Having dealt with hundreds of Colorado custody cases over the years, I
am well versed in what is needed to effectively prepare for and litigate
battles regarding visitation and decision making. The key to handling
custody matters truly rests with preparation. However, this preparation
is not just related to your final hearing. The preparation begins from
day one of the attorney/client relationship. It involves changing behavior
patterns, changing ways of thinking, preparing to deal with the custody
expert(s) who may be involved in your case, changes in terms of how you
speak to your children, and more.
We have all heard the catchy sports proverb, “there’s no ‘I’
in ‘team’.” There should also be no “i”
in “attorney/client relationship,” though linguistically there
are technically three. By this, I mean that preparation in a custody case
truly takes a joint effort. The skill of phenomenal Denver custody lawyers,
with great experience and courtroom skill, is only going to go so far
without the input and assistance of his or her client. Attorney and client
should truly be a team in preparing to go through the custody case.
Over the years, I have arrived at the conclusion that the best results
are gained for a client in a custody case when he or she is involved from
the ground up in terms of preparation. As such, I strive to inform clients
of various things he or she can do to help. I also make it a rule to try
to prepare my clients for dealing with custody experts and getting ready
for their final hearing. Below are some of the tools I employ, which are
ultimately designed to help you, the client:
1. Writing out your story: A Colorado custody case is not just as simplistic
as “I’m a good mom” or “I’m a good dad.”
Each case has a potential history to it. There may be things that were
said or done related to the child, with the child, or with other people
that may matter. The littlest whiff of information may have a bearing
on the outcome of a case. Perhaps I am being a little melodramatic, but
some fact from two or three years back can be pivotal. I see it. As such,
I will often ask my clients to write me out their “story”
or a chronology of the good, the bad, and the ugly related to the raising
of their child. This chronology should include statements or actions of
the other party, important events in the child’s life, areas of
concern, etc. I will generally ask people to go back three to four years.
I don’t need to know about Timmy’s, who is 12 years old, potty
training at age 4. I do need to know about his dad yelling at him and
calling him mean names for getting a C on his spelling test at age 10.
By putting past memories related to the child on paper, particularly in
chronological fashion, a client is forced to organize, conceptualize,
and contextualize his or her thoughts. This can assist the client with
getting ready to testify in court or discussing the case with a child
and family investigator or parental responsibilites evaluator. Additionally,
it provides me with a written summary of facts I may need to be aware
of or may use to the client’s advantage. On a financial note, I
often say, “I can read in 20 minutes what would take us 2 hours
to talk about.” Though I would love to talk to my client for 2 hours,
I would rather save him or her money and receive the information straight
from the source, with the ability to go back to it for reference as needed.
2. Keeping a journal: As indicated above, the past history regarding a
child is important. Recent or current history matters as well. Custody
cases can take as much as a year, depending on the county. A lot can happen
during that time period. It is important to have clients keep a journal
of things that occur while the case is pending. This should include behaviors
or things said by the other party, as well as the child. A journal might
be admissible in court. It might be shared with a custody expert. If nothing
more, it is a way to record newer occurences which I, the attorney, might
find relevant. I always instruct clients to make sure they keep the journal
secured, such that neither the other party, nor the child, can get to
it. The time period in which a
divorce or custody case is pending can be emotionally charged. This may be a good
time to record events related to your ex behaving badly purely out of
the motion that comes with this type of litigation. As with the chronology,
the keeping of a journal may also help save money on attorney fees.
3. Saving texts, e-mails, and on-line postings: In this day and age of
electronic, instant information, people text, e-mail, and post information
probably more so than speaking. This can be particularly true when you
have two people engaged in an ugly case, both of whom have little desire
to speak with each other. Human nature often leads to people stating nasting
or damaging things when embroiled in a custody battle. Once a text or
e-mail is transmitted, it can’t be taken back. The content is preserved,
ready for use in court. Though the other side could certainly deny that
he or she said something in a face to face coversation, there is no hiding
that which is put into writing. Social networking sites, such as the giant
with the recent poor IPO performance, should also be reviewed, presuming
access can be legally gained. The other side’s wall or postings
can be full of relevant information related to your custody case. Save
those e-mails, preserve those texts, and print out those walls or postings.
I ask clients to do these things, with the hope that some tidbit of information
helpful to us when it comes time to set foot in court will arise. This
should be an on-going endeavor while the case is pending. Of course, one
should keep silent in terms of not letting the other side know what you
are doing in terms of preserving this information. There is nothing greater
to family law attorneys than being able to use what we call in evidentiary
terms a “statement of a party opponent” in the courtroom.
In essence, you can use the other party’s words against him or her.
4. Gathering outside information: In some custody cases, issues can arise
related to topics such as school performance, police interactions, or
medical/mental health issues related to the child. In these cases, the
attorney, or the custody expert, will likely need to see various documents.
It is helpful to identify the issues early on. Once done, your attorney
will then be able to ascertain what various documents might be needed.
In most cities or counties, people can get police reports directly from
the relevant department. Grade, attendance, and other school related documents
can be gotten by any parent from a school. Medical and counseling records
should also be easily gotten by a parent, depending sometimes on the age
of the child. Once it is determined that outside documents are necessary,
it can be helpful to get the client started with procuring those documents
right away. It is better to know things sooner rather than later. One
must keep in mind that some documents, such as police reports or medical
records, may necessitate ultimately subpoenaing the documents and/or the
person who issued them. This relates to authentication and admissiblity
issues which I will not get into at this time. Other documents, such as
report cards, will generally be admitted by the court without issue. Documents
which might otherwise be inadmissible in court may come in if they have
been provided to your custody expert and are part of the basis for his
or her ultimate opinion. Having the client try to initially obtain the
types of documents referenced above can also save on costs. Attorneys
and paralegals cost money; subpoenas do, too. With documents available
to the public, better to save the client money and have him or her go
down to that police department to get that report.
5. Preparing to talk with experts on the case: As indicated above, some
cases will involve the use of a custody expert, either a child and family
investigator or a parental responsibilities evaluator. These are neutral
third persons whose function is to investigate the relevant aspects of
a custody case and report to the court. For further information as to
these experts’ functions you can refer to one of my prior blog posting
on the subject of CFI’s and PRE’s.
Over the years, I have come to believe that every word, every move, and
every fact in a custody case has the potential to affect the ultimate
outcome. When experts are involved, it is extremely important for the
client to know the right things to do and say with the expert. It should
be noted that we, as Denver family law attorneys, do not generally get
involved with substantively dealing with the CFI or PRE. They are not
investigating the lawyers. As such, the primary burden of dealing with
the expert rests with the client. Therefore, it is vital for the client
to be prepared to interact with the custody expert. A client should be
informed as to the expert’s function, and the general methodology
he or she may employ. A client should know what to say or not to say.
The client should also have a grasp of what might matter or be relevant.
The client should be informed about providing documents to the expert
and how written communications with him or her may matter down the road,
in court. I have seen countless cases in which the other party, even with
an attorney, shoots himself or herself in the foot by saying and doing
all the wrong things with the custody expert. At times, I am truly shocked.
Though I would like to presume that all attorneys take the time to prepare
their clients to meet with the custody experts, I know that presumption
is wrong. In my cases, I generally ask my clients to set a time to speak
with me roughly a week or less before their first interaction with the
CFI or PRE. Though I cannot change the facts as they exist, it is very
rare that one of my clients blows it when talking with the custody expert.
With any of the preparation tools set forth above, communication between
attorney and client is the key. On the attorney’s end, it is important
to know what must be conveyed to the client to effectively employ these
tools and obtain the desired information or results. For the client, don’t
be afraid to ask your attorney questions. Don’t be afraid to raise
concerns or point out areas which you believe need to be looked into.
Help your attorney as he or she helps you. Being an effective team can
greatly help in trying to obtain the best possilbe outcome in your custody matter.