Dealing With Your Custody Mediator (KiDDS)

D{!aling With Yout Cu~tody M{!
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A fathgt'!! guidg to obtaining a good cu!!tody attanggrngnt
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Kids Deserve Dads Sharing November 6. 1994
KiDDS Guidebook
Dealing With Your Custody Mediator
DISCLAIMERS
This guide does not contain legal advice. According to the laws of the United States and of its constituent states, no one is permitted to offer legal advice without being a member of the select group of approved lawyers. To obtain bona fide legal advice, please consult a lawyer or another approved source. This book contains non-legal opinions, anecdotes, and discussion. Examples and individuals mentioned in this book do not represent any real persons, living or dead. Any resemblance to such persons is coincidental and unintentional. KiDDS does not take any responsibility ofliability for any action taken by a reader of this book. There is no guarantee offered or expressed that any information in this book is free from error or omission. Each person reading this text must take responsibility for his own actions, using this and all other reasonable sources as possible sources of information. No advice herein recommends the violation of any law of the United States or its constituent parts. Any comment herein that would tend to advocate any illegal act in any particular location is hereby repudiated.
KiDDS, 1994. Copying of this document is prohibited without written permission of KiDDS.
KiDDS Guidebook
f obte of Contents
DISCLAIMERS Preparation Types of custody arrangements Background checks Custody Interviews The Joint Interview The Separate Interview The Children's Interview Interpreting the Mediator's Recommendation Scientific Balderdash What's the Matter with you? Beating Supervised Visitation Do You Want the BIG EVALUATION? Questioning the Custody Mediator Cross-Examining the Custody Mediator Changing Your Custody and Visitation Arrangements Summary
i 1 2 3 5 8 15 21 22 23 23 23 24 25 37 38 38
KiDDS Guidebook
The custody mediator 1 is one of the most important people in the divorce process'. In California and some other states, a mediator is not necessarily a person with high personal status in the courtroom, or someone with extensive experience, with superb people skills or a great academic background, or with an extended professional education' or, in fact, any other special attributes. In other words, someone fairly ordinary is going to be deciding who takes care of your children, if you and your ex-spouse can not agree. In one sense, this is good, because there is no accepted way to allocate custody to divorcing parents and you wouldn't want somebody making decisions based on their own fixed opinions. The subject is still one of great controversy. On the other hand, you definitely want someone who is completely stable, rational, and willing to listen to both sides without any preconceived notions. If you're lucky, you may get someone like this. If you're not, you will have to deal with irrationality, bias, or instability. This guidebook deals with how to figure out if your mediator is biased and with how to deal with it. In certain other states, a lawyer fills the role of mediator. The lawyer chosen is not usually one with a great grounding in human psychology, but instead with divorce law experience. This leads to just as many errors of judgment as in states where a social worker or psychologist plays the role.
Preparation Going into the custody evaluation process cold and unprepared is a stupid move. It is a game to be played according to certain rules, and not knowing the rules will often cost you dearly. It is a game with the highest stakes for you and your children's lives. A Wait, a minute! Isn't my lawyer supposed to Yes .. Lawyers are paid according to the time they take care of custody arrangements.? I'm spend, not the result they get. Did you check before
paYinghim a heapof moneyto do Just that. I. 4 ' don't know a thing 2bout divorce 2nd he is an you hired your lawyer, If he has a reputation of expert. Are you telling me t.hat; I should try to getting the custody arrangements that his clients t.ake over what I'm p2ying him to do? No wanted? Or did you just listen to a lot of excuses chance! b.
a out how hard that ISand how the best that can be done is to wait and take your chances. Will your lawyer get more money if you don't get custody at first and want to go back later and try again? You know he will. Then perhaps you had better pay attention to what goes on NOW!
..
1 "Mediator" is California's name for this role, and mediators from the Child and Family Services Office or other court-appointed mediators should not be confused with professional mediators who cover a wide range of topics. This guidebook will only deal with custody mediators. Custody mediators go by different labels in different states that use non-judicial officials to recommend custody arrangements. They may be called evaluators, referees, custody investigators, guardians ad litem or any other name. The point is that they are people who consider the facts and personalities in divorce cases with contested custody and make
a recommendation to the judge, who makes the decision. In some states, they review all custody
arrangements. 2 They also playa role in custody determinations for unmarried parents. 3 A master's degree in psychology from any accredited college or university is typical. 4 See KiDDS Note 11: "Searching for a lawyer. "
KiDDS Guidebook
child's life is largely determined by how he or she is raised, and therefore by the person who is chosen to raise him or her. Children often lose touch with a non-custodial parent, so, if you have a deep love for your children, and want to play an important role in their lives, you had better arrange for joint or sole custody. If you feel you can raise your children better than your ex-spouse", you owe it to them to seek custody, and not just to seek it like you might try to win the lottery, without much effort. You owe it to them to push hard for the custody arrangement you think is best. Preparation consists of understanding the various options that are possible and picking what would be best for your children. It includes understanding how the custody evaluation process works and what moves you can make to get the arrangement you want. It involves learning as much about the custody mediator's background and biases as possible. Types of custody arrangements Custody arrangements fall under two categories: joint custody arrangements and sole custody arrangements. Here we are talking about physical custody, not legal custody -- that is almost useless". Joint custody means the two parents split up the children's time and make their own separate or mutual arrangements for such things as child care. Sole custody means one parent makes virtually all the decisions relative to the children and the other parent has visitation. Typical visitation might be alternate weekends, but almost any schedule is possible. Getting a well-defined, substantial visitation arrangement is a small step toward ensuring contact with a father's children. However, many fathers have found" to their dismay that visitation orders are almost impossible for a man to enforce. Courts simply are too busy to be bothered with this matter, and even if a custodial mother is brought into court on a contempt charge, it is highly likely that nothing will happen to her. It is likely that nothing will change and visitation will continue to be problematical. Excuses are easily found for a mother and even more easily accepted in many courts. Joint physical custody is a much stronger measure and is a step towards ensuring that a father cannot be gradually eased out or forced out of his children's lives. Going into a custody evaluation with only a desire for visitation means that there is likely to be no problem with settling the divorce. This also means that the father has almost completely given up his natural rights to raise his children. An ex-spouse who appears reasonable and cooperative at the time of the divorce evaluation, that is, until the father has given away all his rights and opportunities, has taken a very standard course It is as if she had been briefed by her lawyer or someone else on a game plan that will lead to what should be called a mother's victory in divorce court
5
6
See KiDDS Note 1: "Should you seek custody?" See KiDDS Note 79: "Joint or Sole?"
:KiDDS Guidebo.ok
Deafln,g With Your Custody Mediator
Some men seem to fed that their ex-spouses are going to be just as pleasant to them a year after the divorce as they are during the divorce. They fail to realize that their ex may have been counseled to be nice until she gets what she wants. They fail to realize that many things can happen that might alter their relationship with their ex, such as remarriage of either one to someone with different ideas, financial problems that she can blame on the father, jealousy over a new spouse or girlfriend, auger at her children preferring time with their father to time with her, and many others, These fathers trust in something they have no control over, They risk the most important thing in life, their children. Fathers who want to ensure contact with their children need to obtain custody and keep it. Joint custody, with a nearequal allocation of time, may do that. Sole custody does it better. What goes on in the evaluation process? It consists, for each court order 011 custody, of one mandatory step, an mterview or a series of interviews with the custody mediator, and two optional steps, one, a further interview with the mediator after her? recommendation is made, and, two, public cross-examination of the mediator in court Each of these takes planning. There are usually two sets of custody orders, temporary orders that last until the trial concludes, and permanent orders. As noted elsewhere", the temporary orders usually become permanent and the permanent ones can be changed, Bac'kgroundchecks
In general, a father should know the background onus mediator before he ever meets her ..This should include any information on her life that would help in determining if the mediator carries any anti-patemal-custody bias. Some fathers feel that such background checks are an invasion of privacy. In the first place, their children's futures are at stake here, and anyone's privacy is not nearly as important as that. Secondly, bias against men in custody evaluations is an abomination. It hurts children by denying them the best parent as custodian. It hurts society as a whole. The financial and political damage that has resulted from having large numbers of single-mot her-raised children has been measured. It is colossal. No one has ever stated that the incredihle increases in child
7 A large majority of custody evaluators seem to be female; however, there are some males in these roles, For convenience, we will use the feminine prenoun >- please insert the masculine one if it applies. :8 See KiDDS Note 40: "The divorce process" .
KiDDS Guidebook
murderers, teenage pregnancy, gang membership and other ills have come from having too much fathering. Instead, a fatherless child has a much worse chance of having or being a social problem. Putting an end to one of the root causes of these problems is well worth any privacy violations. Furthermore, if there is anyone profession that routinely violates privacy, it is that of custody mediator. A mediator may inquire into all manner of personal details of a father's life, if she chooses. She is not usually bound or limited in any way in her questioning. Thus, a person who chooses such a job has little p ~/I' grounds for trying to maintain her own personal privacy. Ij~ Some fathers have used private investigators to obtain (~ ./
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background
information
?n mediators,
especiall.y ones who
have developed a reputation for pro,-n:ater~al biases., ~hey have ~ou~d clues such as n:e~bers~p In stndent femI~st orgaruzations, colleg~ affiliat~~n~ WIth such causes, friends who.have heard ~edIat~rs, cntrcize me~. ~heY'have ~ound det~lls of,the,medla~ors d~vorces that, If bitter, may Impede
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wl~h other women's husbands. II 1-=.).:. ........... ........ .. 1 f/ !races of racial or e~hnic bias may also ,surface that might /}/ " influence some specific custody evaluations. It" J Other fathers have relied on their lawyers knowing the custody mediators. This has a major flaw Lawyers run in _~= lawyer circles. They may know that the judge in their You may be shocked by what you find courtroom holds barbecues every year for the partners of out about your mediator! What lies family law firms, and have personal contact information on behind that winning smile? his prejudices. They may have an attorney friend who lunches with the judge, and knows what kind of person he is. They may have attended a legal conference with him, or heard him speak there. They may have met him many times over lunch at the local meetings of the state bar. However, lawyers and psychologists do not run in the same circles They typically have little personal contact. A lawyer may tell a client what he has noticed in his previous professional dealings with a mediator, but usually he will not have much more. lfthe mediator is a homosexual who secretly despises men, the lawyers may not know. lfthe mediator is a bored suburban housewife, working part time, whose husband spends no time with their children, the lawyer community may not have any clue. If the mediator is a grandmother who raised her own children and noticed her own husband was totally incompetent in dealing with them, the lawyers may be completely ignorant of it. A father needs to get ills own information' One additional piece of information that a father can get relates to the atmosphere in the office where the mediator works. Many social service offices are exuberantly profemale. The reasons for this are varied. Mediators see some
their dealing ~partlally'
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pretty sorry cases. There are cases of men who batter women, and a few of these, if sufficiently stressed in office
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might be enough to distort the opinions of the office so much that they suspect all men.
there is so much being written now against men, picturing them as
KiDDS Guldebook
D.ealing With Your Custody Mediator
determined to put down women that the entire office could have an unspoken pact to make sure that it does not happen in situations where they can have anything to sayabout it. It might be that the administrator in charge of the mediators is simply poison-minded about men, perhaps because of her own life ;experiences, and the mediators have learned that giving anything to a male in a custody dispute is sure to be looked at by the administrator as an indication of a complete failure to appreciate what 'Society 1:S like, what men are like? or of what the purpose of the office is. Mediators are very, very rarely fighters and in an office run by a bigot, they will likely go along. Background information is crucial to any father who wants to give his children. a go.od life] No matter how bad the situation is in the mediatortsoffice.Jt is still worthwhile fOT a father to make the best case he can. There is always the possibility that the judge is fair, that an appeal will work, Of that he can extract concessions if he threatens an investigation. Bigotry only flourishes in the dark, and the typical anti-male bigot would rather give in on a particular case inorder to keep dumping on the rest of men. Be the case that is the eKception.. Save your ownchildren first, and then help the rest of fatherdom. Custody 'IntervieW's
The custody mediator has an easy job if the two parents agree on how they want to do custody. Unless there are some serious problems with the parents' preferences, she is going to go along with them." Serious problems would arise, for example, if she knew the judge wouldnot approve her recommendation for some reason. One reason might be the history of one of the parents, Perhaps the judge will not approve joint custody to a former alcoholic, no matter what the parents agree to. Of course, if the parents cooperate, what the judge says is worth the paper 1t'S writtenon, The parents do what they want to do. However, ifa disagreement between the parents happens later~ the courtdecision is the only thing they can fall back on; therefore ir's a good idea to try and get 1t right. The real fun occurs when the father and the mother don'tagree. The mediator may try to see if she canengineer an agreement, perhaps pointing out that the differences are small. Shecan try to bully the couple into an agreement. She can try to shame them or threaten them. If these strategies fail, she has to come up with a supportable decision as to how the children's time should he allocated and on who will make decisions concerning them. Expect your mediator to start A father going into an evaluation interview should be out extr.emeJy friertdl'v-prepared to. overcome any simple objections tohiseustody. hoping that YDU wm ,g,oatong One usual one is time and schedules. The mediator may Wii~h anything she wants. attempt to find that he can not be available Weare for the children. The father should have prepared a Parenting Plan that answers all these
.<) Discussions of'how to achieve such an agreement are included in KiDDS Note 9.8: "Cooperative parenting '" Also see KiDD:S Note 14: Kidsfor sale, " on buying CllStody_
KlDDS Guidebook
TIP:
Find a trusted friend and objections. The Parenting Plan covers where the rehearse your interviews, children are, who takes care of them, and who Rehearse again and again until you are not transports them. It should cover an entire week, nervous and understand just how to deal with and may cover vacations and holidays as well. the usual tricks mediators use to cut men out of The father shou1d expect and prepare for questions custody. on how well he has prepared the plan. For example, if he lists commercial day care for a period of time, he might be queried on how sure he is of a spot for them, how he has evaluated the day care center to see if his children will be happy there, and other questions. He should be on guard with every question for two things: is he being questioned about details more than his ex-spouse (assuming they are being interviewed together), and is there an obvious attempt to find some hole in his plan that the mediator can use as an excuse to deny him his preferred custody plan. There are three modes of mediator interview: the two parents together, each parent separately, and one in which the children accompany each of the parents to an interview. Most mediators prefer to start with a joint interview. This allows her to see if she can manage to get them to an agreement at once, without any hassle at all. Only lithe parents refuse a joint interview would two separate interviews be necessary. However, if there is a good deal of tension between the two parents in a joint interview, the mediator may schedule two separate follow-on interviews. Children are often not consulted in the mediator interviews, especially if they are young ones, under the age often or so. Some mediators may want to see how the children get along with each of the parents. For older children, they may want to hear the !fyour mediator makes one of children's thinking about custody. the most elementary errors Y oung childre~ usually are not interviewed and indicates a bias by interviewing your ex separately, but only.WIth th.e par~nts present. A with the children and you alone, you need to balanced way of doing the mterview would be for complain immediately. You probably have each parent to have :intervi~w with the c~dren grounds to request a new mediatorl Only with pr~sent. FO: olde~ children, either parent ffi1~t a strong reason, like proven violence, should bnng the children m. Try to be the one to do It. this happen
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Angry behavior usually doesn't work.

It just confirms a mediator's bias that
an msn am animals and shouldn't be

allowed near children.
KiDDS Guidebook
KiDDS Guidebook
The Joint Interview Remember that the mediator will make a custody evaluation based on very little information. As strange as it seems, your children's entire future may be decided in a single interview that seems inconsequential and very casually done. Yet it sets the temporary orders that often determine the permanent orders that determine who will play the most important role in influencing your children's success in life, their character, and their emotional make-up.' It cannot be stressed enough that a father who wants his children to develop to their full capacity and have as much from life as possible needs to do these interviews well. He also needs to use the interview time to lay the groundwork for future challenges, if the mediator refuses to go along with the facts that are presented to her and follows a line of bias instead. There are several things to be ready for in your first joint interview or any followup joint interviews. In order of importance they are Know what you want and be able to say why Have the courage to stick to your request Be familiar with some mediator tricks for promoting female custody Have a plan worked out that you can use to fend off mediator complaints about schedules and other arrangements Be prepared to deal with allegations or lies that your ex may tell about you, about your personal habits or personality characteristics, your history, your relationship with your children, or any other areas These need to be considered, one by one. Know what you want It can't be said enough that you need to put your children's interests first. If you can raise your children better than your ex-wife, you need to do whatever you can to get custody and raise them. If you think that your ex is capable of being reasonable and is a good person to raise your children with you, you can consider joint custody (although a strategy might be to ask for sole and settle for joint). Only if you have the self-esteem of a wart and the capabilities of a slug should you consider not devoting whatever effort you have to caring for your children. Very many times, fathers who do not get sole or joint physical custody are eventually cut out of their children's lives. Do you want this to happen? There is no assurance that it will not happen to you if you settle for visitation. No matter how the mediator assures you or how your ex declares repeatedly how important it is for you to be involved, things change! You can't count on what you hear, only on what you've won in court. Stick to your request You will be asked to be reasonable, to compromise, to give in, to consider the children's interests, to go along, in short, anything to get you to give up your request for custody. If you have determined that you will be the best custodial parent, your children need you have the courage to go and get custody. You don't get it by giving in. Agree to compromise on anything but the essential goal: having custody. Tell the mediator you are happy to give in on almost any point, as long as you get custody State that you would love to get an agreement, and you are willing to grant your ex any reasonable visitation (that is what they will offer you), as long as you have custody. Just
KiDDS Guidebook
remember, your children's future is at stake. Mr. Nice Guy doesn't get his wife back by giving in to her in the mediator's office -- he sells his kids out. Be familiar with mediator tricks. If you don't think you are likely to run into pro-female bias, go buy a newspaper or magazine and look at what passes for PC today. Check out the attacks on men that appear and just think, is the mediator immune to this constant pressure in all the media to persecute men? Is the mediator from a background that would have her want to give a man what he wants, or is she from a little community of profemale social workers who hear, every day, stories of despicable men and suffering women, told by her colleagues. Men who have worked in social services agencies have publicly described what the culture is like, and how it is impossible for a masculine man who works there to get an even break for promotions or raises. What do you your chances are of getting what your children need without a struggle? Have a parenting plan. A good listing of the components of one appears above. Make up one and fill in all the details so one excuse the mediator might have for disappointing you won't work. Prepare for lies and allegations. Divorce is a time for heavy emotional scenes. You need to understand what your ex's complaints are against you, and to prepare, by rehearsing, what to say about each of them. You may meet some new lies in the interview, but most likely, your ex will have used them before, either in her court papers, in quarreling with you, in gossiping about you with her friends, or elsewhere. Make a list and be ready to counter them. Remember to take care to prepare for this very important day in your children's lives. Here are some examples.
Joe 'lnd Honny

To illustrate the care that a father needs to have, consider the interview that Bonny and Joe had with their custody mediator, Maureen. Maureen had a practice of meeting with both parents together, at least at her initial meeting, to try and get some agreement. However, Bonny wanted full custody of their two girls, Ina, 6, and Alana, 4, and so did Joe. Joe and ... Bonny both worked, but Bonny worked only part time, three days a week, while Joe was full time. After about ten minutes of taking and checking some basic facts, the interview went into the plans that each had. "Bonny and Joe, I want to talk to you about seeing if there is some chance of compromise about the girls' custody. I have read the papers you filed with the court, and I assume you both know that each of you has requested full custody. Joe, I'm just wondering if you have looked into the difficulty taking care of the girls, with them being so young, and needing personal
care. It's not something to be taken lightly. I know that when couples get
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divorced, often they don't want to go along with anything that the other one wants. But when it comes to children, we have to try and put that aside and work together toward finding something that is really best for the children. "
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Joe was not a wimp'". He saw the subtle implication that Maureen was making. "Call a spade a spade," he thought. "Maureen, do you think that a father can't take as good care of two young girls as a mother can?" Maureen was used to this. "No, Joe, I have no biases at all. I just ... " Joe interrupted. "That's good, because I would have to make a major complaint if I was being interviewed by a biased mediator. I wouldn't even want to spend another minute in this room if I found out I was dealing with a sexist bigot. " Bonny jumped on him. "What makes you talk like that, Joe? That's just an illustration of how impcssible it was to live with you. You just don't understand women and that's why you don't understand our girls. They need a mother who is aware of the problems that girls and women face in this world" Joe saw the feminist flag go up and watched Maureen to try and figure out her reaction to the outburst. Maureen just sat there. Bonny was trying to call on Maureen's sexist biases to try and gain points. He knew that he had to put an end to that. "Bonny, shut up. If you have any facts to lay on the table, you can do that, but I'm not gong to put up with any personality attacks. You don't like me, but that's not the point. The kids are the point. Why don't you start off by telling Maureen any reasons why you think I shouldn't be custodial parent?" Maureen wasn't too used to having her interview taken over by an interviewee. "Joe, please let me run this meeting. I have some information I need to establish. Joe, I started by asking you about the problem of taking care of the girls with you having a full time job, and, I understand, a very stressful and demanding one. " Joe didn't allow any assumptions that would hurt him to go by unchallenged. "Maureen, who told you my job was very stressful and demanding?" "Joe, it doesn't matter who told me, what matters is how you were ... " "Don't be evasive. Where did you hear that?" "I'm not trying to be evasive. I think I read it in one of the court filings. But the ... " "It must have been in Bonny's, as I never said any such things. You have some explaining to do. " "What, I don't ... " "You walked into here with an assumption that would negatively impact my
case for custody, an assumption that you got by reading the opposition
papers. Instead oj checking it, you presumed it was correct and started
10 If you are a wimp, don't worry -- wimps make great fathers. They raise children who are sensitive and caring, qualities the world needs a lot of. Just practice interviewing and try to be a little less wimpy there.
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questioning me on that basis. That is uncalled for and indicates that you are not as neutral as you claimed to be. I think the first thing we need to do is see if you are able to make an impartial judgment here, or whether you should bow out and let someone else prepare a custody recommendation. " "Whoa, Joe. I didn't do anything partial. I just asked you how you planned to take care of the girls. That's not biased I was going to ask Bonny the same thing. If you don't want to answer it, we can. .. "Are you denying that you stated to me that you thought my job was stressful and demanding on the basis of what you read in my ex's court papers? " "Well, is it? It would make a big difference in whether you could adequately take care of the girls. " "Why is that? Are you assuming that a person who has a stressful job can't relax at home and take care of children even more successfully than someone who doesn't have a stressful job? Because of the profile of American work, that would be quite anti-male. " Two snap shots into Maureen's attempts at knocking out Joe's custody request with a few quick remarks stopped her short. The silly and irrational justifications that Maureen was used to using to talk naive fathers into surrendering their custody options came apart with Joe's questioning. Maureen had no data for her decisions, and it was becoming clear very rapidly that she was going to have to do something else. Time for her Plan B. "Bonny and Joe, we need to work together to try to come up with something you both can live with. If we can't decide together, the judge will, and what he decides may be something that neither of you likes. " Joe saw the "Good cop, bad cop" routine coming across. He wasn't going to go for this either, but he gave Maureen some more rope and just nodded. Hearing no reaction, she took silence for agreement and went on. "I would like to discuss how each of you would take care of the girls if what you asked for in custody arrangements were granted Bonny, why don't ., you start. " 'Thanks, Maureen. I've arranged everything for the girls very thoroughly. They are going to have a wonderful time. I'll be with them all day Tuesday and Thursday, except for the time that Ina is in kindergarten. I'll drop her off there and pick her up myself She likes riding with me to school because we talk about what she's doing and how she likes her teachers. Just last week we talked about some boys in her class who were making. .. " Joe wouldn't keep quiet. "Bon, keep on the topic. Explain how you are going to take care of the girls and then let me do the same. Save the chat for later. " Bonny just glared at him and went on. "Other days, I'll drop Ina off at kindergarten and Alana at Wee Folks day care. I can take off at lunch to bring Ina over to Wee Folks after
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Dealing With '(our Custody Mediator
12
kindergarten is out. I'll pick them both up-a15:30. Joe can see them every other weekend ] 'm sure they'll hardly notice he's gone." "Maureen, my arrangements are simpler than Bonny's and easier for the children to cope with. Each school day, I drop off the girls at kindergarten and day care. Wonderland day care. They will pick up Ina after her class and Fllptck them both up at Wonderland after work Alternate weekends they see Bonny. " Maureen couldn't easily shed her habit of putting down fathers who thought they could care for children as well as a mother. "What about holidays, Joe? How are you going to care for them when the day care closes for a holiday. " "Same way Bonny would I get most holidays ojl and the ones I don't will be a special treatfor the girls. ] have a number of baby-sitters who can come to my house and spend the day entertaining and teaching the girls. " Bonny disagreed with his claim. "Fat chance, Joe. Baby-sitters sit and watch television all day. YoujUS1 don 't know about babysitting because 1 've always taken care of it. " "Wasn " very hard, was it, Bonny. Do you think 1 couldn't handle itfor some reason? Or do you agree I'll have someone there no matter what?" "Isuppose Y01l would. You always do stress organizing over tenderness- " Maureen stepped ill"There isn 't any reason for you to worry about such things. I'm sure both of you will be able tofind baby-sitters. " Maureen sayan opening and moved toward it. "Joe, would you have any ,--------------------, Don't take dollars instead of objection to Bonny having care of the children on the custody. A father would probably ; days she has off? You could pay more in child support in this arrangement .anyway, so it wouldn't do him any good to accept save some money that way this offer. and the girls would have their mother full-time those days. "No, Maureen. It seems you are against day care, What makes you think the girls would not do better in full-time day care than with their mother in an irregular schedule? Do you think day care is inferior? If you are, you are insulting many millions of women who gave up staying at home to go to work and who had to put their children in day care. Do you think that l-va.Jt? It sounded like you did And besides, your job is not to discuss money issues, out custody. " "If we can '1find any area of agreement, we are going to have to let the judge make a decision If that happens, J can't guarantee what ... " "That's not quite right, is it, Maureen? You are required to make a
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recommendation, aren 't you? 1 "pant to know what the basisfor your
going to be, It has to start with the welfare of the girls. Where do you go from there?"
IS
recommendation
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"I'm going to have to think about it. Our time today is about up. I may need to get together with you both again to try and make some progress on this. Please, when you leave here, try and think about how you can cooperate to raise these nice children. " Joe recognized that it was a zero-zero score, and that was good, since he had eight-to-one odds against him as a father. He had managed to keep from being maneuvered or bullied into an agreement that he felt would hurt his girls. He did it because he was aware of the various lines that Maureen typically used. Joe had prepared a compendium of what had happened with the interviews with other fathers and had studied them. His lawyer also contributed some insight into Maureen's habits and the habits of the office that she worked in. That was one reason Joe had chosen that lawyer, and it proved to be a smart decision. Joe had also prepared a Parenting Plan, and was ready to talk about it if Maureen had any points to be made against him because of his career. One purpose of the interview process is to get to the allegations that have been made against you and deal with them. The point is not to simply claim they are false, but to show the mediator that she has no reason to believe them. Consider another example.
Pete and Michelle

Pete married Michelle with the best of intentions. He intended to live happily ever after. Michelle's idea of happiness was somewhat different than Pete's and involved more diversity in men than he was willing to cope with. They had a little toddler, Debra, just 2 years old. Pete had filed for divorce, and Michelle had blown up. Both sought custody. Raymond was their custody mediator. He had started by asking them if they wanted to come in together, and since they weren't speaking to each other, only yelling, they all decided that it wouldn't be useful to have a joint meeting. Pete came in with Debra, and left her in the playroom in the receptionist's area. Raymond did not want to meet with her. Raymond was interested in avoiding confrontation entirely. After a bit too much small talk, they got down to the subject of the interview. "Peter, we are going to just sit and talk for a while about Debra. Right now, you are still sharing the house, aren't you? "
((Yes. "
"And you are avoiding Michelle as much as possible? " "We stay at opposite ends of the house when we are home. I eat breakfast earlier than she does and dinner later. She stays in her room mostly when I'm around in the house. We're doing OK " "How is Debra taking this? Is she showing much signs of being upset?" Pete recognized that Raymond was taking his job seriously, and was probing to see if he was paying attention to Debra's condition. A real candidate for single fatherhood would need to be able to recognize how a two-yearold was doing without the child being able to explain it.
ioos
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"I take care of Debra most nights. She is very happy. I don't think she has a clue about what is going on. The only time I see her with Michelle is when I get home and get her from Michelle. Debra always acts very eager to see me, and smiles and grins a lot. " "Does she look anxious to you? Or does she cry more often than before the trouble started? " "Not when she is with me. I hear her crying when she is with Michelle sometimes, but not for very long. I really don't think she has a clue yet. " "Does she ever ask you why you don't eat dinner with Mommy? Or any other questions about the separation you are having inside the house? " Raymond is responding to allegations that Michelle has made in her court papers that Debra is unhappy when she is with Pete and that she asks to spend more time with Michelle. Pete is dealing with it by speaking factually. It is often hard to refute stories about what a child says to the other parent, even though they are often false or the child is led into saying such things. Counterallegations and stories about what happens when father and child are together may be the only way to balance it. Remember, you don't fight a forest fire with squirt gun. Jump on the allegations with full force and squash them so the mediator can't use them to justify a wrong-headed custody award. Don't simply disagree or quibble with details. "Yes, actually. She says that Mommy is so sad sometimes that she gets sad Other times she says Mommy is so angry she gets frightened Michelle really needs to be away from Debra when she is in a mood that would scare or depress her. Debra is going to have to go through some tough times, and she should be shielded from Michelle's bad moods so she can recover as soon as possible. I hope you realize how sensitive a two-year old is in this type of situation. I always manage to think of Debra when I am with her, rather than concentrating on my own problems and getting moody. Debra needs to be given priority. " Pete managed to knock out Michelle's claim and to reverse it. Now, if Raymond tries to base a custody order awarding primary physical to Michelle on the basis of Debra's conditions, Pete can cross-examine him to show that there is no substance behind it and that Raymond ignored equally justified allegations on the other side. Pete is keeping the interview balanced and not providing any loopholes for Raymond to slip maternal custody through. Remember to learn the standard moves for a mediator before you go to the initial interview and to rehearse with a friend being questioned. Yes, you can do a good job because you have to do a good job. Your children's future depends on it, and nothing can call up more capability in a man than the critical needs of his children.
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The Separate Interview Separate interviews are easier for fathers to do, but they can be a complete sham. A total ruse. An absolute joke. What would happen if you went to an interview with your mediator and found that the mediator just listened to you attentively, took notes, explained how she sympathizes with you and gave options for dealing with the problems that your ex is causing your children? You would be all smiles and leave the interview considering that you had done a great job and that it wasn't so hard after all. Besides, this mediator didn't seem biased at all. Then, when the recommendation comes, it has no resemblance to what you talked about. You're stuck with what the court calls "reasonable visitation" and your children are condemned to their mother's custody. What happened? One route to this outcome is for the father to go in first, and give his story. The mediator nods agreement, and doesn't have to put up with any hostility. Mediator and father get along fine, everyone is happy, and there is no confrontation. The mother goes in second, and all the statements the father made are forgotten as the mother tells her tales of woe and elicits the personal sympathy of the mediator. The mediator realizes that the father is just another man with an ax to grind, full of hostility that is hurting his ex-wife, telling a set oflies about the poor woman, and a terror to his poor children. He gets a knife in the back. Another route is for the ex-wife to go in first, and set up the mediator's prejudices with the usual stories of blameless suffering. If the mediator is sufficiently hypocritical, and the father sufficiently insensitive to her responses, it might be possible that the same outcome could occur. One way to work on this problem is to understand the background of the mediator and see if this is the kind of whammy she pulls on fathers, to foresee the allegations that are going to be made and try to defuse them in the interview, and to use the telephone to call the mediator and confirm the results of the interview with the ex-wife.
ClZlIZlnd Chrl~~Zl
Sal's problem was that he was a bit too smart for Chrissa. When he and Chrissa married, he was attentive and gave Chrissa the indication that her life was going to be one where her man was always there for her. But Chrissa did not do anything to keep the interest going. They had three children within the first six years of marriage, and that kept Sal always involved. But later, Sal simply lost interest in spending much time with Chrissa, and instead of trying to become more energetic and interesting to improve their marriage, she just blamed Sal for the problem. Soon, she found a cooperative divorce lawyer who gave her an incredible amount of personal attention. She developed a hate for Sal after talking to the lawyer and, as he called it, realizing how unjust her life had been with Sal. She became determined to teach him a lesson for ignoring her. After ten years, it was splitsville, and Chrissa was going to go for everything. Salloved his children, spent time with them, and had noproblems in taking care of them. He recognized that Chrissa was not terribly competent or mentally lively, and didn't want his three bright children stunted by being in her custody most of the time. It was a hard decision for him to take on the burden of custody, but Sal put his family above other
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things. Both he and Chrissa requested sole custody, with visitation for the other one. Chrissa's lawyer threw a party when he found that out. Custody fights are the most expensive battles in divorce court, and Sal had big bucks. Sal prepared for the mediator by having an investigator do a background check on both his assigned mediator, Rebecca, and the head of the office, Renee. To his surprise, both of them were divorced single mothers. The investigator pulled their divorce files and found quite a bit of antagonism, especially in Renee's. Her husband had run off with another woman, had taken their savings (according to Renee's declaration) and left her with nothing but their children to take care of The investigator was unable to find any indication that Renee had gotten over it and formed another successful relationship with a man. Rebecca's file indicated that she had a good relationship with her ex at first, but it deteriorated when he became unemployed and couldn't pay support. Sal concluded that he was in for a rough go. Chrissa had refused to go to a joint interview, so Sal went alone. He went first and was prepared for a fight. But he was also prepared for stab in the back. He was ready for whatever happened. His interview started with a review of the various dates and children's data. Then it turned to questioning. "Sal, I've got all the data I need. Could you tell me why you want to have custody? I've read the court filing your lawyer prepared, but I'd like to hear it in your own words. " "Thanks, Rebecca, but you needn't worry that anything in those papers is not mine. 1 review everything that is said before it goes to court. It would be more productive if you could tell me your reaction to it and how you plan to make a recommendation. " Rebecca was used to men just following her directions and acting the part of losers begging for a good settlement. Sal was not like this. He reminded her of her husband. "That's not really part of the interview, Sal. I need to know what's behind your request for custody. Why don't youjust tell me how you came to the decision to seek custody? Have you done much thinking about it?" Sal was in a dilemma, but he was prepared because of his Don't condemn your ex-wife for background knowledge. If qualities that the mediator might he attacked Chrissa's identify with. Try instead to concentrate on solving competence as a potential problems that your ex has, and leave the attacks single mother, Rebecca might for later, if needed. Also good are personal relate to that. For all Sal reasons and children-oriented reasons. knew, Rebecca could have the same traits as Chrissa, that is, difficulty in organizing, rather dull personality, inability to inspire bright children, and an interest more in
irlP:
amusing them than in teaching them or giving them a good and moral
example. Rebecca might have the same frustrations that Chrissa had with bright, lively children and could identify with her and feel compassionate. She could hardly be expected to deny Chrissa custody because of the same
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traits that she herself had. So Sal had to give a different reason, one that Rebecca couldn't identify with. "Chrissa has been home with the children for ten years, now, and she needs to be free of those responsibilities to go out develop a new lifestyle for herself. That is not going to be easy for her, and my having the children will make it easier on her. Besides, they don't respect her as much as they should, and she really needs to go do something about her career. I'm willing to support her while she does this. Secondly, I have been spending most of the quality time with the children for the last few years while this problem has been developing. Chrissa is simply serving as babysitter, and they deserve quality time, not babysitting time. Chrissa needs to be away from it all and the kids shouldn't be put in a new situation where they don't have my personal attention. I'm not a visitation kind of person, and I am a custody type. I can do custody well, and the children wouldn't have to have a major change in their lives as they would if Chrissa took them. She is so mad at me, some time awcry from me and the kids would help everyone to get along better. I know Chrissa fears going into a new situation, and regards the children as her escape from the real world But that is not good for her or for them. Am I making myself clear?" Rebecca was listening quietly and intently, seemingly a bit remote. Sal had a hunch she was reflecting on her own life. Finally, she said something. "Sal, I think that is very clear. I can understand Chrissa 's reluctance to go out in to the world When I got divorced, I hadn't worked for six years, and my husband didn't have any feeling for how hard that was. But worse things happened in our marriage, anyway, so it wouldn't have made much difference if he had A man getting custody is rare in this court, Sal, but maybe it's possible. Why don't we talk about how you are going to do day care" By the time Sal got out his parenting plan, he felt pretty comfortable with what had happened so far in the interview. It concluded with a long discussion of children and divorce and what parents could do to help them get through it. Sal already had familiarized himself with the subject, but he listened calmly to everything Rebecca had to say. Chrissa's interview was scheduled for the next morning, and he called Rebecca that afternoon to figure out what had happened. "Hi, Rebecca. I called to find out your response to Chrissa's interview and to see if you have formulated a recommendation yet. " "Oh, Sal, I've got to think things through. I've been very busy since the interview and haven't had any time to compare notes. Maybe I'll be able to do that early next week. " Saldidn't like the tone of that evasion and stalling. "What kind oj first impression did you get?"
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"Well, I always try to be open-minded with everyone who comes to my office, and certainly Chrissa has some good points that have to be taken into account? "What kind of points would that be? Did she bring up anything that wasn " covered in our declarations? I certainly need to know about it so that I can respond One-sided allegations aren't very good fOT making decisions. " HI don't exactly remember, Sal. I'm concentrating 011 getting another case ready now. I'm not completely clear, but I do remember she had points to make. Why don "we talk later?" ,---------------------------------, "I'd certainly like to talk later, 1? Don't be put off and denied the but do you have any notes .I information you need to respond. you could look at that will let Whether you get it in a later call, or you have to us get started now. I'm only have two later meetings, one to get information asking for a quick overview, and one to answer it, make sure thai aU not a detailed description" allegations and claims are disposed of. "Oh, just a moment. " Rebecca's voice indicated she would certainly not want to do this now, but Sal still couldn't tell ifshe was perturbed because she was overworked or because she didn't want to reveal what was said. She came back quickly. "Here it is. Frankly, Chrissa pointed out how little time you actually spend with the children that I didn't appreciate from our conversation. She also told me there were times you scared the children with your outbursts. That is something that has to be taken into account as well. She doesn't seem particularly worried about changing her life, either. She said she is really charged up by taking care of the children, so taking them away from her might hurt her change of lifestyle more than it helps it. I suppose those are the highlights, Sal. " Sa] realized that it wasn't going to be as easy as he supposed. But be hadn't neglected to ensure that he knew what was going on. His lawyer might have found out} but his lawyer was not going to make the personal contact with the mediator that he felt would do the best for himself and his children. "Re becca, thanks for sharing that with me. When can we get together to discuss these points? I'm sure you want both sides before you make your recommendation on custody. Sal got his second interview, and he was prepared to deal with Chrissa's points. He knew that the oldest trick in the divorce book is to blame a man for being a man, for example for yelling in the house in front of the children, when it is clear from actual records that women yell just as much. Men are just more blamed for it, and Sal was not going to allow that. He also had some data on single mothers, with and without custody, and how they fared. Lastly, he prepared some recollections of the times Chrissa had complained about the workload imposed by the children, and in the second interview, he was able to help Rebecca return to the idea that
Ip.
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Chrissa would benefit from his recommendations. He only managed to get a recommendation for joint custody, perhaps due to Renee's influence, but joint is a good step toward sole custody and the full benefits of his custody for his children. To summarize, a father needs to be aware of the usual moves a mediator might make, which are listed in the following table. These are not all the standard attempts to get a father to abandon his children to his ex, but these are most of the common ones. On the right side of the page are examples of how to deal with them.
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Custody mediator maneuvers

Be a good guy and go along with something for the good of your children. Let the children be with their mother as much as possible. If we can't make an agreement here, the judge may make one no one likes. There's no way I can make a decision here. Concentrate on your job as it is important that you keep the family's income coming in.
Father's responses
Have the other party go along with my request. That's not a good idea to begin with, and day care is every bit as good as most mothers. The judge has no more options than the mediator does. decision. Move aside and let someone in who knows how to evaluate parents for custody. I would get so depressed from being taken away from my usual contact as I am good for them. with my children that I couldn't work as well. They are good for me, just Let's get down to making a rational
You need to put aside your antagonism and move to some compromise. Your work schedule doesn't allow you to be there when the children need care.
Put a fair and equal alternative for a compromise on the table. I have determined a parenting plan that covers all these possibilities. for I have arranged possible with my employer maximum flexibility.
Where's the problem? Your wife has more experience in taking them? care of Exactly what haven't I done, if anything, and why would that learning be hard for me to do? Document that How much with some is there? children than you do, so why not let her have
serious information, to care for children. them. Very few men take custody and you would isolated and might not like it. be There's
as I think it's straightforward In fact, I can organize it so
well that I'll have plenty of time to have fun with no need to remind me of the social
discrimination
against my gender.
What are you
going to do to rectify that, perpetuating it? I want to find something that will last, and since you haven't been a single father before, I'm afraid you would want out soon. Why don't you let us try this arrangement and see how it works. We can change it later. You live in different cities and the children have to live somewhere. We can give you almost complete liberty on visitation, so that you can see your is to split children whenever they aren't in school. The only way I can see to do this custody 50-50. That's good for starters.
anyway, instead of
Since when do men give up custody more tha~ women? And even if they did, what possibly gives you the Sure, idea that except that I would? I want Treat to people as try my individuals, please, not as sexual stereotypes. recommendation first and then we can change it
later if it doesn't work out. Unlimited visitation sounds like a great idea, and if my ex-spouse is willing to accept it with me as custodial parent, I'll go along with it as well.
Chart of mediator arguments for a father to give up his request for custody, along with some sample responsesto them. There are many other responses.
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as
Besides learning the normal tricks mediators use, a father should prepare as much possible by Learning the background of the mediator and the office she works in Prepare a parenting plan Rehearse the interviews Learn and respond to the allegations of the ex-wife Establish that the mediator records or remembers the points and counters that the father brings out, so she can be properly cross-examined in court and the groundwork for an appealcan be laid, if necessary Immediately after every meeting and phonecall with the mediator, the father must make the best notes he can on what was said by whom Live up to any offer to make information available to the mediator Don't procrastinate - divorce may be unpleasant but it is over quickly, compared to the deeper pain of children who are cheated out of the best parent for custody
The Children's Interview Occasionally, a mediator will want to have an interview with your children. If they are young, it is to see how well you get along. Make sure that this goes all right. Do not get tense, or try to prepare very young children, but just continue to give the love, physical contact, and attention that they deserve. Show them and tell them you love them, and hope for the best. With somewhat older children, up to about 10, you can explain a bit about what the interview is about. Be reassuring and make it somewhat exciting for them. Little children do not necessarily have a fear of court or of government officials. They may just regard this as fun and let them. If your children have been brainwashed by your ex into disliking or fearing you, you should explain this to the mediator in advance, and use it as a further reason that you should have custody and contact time immediately. Put off the children's interview until they have had enough time to be with you to get to realize that you are not an ogre but a loving father. If you have been put into a bind, in other words, if your children are denied to you except for short times or in restricted circumstances, explain to the mediator and document for the court that they are being brainwashed and taught to hate you (or whatever is happening to them) and demand that the court order this to stop by granting you adequate contact time. Make it clear that there is no way that the children's behavior can be used as a guide to custody except to demonstrate that their mother's custody has resulted in hostility between you and them. Protest this over and over again. Raise the stakes if you have to and contact whomever you need to in order to get the attention of those responsible for denying you contact.
With children over the ase of 10, and certainly those over the aoe of 14, the mediator should check to find out the preferences of the children. It is hard to force a
teenager to live with a parent he or she does not want to.
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If you think your child does not want to live with you, you need to reestablish your relationship with the child first. This is not likely to be something that can be done immediately, and probably not before any custody recommendations are given. Rush yourself to a bookstore and pick out some parenting texts and start reading. Then start relating to your child. There are some situations that are unwinnable. For example, if you have been the disciplinarian and the one who insists on schoolwork and homework being done, who forbids or limits activitiesand who sets up chores, and your ex-wife works hard to help your child break your rules and do whatever he or she wants, to his or her own detriment and future loss, you are stuck. A spoiled child is not going to choose to become unspoiled when a life of freedom is available. You waited too long to do something and now it is going to be very difficult to help that child. Some discussion of the way to reach your child is available in books and other sources!'.
Interpreting the Mediator's Recommendation When you get the mediator's recommendation, make sure you have time to study it and understand its implications and that you have adequate time to figure out how to challenge it, unless it is what exactly you want. Don't go along with it because of the pressure of the court or just because the judge pushes you to say what is your problem with it or declares that you should cross-examine the mediator right away and ask anything you want. Don't go along with any pressure tactics or bow to any threats! Your children are too important for you to be given the bum's rush by the judge, who may be just as biased as the mediator. Don't get pushed into a corner by the frequent trick of withholding the recommendation until the morning of the hearing. If your lawyer doesn't stand up for your right to have enough time to review it, order him to do so. If you can't order your lawyer to do so, fire him and get one you can work with. Ifhe refuses your order or flubs it, fire him on the spot and take over your case immediately with a request for a delay for ~ you to review it, choose another lawyer, and meet with the mediator for a detailed discussion of it. If you are refused by the judge, state aloud that you object to the rush and regard your right to a fair trial have been taken away from you. Ask the judge to state for the record why is the need for such a rush and declare your willingness to meet with the mediator quickly, and that you feel that it is a move to deprive your children of their best custody option and you of the right to be a custodial parent. If you are still denied, start shopping for an appeals lawyer. If there is any time in your life to be brave, it is when your children's future is at stake.
11
See KiDDS Note 90, "Temptation. "
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Scientific Balderdash Most mediators do not do much in their recommendation toward justifying their decisions with social science or other forms of scientific basis. If it is done, you should remember that most social science conclusions are really very limited in their applicability to any specific case. Even worse, most of them are full of poorly-defined concepts, bad data, unmentioned assumptions and other non-scientific features. There are usually other reports giving the opposite opinion, unless the conclusions buttress some acceptable social conclusion. Money to do studies to oppose politically correct results is usually not available. The points to make are that you are not part of the statistics, you are an individual and what applies to a statistical group does not apply to you. To illustrate, suppose that some social science result finds that 60% of the children of single mothers have behavioral problems. Does this mean that if your ex-wife gets custody, your children will have behavioral problems. No. You can't use those arguments to apply to your ex. Neither can a mediator use such arguments against you. If your mediator does use such arguments, use it to overturn any unfavorable recommendations on the grounds that she is putting you in a group and there is no justification for it. Object on the grounds you are being stereotyped and not treated or evaluated like an individual. Suggest this is the same thing as sexist prejudice and that you want an individual evaluation, not a condemnation of men or some subgroup of men.
What's the Matter with You? If you were denied custody, there may be no grounds stated. However, there may be some, and you need to figure out how they apply. Is it on the grounds of convenience? This is a schedule thing, and your parenting plan should have taken care of it. If not, modify it and go back to the mediator. If the denial is on the grounds of your background, make sure you understand why the mediator chose those grounds. If it is not stated, you need to have an interview to question her. If it is on some other basis, you need to see what are the differences between the two of you. What is the mediator's view of what is the matter with you? If it is on the biggest con - the pretense of stability, you can try to discern just what stability means to the mediator. When you have done this, you can try calling her up and asking her to revise it on the basis that she misunderstood something about your background. If no cooperation occurs, you need an interview to question her.
Beating Supervised Visitation One of the worst outcomes of a mediator's evaluation of custody options is to give your ex full custody and you "supervised visitation", This means that someone, an approved monitor, has to be; with you when you are; hewing visitation with your children. This can be worse than hell, as the monitors or mediator can impose rules on you. These types of monstrous situations arise when your ex has successfully (or unsuccessfully) accused you of violence, abuse, molestation, kidnapping, drug or alcohol abuse or
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something else heinous. It seems to be a strange paradox that mothers who run off with their children do not get saddled with supervised visitation and fathers whose ex-wives accuse them of molestation are. Each of the various accusations or charges needs to be dealt with individually'f.
Do You Want the BIG EVALUATION? If your ex-wife commits physical abuse'", sexual abuse" or psychological abuse" on your children, you have every possible reason to go for sole custody. Unfortunately, convicting a woman for such crimes is very difficult, given the current political state of affairs in which men are blamed for everything from hurricanes to cancer, and the literally billions of excellent things that they are responsible for, which includes most science, invention, discovery, literature, art, etc., etc., are ignored. Expect to find yourself ignored if you present anyone, especially your mediator, with less-than-conclusive evidence of one or more of these types of abuse. However, with the first two, if you allege it, there is supposed to be something done about it. With the last, you may just get a hearty laugh. One chance you have of preventing psychological abuse is to have the family evaluated by a thorough evaluator, usually a psychologist specializing in custody questions. If you get the wrong person to do this, another of the great mass of politically correct people who know answers to questions before they are asked, you will get nowhere. However, with luck and perseverance, you may find one who can help. In this case, you must get your mediator to recommend that a full-scale custody evaluation be given; otherwise it is unlikely that you can arrange for the court to order it. You will need to first establish your credibility with the mediator. This means having evidence and refusing to let her ignore it. You simply keep asking how she can ignore the possibility of abuse, over and over until something is done about it. Secondly, you will need to establish your justifications for the evaluation, without reflecting poorly on the mediator's ability to spot psychological abuse. To do so, make yourself aware ofthe phenomena and the jargon by reading about it, start documenting occurrences, and then when you have collected enough, go to the mediator and try to get it. Unless there have been multiple interviews with the mediator, it is not very probable that you will be able to get her to recommend a full-scale evaluation. However, keep trying as it is perhaps one of the very few ways of rescuing your children from abuse.
12
13
14
IS
See See See See
KiDDS KiDDS KiDDS KiDDS
Note Note Note Note
13, "Rotten tricks" and 76, "Sleazy tricks". 94, "Reporting abuse". 100, "Preventing child sexual abuse". 31, "Psychological abuse - the invisible crime ",
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Questioning the Custody Mediator
If you have a chance to review your mediator's custody recommendation, and you don't like it, you can fight it. The first avenue, ofcourse, is to try and go back to the mediator to figure out W]lY she chose that particular recommendation. This questioning is not the same as what you would do later in the case, when you would cross-examine the mediator in court Questioning is done informally, usually in the mediator's office or wherever your interviews took place. Your lawyershould he allowed to participate, if you have one. It 15 also not a deposition, which is a formal interview process in the mediarors or your lawyer' s office, with a court-approved recorder present to take notes or electronically record the questioning and to later certify that whatever is told to the court is actually what was said. The basic point of the questioning is to find out the bases for the rec-Ommendation, and, hopefully, to show the mediator that she does not have firm enough ground to refuse your requests. What you must do is take the recommendation apart, and follow the threads of justification down to items of evidence that you can then dispute. Remember that biased custody mediators deal w.ith fathers on a daily Mediators often act very sad basis and get pretty good at deflecting their inquiries, distracting when they deny you custody. them, making them feel like heels, convincing them they don't have It's almost as jf they have to a chance for custody, distorting evidence and coming up with nicesuffer, not you and y.our sounding justifications fOT what they recommend. But truth is children. The purpose is to stronger than bias, and persistence and preparation can payoff. have you teave quietly and not Let's consider an example. maketroubte.
is the bookshelf full of feminist books instead of books that give an equal view of the two genders? If so, you have a clue as to her .hidden opinions. Feminist books promote the .concept of women as victims instead of treating all . people as individuals, without sexist presumptions. An empty bookshelf may mean a mediator who doesn't read much, [that is a different problem], or one who has removed her library to prevent clients from using it to determine if they're about to be treated fairly.
TIP:
In the custody mediators office,
Mike and Jane

Mike and Jane were married for six years before Jane filed for divorce, on the grounds of incompatibility. They had two children, a four year old boy, Robert, and a two year old girl, Becky. The mediator, Patricia, had interviewed both of them twice, once together and once separately, and then had written a recommendation stating that "primary custody should go to Jane, on the grounds that the children are now in a stable environment and to alter their custodial situation would subject them to further stress at a time when they needed stability to recover from the divorce and adjust to their new situation. Mike
should have visitation of every other weekend, starting at Saturday morning at 9 am.... '
Mike had read somewhere that the main ruse for biased mediators to use in choosing maternal custody was the stability trap. Mike was requested to leave his house, by police officers that Jane called, on the grounds that he was violent, although Mike denies that he was ever violent towards anyone in his home. He left almost voluntarily,
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I,
.. ..:.:............ ... .... ~:: z:
trying to be cooperative, not realizing at that time that he was being set up for a deprivation of his children. Mike thought he was a cinch for custody, as he had been very close to the children, and was a much warmer person than Jane. Mike felt sure that Patricia would appreciate that young children need a warm person rather than a cold one. He was wrong. Patricia's recommendation had been delayed and Mike only received it on the morning of the hearing for temporary custody orders. However, he successfully argued that the recommendation was a surprise to him and he needed time to prepare a challenge to it, as otherwise he would be deprived of the right to a fair trial. His hearing was postponed three weeks, and Mike had an appointment scheduled with Patricia the very first day she was free. After some preliminaries, Mike got right to the point: "Patricia, I was startled by your recommendation. What were the grounds for your denying me custody? " 1 "Mike, your kids have been in the family home since they were born, and to ~i~~:;:O::;t~:~;I:~::. inJz~;rn::~ :~a:a::n:ow:e~:~ ~J::~nd get used to one situation. Besides, they've been with Jane for the six weeks that you've been separated, and they seem to be doing well there. I met with them here for an hour the week before I made the recommendation, and they were happy and played well while they were here with Jane. " Mike checks for other justifications. "Patricia, are there any other justifications other that these stability arguments. Have you compared the two of us to see which might be better at parenting?" "That's very hard to do, Mike. Both of you seem to be fine parents. You both have good traits, although not necessarily the same ones. Nobody really knows what would make the best parent for any child" Mike tests Patricia for bias with a role-switching query. "If I had stayed in the family home with the kids, and Jane had moved out, would you have recommended that I get custody? " "Well, you have to realize that there are many factors involved in even a temporary custody recommendation. I really haven't considered that hypothetical situation. Generally it's enough for me to do to make recommendations in real situations where I have access to everyone in their real situations and can evaluate how they're doing there. " Mike checks for negatives. "Is there anything about me that you have determined would show I was a less fit parent than Jane? " "Well, as I said, everyone is different, with different traits and different capabilities. " Mike persists. "Please answer my question. Is there anything about me that you have determined that would show that I was a less fit parent than Jane? "
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"Well, it's not a bad trait, of course, but you are more wrapped up in your work than Jane is. She has less distractions because her job is less stressful and can therefore give more attention to the children. " "How did you determine this?" "Well, I talked with you both about your work and your interests, and it was clear that Jane was less work-directed than you. Please don't take that as a criticism as there's nothing wrong with that, it's just one way in which people differ. " "Exactly what was said by Jane and myself that proved to you that I would devote less attention to my children than Jane would? " "Well, I don't remember the conversation exactly, but that was my general impression. I don't record the interviews, as I just want to stay open and aware of impressions and feelings. " "Can you remember any single question you asked or ar.y specific comment we made that led you to that conclusion?" "Well, you talked about your job a lot and Jane didn't. " "How can you conclude that someone who talks about their job isn't extremely interested in their children and someone who doesn't talk much about their job is? That seems to be a mental leap that has no supporting data. Some people are simply intense and are interested in both job and children; others are less intense and respond less strongly. Besides, were you careful to ask each of us exactly the same questions, or did you, perhaps accidentally, ask me more about my work and ask Jane more about the children? I noticed when we had the first meeting all together you directed all your children questions to Jane and ignored me. " "I try to cover the same topics with both parents. " "My point is, were you careful enough to make sure that you asked exactly the same questions and followed up exactly the same way? Did you record your questions, for example. " "I already said I don't record the interviews so I can be more aware of feelings. Children respond to feelings, Mike, not logic. " "True, Patricia, but we adults need to be governed by logic and reason so we make the right decisions instead of allowing biases to creep in. We don't want that to happen, do we? " "Of course not. " "So, since you are basing this lopsided custody recommendation on the fact that I talked more about my job than Jane did, tell me how you were careful to make sure you posed exactly the same questions in exactly the same way, since you didn't record anything. Memory sometimes slips up, you know. Do you have any evidence whatsoever to back up this contention, and do you have any studies that show that people who talk about their jobs more in interviews make poorer parents?" "Mike, you're making too much out of this. It's only a temporary order until more investigations can be done. "
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Mike was already wise to the "temporary orders aren't important" ruse and turns the tables on Patricia. "If they're not important, would you be willing to change them to grant me custody? " "No. The children are settled in their family home now, and there's no reason to disrupt their lives any more. Jane is doing a fine job as custodial parent. " "Let's try and finish up our discussion on the non-stability issues. Do you have any evidence whatsoever or any studies or anything at all that shows that I would be a less fit parent, based on the extra minute or two that I answered your questions about my work? Anything substantial at all?" "No. There was no time to do any substantial review. Do you know how many cases I have to do every month?" "So, Patricia, the only justification for not granting me custody is that I was cooperative enough to move out of the family home. Is that true that being nice and cooperative means you don't get custody?" "That's a funny way to put it. We're trying to concentrate on the children here, on their best interests. You seem to be trying to justify your own parenting or something. " "That's also a funny way to put it. Don't you want the parent who is most fit and would provide the children with their best welfare to be custodial parent? I sure do. " "You haven't said anything that would indicate that you are the best person to take custody. What's wrong with Jane having her children? After all, she bore them!" Mike knows that "She bore these children" is a clear code for a hidden maternal preference, as was the "her children" comment. Mike had suspected Patricia was a closet bigot ever since the initial interview, but like most bigots, Patricia believed she was as unbiased as could be. However, she was sliding around from topic to topic and making it hard for Mike to pin down her reasoning about the custody recommendation. ., He recognized that he had to work hard to get straight answers. "Patricia, let's try and sum up what we have discussed so far. You have no evidence and no data that would indicate that I am a less fit parent than Jane, right?" "I have some intuitions. " "You have no evidence and no data, right?" "Yes, right. " "You have based your recommendation solely on the fact that Jane has had custody of the children since I voluntarily moved out, right?" "No, I based it on my intuition as well. I have many years of experience in
doing these evaluations and I could recogni:ze that the children were doing as well as could be expected in their current living situation. "
"Exactly how did you develop that intuition about preferred custody arrangements? "
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"By working with families for over ten years, right here. " "No, Patricia, how did you make sure your intuition was correct and not simply random or worse: biased. Did you do tests to see if going with your intuition in some cases and against it in others led to a difference in some measurable results? Or did you take intuition training of some sort from a recognized trainer and pass some intuition tests? Or is intuition part of your university training, and if so, in what course is it taught and what was your intuition grade? " "Intuition is just something you develop from experience. " "But how do you know it's correct, in any case and specifically in this case. Are you going to tell the judge and put into the public record that you have nothing to base this recommendation on except intuition? " "No. As I wrote into the recommendation, the status quo is working fine and should be continued. " "In other words, if one parent cooperates in leaving the family home, that parent loses custody, all other factors being equal. The one who doesn't cooperate gets to be with their children almost all of the time and the nicer one gets some visitation days. Sort of a 'Nice guys finish last' theory toward custody recommendations, isn't it. " "Mike, I said that was a funny way of putting it. We are simply looking at the children's best interests. " "Patricia, what hard evidence, studies or something else, do you have that shows that children do better when the parent who is more cooperative is denied most access to the children? Or for that matter, that six weeks of one parent is enough to set up an immutable stability that has to be maintained? " "It simply stands to reason that disrupting children's lives less is better. I don't know of any studies like that. " "Wouldn't it be more stable for the parents to continue their pattern of years rather than try and force a short interval of six weeks to become the children's new standard. " "Mike, this is only the temporary order!" "Patricia, we both know, and you know I know that temporary orders are turned into permanent orders in the vast majority of the cases. Let's not waste each other's time by repeating this stuff about 'It's only temporary '. If you believed that, you wouldn't make such an overwhelming concern out of the six weeks change that the kids have gone through and would put back the earlier status quo as much as possible. Why don't you recommend a 50-50 split? I could live with that, even though I am much more used to having a larger portion of their real contact time. " "Mike. you know Jane would have to be consulted about any change in my recommendation. Why don't you go and try and work out some alternate arrangement with her and then come back to see me. "
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Mike was wise to the shedding of responsibility trick Patricia was pulling. The longer this stretched out, the stronger her stability argument would become. "No, Patricia, we have already tried to come up with a mutually acceptable plan. We need someone like you to come up with a fair and equitable plan. There doesn't seem to be any grounds for anything other than an even split, does there? " "I suppose not: I'll change my recommendation to an alternate week one, although the judge may not accept it. It's not what he's used to hearing from this office. " "I'm well aware of that. Thanks. I'll come by next Monday to get the new recommendation. " With that, Mike realized that he had gotten as much custody as he could at this time. He not only put what he considered the better parent in contact 50% of the time, but he also cut down on the opportunities for the court to let his spouse take him to the cleaners financially". To sum up, Mike worked hard taking apart Patricia's claims and found that Patricia had no substantial bases for her recommendation. It was just a standard recommendation that she had made countless times over the last ten years. She was used to giving up to someone who pursued a logical line of reasoning, as she was quite nervous, even now, about being cross-examined in court and made to look like a public fool. Evasion in informal questioning is one thing, but recording it and allowing it to be published or distributed is another. Besides, it was quicker to compromise.
PZlul Zlnd JeZlnnie Let's consider another example. Paul is the father of a seven-year old boy, Paul Jr., and is contesting the recommendation for primary custody to be given to his ex-wife, Jeannie. He was left with weekend visitation rights. The custody mediator, Rhianna, wrote that "Paul has a history of alcohol abuse and the safety and care of the children would be more secure by an order of primary custody to Rhianna, with joint legal custody equally to both parents. Paul should have visitation on alternate weekends, from Friday night at ..." Paul's drinking problem had been serious and he had gone through Alcoholics Anonymous five years ago. Since then, he had no further problems with it and did not drink. He wanted custody because his wife was prone to sarcastic, vicious criticism and he had seen how little Paul had been frequently subjected to it and had reacted to it by withdrawing and acting depressed. Paul did know, however, that psychological abuse by mothers is not considered important by most custody mediators, and he wasn't going to try and use that as an argument for custody; he felt it would simply be turned against him and the mediator would label him as vindictive and hostile and therefore less fit for custody. He took the "no grounds" approach.
16
See KiDDS Note 69: "Why Women Must Have Custody".
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"Rhianna, what did you base your statement about a history of alcohol abuse on? Losing custody of my children has hurt me tremendously, and I think it is bad for the children to be separated that much from me. " "You told me about it yourself, Paul. Don't you remember in our second interview that you admitted the problem. You're not going to contradict yourself now, are you? I certainly remember everything you said very clearly. " Paul recognized the submerged hostility in Rhianna's assumption that he was going to make some foolish denial of what he had said earlier because most men are liars and fools. Paul made up his mind that no anti-male bigotry was going to make a mess of his child's life. He also realized that he was right in not trying to discuss Jeannie's psychological abuse. It would not be received well. He went on to get the actual recollections that Rhianna had. "Rhianna, exactly what do you remember of that discussion? " "I remember that it was so bad that you had to go to Alcoholics Anonymous to dry out. People who do that aren't just social drinkers. You're not going to try and deny that are you? " "Do you recall when that happened? " "I didn't write that in my notes, but it wasn't too long ago. I wouldn't want to be responsible for creating a situation where a heavy drinker was in custody of a child I hope you can appreciate that it's nothing personal. Wejust have to do what's best for the child here. Please try to accept that. " "Why don't you write down that it was five years ago. That way your notes will be more complete. You should also write dawn that I haven't had the slightest problem since then. Does that make a difference? " "Paul, I'm sure you're telling me the truth, but I can't take any chances. There is certainly the possibility that you have had relapses or could have in the future. You see that, don't you? Why are you persisting in this? We need to work together for the Paul Jr. 's best interests, even if the parents can't get what they want completely. You'll be seeing him frequently and .. " Paul cut offher long and useless monologue. One tactic of biased custody mediators is to use up the interview time prattling on about generalities so that they don't have to get down to specifics. "What evidence do you have of any relapses in the last five years. " "I'm sure you wouldn't tell me about them if they did happen. Jeannie s)ls you disappeared a lot of evenings over the last couple of years and she thinks it was the old problem coming up again. What evidence do you have that it hasn't happened? " "What grounds to you have for presuming that I'm'covering up something? Do you have the slightest bit of evidence or any facts whatsoever for this? "
.
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"Jeannie let me know you lie quite a bit at home, about money especially. " "Tell me about how you verified that. " "I can usually tell when someone is lying. Jeannie is seriously concerned about her son and about what would happen to him if you had much time with him. You may not think alcoholism is a big deal, but... Paul picked up on another indicator of bias -- Mothers are seriously concerned about their children, fathers are not -- but he let that pass and tried to bring Rhianna back to the original claim she made. "Wait a minute, Rhianna. Let's try to stay on one topic for a while and get something resolved. You are actually claiming to be a human lie detector? Have you been tested and proven this marvelous ability to anyone? It would certainly be useful in police work if you have it. " "There's no need to be rude, Paul. 1 have a job to do and 1 'mjust trying to do it. Jeannie warned me about how hostile you can become, and I 'm telling you that 1 'm not going to put up with it here. " "Please answer the question about your claim to be able to detect lying. How did you establish this as a proven capability? What testing have you gone through? " "That's not important. What's important is the welfare of your child and you are certainly don't seem to be interested in that at all, just in proving that you're just as good as Jeannie with Paul Jr. You need ... " "Are you basing your recommendation on Jeannie's unproved allegations of relapses of alcoholism, Rhianna? If not, what are you basing it on? " "I'm basing it on the welfare of your child, Paul. That's what counts here, not your alcoholism. " "Are you basing your recommendation for denying me custody on Jeannie's unproved allegations of relapses or do you have some other evidence? " "1haven't had a private investigator follow you around to see how much you drink. 1 just have to play it safe. " "Do you have any evidence at all for your claim that alcoholism is a problem in my seeking custody? " "If you mean photographs or testimony, no. But 1 said, I'm just playing it safe in case it might recur. There's no point to risking Paul Jr. to prove you're cured, is there? " "Depriving Paul Jr. of his usual contact with his father hurts him for sure. Don't you know that fathers are very important in a child's life? Don't you know that he and 1 were very close and spent more time in actual warm contact that he did with his mother? You seem to be inventing some far out possibility of an old problem recurring while you are ignoring the reality of little Paul's suffering the loss of his father. Aren't you aware of all the studies that show that both parents need to playa role in their child's life? You have nothing to base your recommendation on, no data, no evidence, nothing but a willingness to believe a mother's allegations about an ex-spouse she is angry with while ignoring the needs of the child. You need to reorient your thinking and work to maintain the
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situation that our Paul grew up in, which isfrequent contact with both parents. Do you have any real problem with 50-50 joint custody? HI'1l think about it again, Paul, and let you know. Otherwise, .. "Please answer the question, Rhiarma. At this time, do you have any real problem with 50-50? I mean anything substantive and solid that a judge might consider real and not just speculation?" 'There hasn't been any extensive evaluation, Paul. 1 can't predict what might come up there. Why don't you wait until there has been time for that to occur, and then we am look at the question again. "I have 710 problem with an extensive evaluation as long as little Paul's life is not disrupted by a temporary order taking his father awcryfrom him. Can you give a 50-50 recommendation and ask for a further evaluation? If not, why not?" Rhianna just sat quietly for a minute. Then she caved in.
JJ
Paul eventually got 50-SO, but only Any excuse is a good excuse after a further interview to convince Rhianna when your mediator is looking that he was not going to fall for the usual for something to base a custody denial on. tricks she had for taking children away from Don't bring up any aid problems in your fathers on flimsy pretexts. With the usual background -- just treat them as you should, situation of fathers too shocked by the divorce something in the past that is of no relevance to to be able to challenge custody the custody decision. If asked, don't deny it recommendations, Rhianna got used to the but be frank and dismiss it. If the mediator rule, "Any excuse for maternal custody is a keeps probing, looking for the excuse she good excuse" Paul proved to be an needs, make sure you inform her of the facts of exception. For him, joint custody was only how the problem is in the past Demand to the first step in getting Paul IT. away from the know why she is treating it as important if she psychologically abusive situation with Jeannie. persists in mennoninq it. Insist on some data, It allowed him to be there to comfort his son some references, some solid basis for her and try to minimize the damage from the using it to undermine your custody request. abuse until a better situation could he found. Don't let her get by with painting you with a 50% custody gives a father a lot of time to problem that is solved and over with. share with his child and to work to build up the child's strengths to deal with an abusive mother.
TIP:
~~lInand ~u.ra
A different situation arises with a timid mediator. Susan had been a custody mediator for three years, and after a few experiences with the judges in her county, she soon learned that maternal custody is the safe recommendation. Getting attacked in open court in front of an audience, with no practical opportunity to defend herself, had left her with a clear mission: "Don't waste the court's time by trying for fathers to have custody when the mother was available." Sam and Sara came to her interview and she was able to quickly realize that Sam was a capable person, able to organize a home while still keeping
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up with his work. Sara was an obvious airhead, and Susan worried that their 8 year old daughter, Mary Beth, would not be cared for well in Sara's custody. However, her concern for the judge' 5 reaction overcame her sense of what was right. Susan's written recommendation was for Sam to have visitation on alternate weekends and every Wednesday overnight. \lVho do you want to be When Sam got the recommendation in the mail from his lawyer, he was outraged. The last thing he your child's role model: wanted for his daughter was for her to grow up like Sara, without enough sense to get along in the world. you or your ex? He knew that children adopt their parents as role models, and with so much example from Sara, Mary Beth might turn out to not use her capabilities at all. Sam got another interview with Susan right away. "Susan, what are you doing with this recommendation? Sara shou ldn 't be entrusted with Mary Beth. You spent enough time interviewing her to know Mary Beth is better off with me. You know I asked for custody. You know I drew up a parenting plan that covers every aspect of custody. Why did you do this?" Susan knew that if she simply told Sam about her fears and about the judge's prejudices, he might use it in court and she would get into much worse hot water than she had before. Susan's safe decision was to be evasive. "Sam, don't worry so much. You don't want to get upset over nothing. Sara will do fine with Mary Beth. MCllYBeth is already eight and she seems a quite capable child 1don't see any reason to think something will go "wrong. What's the problem with leaving Mary Beth with her mother? Just because you and Sara split up doesn 't mean you have to try and deny her everything she wants. "Please tell me why you made this recommendation, Susan. " "Like 1 said in the recommendation, Mary Beth loves her mother and seems to be doing well with her. 1don't see any problem with Sara having custody. And I don '1 see why you do, other that this marital infighting. That's not a justification for custody." "Did you determine that Mary Beth doesn't love me? " "No, of course she loves you. She just wishes you two wouldn't argue around her. And she ... " "Did you determine that Mary Beth isn't doing fine when she has been with me?" "You're both capable parents, Sam. Don't be insulted by this. Wejust have to make a determination one way or the other and one parent has to be custodian and the other visitation parent. Is there a problem with the visitation schedule? We can make changes if it's not convenient for you. " "Since Mary Beth loves both of us and she is doing fine with both of us, why did you select Sara to be custodial parent? "
r
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"Sam, why don't you take some time to adjust to this and see how well it works out. If any problems arise, we can make changes in the future. " Sam knew about the "It's only temporary" ruse and continued head-on toward finding out the facts. "Why did you select Sara to be custodial parent. " "Why are you so hostile. That hurts Mary Beth and it doesn't help you at all. If you .. " "Are you going to answer my question? Why did you select Sara to be custodial parent?" "It seemed to be the right thing to do. Sometimes you have to go with instinct in making these recommendations. " "What exactly did your instinct tell you? " "That Mary Beth would be fine with her mother. And I really think she will be. " "Did your instinct tell you that Mary Beth wouldn't be fine in my custody?" "No, I just had to make a choice. " "So you have no justification for choosing Sara over me for custodial parent. Is that right?" "No. Sara isn't as hostile as you are, so things would be calmer for Mary Beth with her mother. " Sam recognized the hostility ruse, another favorite trick of custody mediators. Ifa father doesn't fight for custody, he doesn't get it. If he does, he's hostile and that's an excuse for denying him custody. "Susan, what hostility are you talking about. Hostility toward Mary Beth? Have you observed that?" "No, Sam, but if you're hostile here you may be hostile at home with your daughter. Please try to consider her instead of yourself in this. She's just eight years ... " Sam saw the shaming attack coming and deflected it immediately. He was confident in what he was doing and was sure he wasn't working out of selfish reasons. He had spent many hours considering the possibilities for ~ custody, and was sure of what he wanted and why he wanted it. "Please, Susan, let's try and get down to the essentials in this hostility rap you're pinning on me. Just what constitutes hostility in your eyes?" "Oh, arguing in front of Mary Beth for one thing. " "How many of us were doing that arguing?" A short silence by Susan as she realized that it took two to argue and she had no clue as to who started the arguments or who kept them going or anything else about them. "Maybe that's not a good example. Arguing here is certainly something that only you are doing. " "Did you deny Sara custody to see what would happen? Maybe I argue with you because I am much more devoted to Mary Beth and care a lot more than Sara about her future. Did you consider that?"
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36
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"Tm sure that Sara is very interested in {ary Beth just as you are. Td bet she wouldn 't argue like this for custody, especially when it is only a temporary order. n Sam sees a great opportunity for a role-switching question. "Great idea, Susan You change the custody recommendation to custody for me and visitation for Sara, and see if she argues with you. If she doesn't, it means that arrangement is OK. If she does, then your hostility argument is completely blown away. Sounds like a good test to me. n "J don't have time for any silly tests like that. J think that would be cruel, to make a phony recommendation to see what Sara says. '> "I wasn 't talking about a phony recommendation. I want you to recommend custody for me and let it stick. You have no grounds whatsoever for giving custody toSara. You really must know thai Mary Beth would be better cared for with me, mry'way. " '1can't just recommend CU!'J10dy to you. The judge would never accept that without some substantial and extensive background Why don't you accept this and wait until a longer period has passed. so we can see if any problems arise?" "If you need substantial and extensive background for your recommendation for custody for me, I can have it on your desk by 9 am tomorrow morning. Are you willing to go along with this? Every aspect of a comparison between the t'iVO of us is in my favor. "Okay. Why don 't you prepare that and get it to me. I'm not promising anything, but I'Il read it. e> "Just to make sure J understand you, you have not determined any substantial reason for granting custody to Sara, but you don't need a substantial and extensive background for that. To make the same recommendationfor a father, you need one. Is that right?" "Why don't you just write it up and then we 'II see what we can do, Sam. Don '1put me on the spot. 11's 110t going to do you any good" Sam recognized that he was making Save a minute at the end of the progress. With his detailed meeting to summarize what has write-up delivered the next been decided. That way it is less likely that you morning, Susan decided to risk will be surprised when you read the mediators giving a custody recommendation. Keep your summary short recommendation to Sam. It land clear. Don't depend on vagueness -- you flew through court as Sara willlikeiy see it interpreted against you, not for couldn't come up with any you. Say exactly what you think the agreement objections to the points Sam is and inciude any actions that have to be taken, made about organizational such as your agreement to provide something. capability, love and devotion, and lack of any objectionable traits. He got his custody from the judge who was either feeling generous that day> or recognized that Sam knew what he was doing. Perhaps he felt it wasn't worth the effort to deny Sam what he wanted.
TIP:
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Cross-Examining
the Custody Mediator
If you've seen enough lawyer movies, but haven't spent much time in the gallery in a real court, you may think that cross-examination is dramatic. The witness, who starts out defiant, gradually appears more and more shifty until finally, the cross-examining lawyer springs the key question, showing up the lies of the witness and winning the case. It isn't that way. It is a gradual process ofleading the witness to a conclusion that is supported by the facts andaway from a conclusion that is based on preconceptions and prejudices. Good cross-examinations are well-planned, but have an element of spontaneity in them, as the witness' answers can not be predicted in advance. If the custody mediator appears as a witness that you have called, your side's questioning of her is called an examination and the other side's questioning, the crossexamination. The judge may ask her questions as well. If you weren't the side that asked for her testimony in court, your questioning is called cross-examination. There is little difference between the two -- the point is to get out the fact that the decision against your custody has little basis. If you have a lawyer, you can expect that the lawyer will conduct the entire crossexamination. Many divorce lawyers do not do very well at cross-examination, although few admit it. It is certainly possible to hire a specialist for a half-day to assist in this, but this must be decided in advance so that the other side can be prepared to deal with it. Remember that the other side, i.e., your ex's lawyer, get to cross-examine the witness as well, and can attempt to lead her to the opposite conclusion or to shore up any holes in her reasoning that were shown by your examination. On the other hand, if you can't afford a lawyer, you should practice and practice with friends to get used to doing it before your day in court comes. Pick the cleverest, most evasive friends you have to practice on. In family law court, cross-examination can be formal or informal, depending on the judge's preferred style. Either way, being prepared is critical. Floundering around, trying to get the mediator to make a mistake or admit she is biased, is a sure bet for losing. The proper method is to probe at the recommendation to demonstrate just what is the basis for it. If the mediator is forced to admit her recommendation is based on nothing more than ahunch that your ex will be a better custodial parent, or that she had to pick something and she chose your ex to be custodial parent, you have accomplished your objective. If the mediator tries to retreat behind some scientific facade, you need to show that she does not understand the basis for it, that there is contradictory scientific work, or that probabilities do not make a case against you [why does she expect that you are like the average instead of otherwise]. You should have found out in your questioning of her in her office if there are any references that she expected to use. If instead, you were told that she didn't remember any, but then in the courtroom they get trotted out, you or your lawyer should explain that this surprise is uncalled for, that you expect that you should be allowed to review these references, that you asked for them and were denied them, and that you consider this important enough to have the case continued. Since that is expensive, you should complain to the judge, to the mediator, and to the mediator's supervisor that you have been forced to waste a day in court because she did not provide you with the information in advance. You should complain clearly to the supervisor, and ask for action
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to be taken on it. If you belong to a men's support group, you should let them know so that they can warn other fathers about this mediator's tendency to drop reference bombs in court. Alternately, you can ask that your case be continued for a short time while the mediator gets you a copy of the report she is citing. If it is not too long, you and your lawyer might read it over for an hour and establish that it is just some probability calculation, not anything definite, and that there is no reason to use it to deny you custody. You can then go back into court and make your concluding arguments or bring the mediator back in and show that the literature she cites is one-sided or not conclusive.
Changing Your Custody and Visitation Arrangements There is not much difference between the way you interact with a mediator to change arrangements and to set them up initially, other than the situation has been allowed to fester. In order to make a change, either before your trial and the setting of the permanent orders, or as part of a change for the trial, or after the trial, you go through the same process of meeting with the mediator and getting her to make a recommendation. The same requirements are needed for doing a good job, that is, preparation and background investigations, review of the typical dodges, rehearsal with a trusted friend, and the courage to stick up for what you believe in. There is one requirement imposed on you to prevent your going back over and over again to review the arrangements. That is the "change of circumstances" rule. In other words, something that affects the child has to change in order for the court to review it. Some possible changes of circumstances are 1. One of the parents moving 2. Change of schooling, especially start of schooling 3. Behavior problems with child, especially involving juvenile crime 4. Change of employment of one of the parents, e.g., unemployment 5. Physical or sexual abuse alleged or documented 6. Alcohol or drug abuse discovered or rehabilitation ends 7. Remarriage or cohabitation 8. Arrest or conviction of one of the parents, a stepparent or live-in friend There are many others, and some of these may be regarded by some courts as not grounds for considering a change of custody. The point to be made in your legal arguments to establish a change of custody is that some major aspect of the child's life is altered, or else some danger exists or has passed.
00
Summary It should be clear from the discussion above that preparation and planning is needed for even the simplest custody interview. There is no getting away from the fact that children's lives are at stake, and the decision that you permit to happen will result in more or less of a chance of success for your children.
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KiDDS Guidebook
Dealin9 With Your Custooy Mediator
39
There are serious risks. You may be risking your child's physical or mental health if you agree to put him or her in a dangerous position, such as in the company of a live-in friend of your ex who has threatening tendencies such as alcohol abuse. The situation is even worse if your ex 1s promiscuous and exposes the children to a series of strangers who may have any sort of perverse tendencies. Having at least joint custody allows you to monitor your children and gives them someone they can trust to complain to. Psychological abuse is extremely difficult to resolve. A childhood full of psychological abuse is almost certain to destroy your child's life, and you need to establish that tins is not happening before you can let the custody situation rest. You need to put an end to it, and custody is possibly the only way. Role-modeling is critical. Allowing your child to grow up in the company of a role model, i.e., your ex as the custodial parent, who is nothing that you would want your child to imitate, is tantamount to signing up for the child's emotional execution. Adults rarely get over the problems that their parents inflict upon them as children if they are extensive enough, last long enough, and are not reduced with an abundance of love and attention. A year of a problem or even a few years can be overcome with care and thoughtfulness, although curing takes longer than causing. But the curing can only happen if you have continuous contact with them 10 do it. A weekend does not make up for a week. :Maintaining contact is difficult with only visitation. Fathers who assume that : everything is going to go well and dial their ex will not block visitation for the rest of their children's youth are simply gambling with their children's lives and their own happiness. People change. Ex-wives change. Your children may resent your having given up 011 seeing them continuously and never forgive you. Don't allow your children to have poor adult lives because you are too overwhelmed by court rituals and biased but clever individuals. Don't allow anyone in the court system to use you to further their own psychological foolishness. You are not the scapegoat for anything wrong in your mediator's life nor are you responsible for any social problems. You are a father trying to do the best for his children. Remember, in court it is often true that he who lasts longest wins.

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