is that there is something for the parties to look at in writing which can be changed or modified right then and then initialed. There is little room for discussion later if the clause has been drafted and approved on the date of the negotiation session. Another effective tool of settlement that I have seen used by a mediator is to request that the parties provide at the outset of the session photographs of the children from the parties wallets. These photographs are then placed in the middle of the table for the parties to be aware of during the session. This often helps keep the parties focused on the really important issue, which is the child(ren). You should be prepared to articulate in a settlement discussion why a particular clause or issue is important to your client. For example, you should be able to explain why it is important to your client that she be able to take the children for the week prior to the commencement of school or why it is important to your client that the parties agree that the child(ren) will attend a particular school. Obviously, you want to have a well-reasoned opinion.

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Dont be afraid to recognize when enough is enough for that day, if you begin to get stuck on issues. Some custody cases cannot settle in one session and will require more than one, due to a variety of reasons, including emotions, fatigue, and lack of understanding by one of the parties. Sometimes a parent has to think about reasons which were articulated by the other parent before they can concede the issue. Sometimes new ideas are formulated in the interim which will help bring the parties together. Try to meet again within a reasonable short time frame so things dont get stale and the momentum lost. Also, be realistic. If you think, knowing your client as well as you should by this time, that another session would be fruitless, diplomatically decline another session. You might want to follow up with opposing counsel by letter, always keeping the lines of communication open. D. Post Settlement Session. Never give up trying to settle the case, even to the date of the hearing on custody. Do not be afraid to be creative. If you client wants to do something out of the norm, the other side agrees and you think the judge will approve, then try it. Do not substitute your personal bias for the opinions of your client. While you may personally not agree with the custodial arrangements worked out by the parents, if the parent is satisfied and duress is not an issue, let the parent be the judge of what is best for their child(ren). You are certainly obligated to point out to the client similar arrangements which in your experience have had long term problems, but, in the end, it is the clients case, not yours. Before you commence the trial, make sure your client understands that a trial will irrevocably alter their relationship with their former spouse. Make sure they understand that such an irrevocable alteration will have an immediate and long-lasting effect on the children. Make 31

sure that there is no way to avoid the litigation. Make that one last effort to settle - it may just work.

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APPENDIX A Potential Witnesses ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ Accountants Ambulance drivers and attendants Appraisers Babysitters Children (including step children) Economists Emergency room personnel Employment Experts Family Members Fellow employees Family doctor - pediatricians, nurses, specialists ___ ___ ___ ___ ___ ___ ___ ___ Friends Neighbors Psychiatrists and psychologists Spouses Teachers Church Associates Welfare Workers Nanny 33 ___ ___ ___ Housekeeper Day Care Providers Supervisors

APPENDIX B Questions for Witnesses a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. How long have you known the parent and the child? What are your opportunities to observe them? Number of times per week or month that you have see the child? Where you normally see the child and the parent? When the child is sick who takes care of the child? When the child is upset or has a problem, who does the child go to? Who handles the bathing and clothing of the child? Who handles the car pools and errands related to the child? Who assist the child with homework? Who attends school meetings and conferences? Who attends class parties with the child and does field trips? Who attends extracurricular activities and sporting events with the children? Who is there to deal with the children on a day to day basis? Who handles the religious training of the children? When the child is with a parent, how are they dressed and what is their appearance? p. q. r. s. How do the parent and the child act towards each other? How does the parent keep house? What type of meals are prepared by the parent for the family and child? How does the child behave? 34

t. u.

What kind of child is this child? What observations have been made that show factually that the parent and the child love each other and/or that there is a close bond between them? For example, are there hugs, kisses, touches, does the child run to the parent or reach out for them when they come into the room?

v. w. x. y.

Any other reason you believe that parent should have custody. Any reason why you believe the other parent should not have custody. Anything else you can think of that is important. Any negative or harmful information about the parent who you represent - any reason to believe he or she is a bad parent?

z.

The worst thing you can say about the parent?

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APPENDIX C Background Information About A Witness: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) name age current address marital status if more than one marriage, how his or her divorce was resolved) the number of children in their marriage how long married number of children by former marriage name and age of spouse the witness occupation the spouses occupation and their duties

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APPENDIX D Areas of inquiry in custody cases. I. About the parents: a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. r. Employment and income of each party. The reputation and character of each party. Physical ability of each party to care for the child. Mental ability of each parent to care for the child. Emotional ability of each party to care for a child. Facts regarding fitness of each party to care for a child. Living situation of each party - physical set up. Special needs of the child. Special needs of either party. The relationship between the parent and child. The relationship between the other parent and child. The living situation of the child during marriage and after separation. History - who took care of the child during the marriage and after separation. Child care arrangements when a parent is unavailable. Future plans for raising the child given the changing environment. Issues between the parents - religion, education. Proposed parents plan. Special holidays, traditions, or events.

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II

About the child: a. b. Whether the child is well adjusted or not, healthy, well cared for, happy. The childs performance in school - grades, homework, attendance, honors, teacher conferences, extracurricular activities. c. The parents respective approaches to discipline and how the child responds - ex. timeout, spankings, withdrawal of privileges. d. e. f. g. h. Respective chores for a child at each home - room, kitchen, housecleaning. Childs appearance - grooming/clothes. Childs support systems - playmates, friends, neighbors, schools. Religion - church growth. Childs interests and activities when not in school - camps, scouts, sports, arts, music, etc. i. j. k. Childs relationship with siblings. Childs preferences. Relationship between the parties and the levels of cooperation/conflict.

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APPENDIX E Sample I RELOCATION - AUTOMATIC CHANGE

If within the four (4) years immediately following the date of the execution of this Agreement, Wife moves her primary residence to a location outside of a 100 mile radius from her current residence, then the custody shall change and Husband shall become the primary physical custodian of the two minor children and Wife shall become secondary physical custodian, and Wife shall have visitation with the children according to the current visitation schedule and notice provisions for Husband, provided Husband has not previously moved his primary residence to a location outside the foregoing 100 mile radius before Wife does, then custody of the children, subject to Husbands visitation outlined in this Agreement, and thereafter Wife may move to any location she chooses without such move having any affect on custody of the children. Any increased expenses in exercising visitation resulting from Husband moving his residence shall be sole responsibility of Husband. Sample II In the event either party moves his or her primary residence to a location outside a fifty (50) mile radius from his or her current residence, said move shall constitute a change of circumstances sufficient to modify custody based on the best interests of the child. Sample III In the event Wife moves her primary residence to a location more than fifty (50) miles from her current residence, then she shall be responsible for one-half (1/2) of the travel cost and transportation for the Husband to exercise his visitation.

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Sample IV The parties further stipulate that a move of either party to a residence greater than fifty (50) miles from ___________, Georgia or fifty (50) miles from each other shall constitute a material change in condition which would substantially affect the interest and welfare of the children. By entering into this stipulation, neither party shall be required to file an action to modify the decree in the event of such a move nor are the parties stipulating in advance that such a modification of the decree is necessarily in the best interest of the children. The parties further stipulate that ___________ County, Georgia is the proper venue for any modification of custody or modification of visitation action which might be filed in the future while either party resides in the State of Georgia, and each party hereby specifically waives any claim they may have under the provisions of Georgia law or the law of any other State to challenge Georgias jurisdiction of _______ County venue in such a proceeding filed by either party. Sample V Both parties agree that it is important to the well-being and development of the minor children that they both maintain residences in the vicinity of one another for at least the next five years. For purposes of this agreement, vicinity shall be defined as within fifty (50) miles of concentric circle from the square in Gainesville, Hall County, Georgia. This paragraph is a material condition of the parties agreement, and, if one of the parties moves outside the area set forth above without the others written consent, then the non-moving parent shall become the sole physical custodian and the parent moving shall become a visiting parent.

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