CAN -- AND SHOULD -- MY CHILD TESTIFY?

If a child is old enough to express a preference, the court must take it into account.  A child over the age of six is generally old enough to express a reasonable preference.  Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991).  A child’s stated preference does not automatically outweigh the other best interest factors. Treutle v Treutle, 197 Mich App 690, 694; 495 NW2d 836 (1992).  In fact, a change in a child’s preference regarding the custodial parent will rarely justify revisiting a custody determination because

““[t]he preferences of the children may be too easily influenced by the break-up of the marriage and competition for their love between the parents. If the children’s changed preferences required the grant of a motion for a new trial, the courts would be encouraging the parents to use their children as pawns in the marital break-up. This situation would place undue emotional pressure on the children and parents alike. We will do nothing which might encourage immature parents to use their immature offspring in a high stakes games of psychological roulette.” Curylo v Curylo, 104 Mich App 340, 349; 304 NW2d 575 (1981).”

 A stipulation of the parties not to interview a child is insufficient on its own.  “Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.”  306 Mich App 525; 858 NW2d 57 (2014).

However, an interview may not be necessary if the court is aware of the preference and takes it into account, or if the court determines that a child’s expressed preference could not override the other factors.   Consider Lambert v Farley, unpublished per curiam decision of the Court of Appeals (Docket No. 301646, June 7, 2011) (“given the trial court’s determination that this factor would not affect its evaluation of the children’s best interests in light of plaintiff’s burden, the trial court’s failure to interview the child does not require reversal.”) and Edge v Edge, unpublished per curiam opinion of the Court of Appeals (Docket No. 300668, August 23, 2011) (“it is abundantly clear that had the child expressed a preference, even for defendant, it would not have changed the court's ruling, given the court's overall statements and strong feelings on the matter of defendant’s hostility and the relationship of that hostility to the child’s best interests. Sinicropi, 273 Mich App at 182-183.”).

Calling a minor child as a witness in a domestic relations case involving the child’s parents is a red flag – it raises a question as to the competency of the calling parent (and his/her attorney) to recognize the danger to the emotional/psychological stability of the child.  The Court of Appeals has said that “courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to crossexamination.”  Surman v Surman, 277 Mich App 287, 302; 745 NW2d 802 (2007).  An exception to this was identified in Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), which held that the court may allow a minor child of the parties to testify in open court with regard to alleged abuse and mistreatment inflicted on him by one of his parents.  This exception arises when the child is the only other witness to the abuse and refusing to call the child could deny a parent due process.

How Will I Know My Kids Are Safe?

If you have ever lost sleep wondering how to keep your children safe during your ex’s parenting time, you are not alone. This is, hands down, the most common parenting time question. Call it parental instinct, loss of control of plain distrust, parents do not like the reality that they cannot be there every minute of parenting time restoring harmony like a graceful dove -- they look like pesky pigeons instead. Nevertheless, you can negotiate a parenting time plan that includes protective provisions. Consider these provisions, which you can enforce in most states with a contempt motion:

For transportation: Each party should be responsible for providing and paying for transportation during that party’s parenting time. If necessary and due to reasonable work schedule conflicts or unavoidable and reasonable personal schedule conflicts, the party may select another properly licensed adult known to the child to provide transportation. The party must personally give advance notice to the other party when possible, and the party will have a first right of refusal to provide transportation instead.

For parenting time pick-up and drop-off delays: Parenting time must be exercised in a prompt manner. If necessary due to an emergency or a reasonable schedule conflict, a thirty minute delay is allowed. The delayed party must personally give advance notice to the other party when possible.

For communicating with your children during parenting time: Each party must provide the other party with a phone contact where the children and the party can be reached at all times during parenting time. The parties may not abuse phone contact privileges but may call the children at reasonable times.

For parenting time modifications: The parties should be encouraged to make arrangements to exchange parenting time to allow the children to attend special events and activities with extended family members and to cooperate with each other to allow the children to spend such other time with the other party as the children desire. However, where applicable for purposes of calculating child support, only ordered overnights will be considered.

Don’t Be a Scrooge - Tips for Holiday Parenting Time

It was like something out of a movie. She snuck out of the house in the wee hours of the morning, no coat and no shoes, children’s Christmas presents stashed in a gym bag, tiptoeing and teetering between open spots on the lawn to avoid making footprints in the snow – to barter the gifts for her weekly cocaine fix. She was my client. Some lawyers will tell you good lawyers never ask witnesses questions unless they already know the answer, but those lawyers (a) have never been in court with difficult witnesses and/or (b) have never had a client like mine. She told me her husband pawned the presents to buy his girlfriend a bracelet. To my shock, pressured with the penalties of perjury and the presence of an elderly judge peering at her through wide-rimmed glasses (I wonder which was worse), in the witness box she tearfully confessed that she swapped the presents for drugs. The children would have no Christmas – and my client would have no holiday parenting time. Needless to say, we lost our motion to modify custody.

It is natural for parenting time problems to escalate during the holidays. With all the hustle and bustle of shopping, parties, trips to Grandma’s house, and so forth, things are bound to go awry. Schedules get shifted. Messages to notify your ex that you will be late picking up your children get missed. And we all get a little greedier with our time – what parent would not rather have his children spend those special days with him than with his ex? The problem is, those with custody cases must let their greed gave way to judges’ orders, and that can be difficult – you might want to have more time, your ex to give you less.

Just what are you to do, and what are you not to do? First, obviously, do not swappresents for drugs like my client, lest you want to face a criminal case in tandem with your custody case. Second, focus on the overall goal in any custody case – to maximize your time with your children within the parameters of your order, the status of your case and the law. The holidays are just a snippet of your time, albeit an important snippet, and despite the stress you can navigate your problems to maximize your chances for winning your case. The goal here is to look like a Santa, not a Scrooge. Implicitly and explicitly, the law in most states says so.

The Law Says, “Don’t be a Scrooge”

In most states, “custody” means two things – legal custody and physical custody. Legal custody is the right to make your children’s important life decisions, such as educational and medical decisions. Physical custody, the most disputed, is the right to actual possession and time with your children. In Michigan, where I practice, the Child Custody Act requires family courts to presume that each child deserves an equal relationship with both parents, which includes equal time with each parent to cultivate that relationship. However, the court must try to maintain each child’s established custodial environment. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If an established custodial environment exists, then the party seeking an order modification must persuade the family court by clear, convincing evidence that modifying it (if the order would) is in the child’s best interests. Otherwise, the preponderance of the evidence burden applies. The same standards generally apply across the country.

Enter that oft-used term “child’s best interests.” This may seem like a nebulous concept devoid of any concrete meaning, and if you have a cranky, old-school judge who makes decisions based on preconceived notions it might be. To you, I strongly suggest consulting a lawyer in your state about the merits of an appeal. Most states define the term by statute. The statute in Michigan, for example, requires the family court to consider the following factors: 

            (a)        The love, affection, and other emotional ties existing between the    parties involved and the child.

            (b)        The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

            (c)        The capacity and disposition of the parties involved to provide the  child with food, clothing, medical care or other remedial care.

            (d)        The length of time the child has lived in a stable, satisfactoryenvironment, and the desirability of maintaining continuity.

            (e)        The permanence of the existing or proposed home or homes.

            (f)        The moral fitness of the parties involved.

            (g)        The mental and physical health of the parties involved.

            (h)        The home, school, and community record of the child.

            (i)         The reasonable preference of the child, if the court considers the    child to be of sufficient age to express preference.

            (j)         The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

            (k)        Domestic violence, regardless of whether the violence was directedagainst or witnessed by the child.

            (l)         Any other factor considered by the court to be relevant

Is there a Scrooge factor? Yes, there is. In Michigan, it is factor (j). Family lawyers call it by various names -- “the friendly parent factor” or “the cooperation factor” or “the willingness factor,” and so forth, depending on the state. When parents are about equal in all other respects, this factor is the case-ender. The trend is, the friendlier the parent, the better the outcome. In other words, Santas get more time, Scrooges less.

Mr. Waugh from Connecticut learned this lesson too late. The contentious issue in his divorce case, Waugh v. Waugh, 2003 Conn. Super. LEXIS 1028 (Super. Ct. April 17, 2003), was custody for his     four year old son. The evidence at trial demonstrated that shared physical custody could not succeed. Every witness gave examples of his and his wife’s confrontations with each other, both in and out of their son’s presence. They glared at each other. They ridiculed each other. They yelled at each other. They could not stand to be near each other. To support his request for primary physical custody, Mr. Waugh argued the family court should hold his wife in contempt for bringing his son to Christmas parenting time three hours tardy. The family court did hold her in contempt – but that barely made a dent in the case. She was the proactive parent -- she visited at daycare, arranged doctors’ appointments, refrained from hanging up her telephone in a heated dispute with Mr. Waugh, and, overall, made a real effort to allay her anger for the little boy’s sake. Therefore, she was the better parent for primary physical custody. A few hours holiday time missed one Christmas was of no moment.

Santa’s Tips

Mr. Waugh’s story is not to say holiday parenting time is irrelevant. It is relevant, but in context. I tell my clients to be like Santa –an expected part of the holiday agenda, but generous, too. You can insist on your holiday parenting time, but you must not let those few days overshadow your overall appearance in court. Try the following:

Plan ahead. Plan your holiday trips, transportation, events, and so forth, well enough in advance that everyone will know what you intend to do when. For those of you living in snowy states like Michigan, that means planning alternate routes to pick up your children, just in case the snow reeks havoc on holiday travel, too. If your holiday time is “liberal” or “to be arranged between the parties,” give at least two weeks notice in writing if you intend to exercise parenting time on a special day, unless your current order states otherwise. Always confirm schedule changes at least two days before your new time is to begin. Avoid last-minute changes.

Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your children can be reached in the event of a         last-minute schedule change. Keep a journal to document your concerns – Were your children late? Were they hungry? Did they have their coats and mittens? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory if holiday parenting time does become an issue in your case. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

Research your resources. Research the resources in your area for parenting time and custody enforcement. Parents are often surprised to learn that many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators exist. These resources are often less costly and more efficient. In Michigan, for example, parents who have missed visitation with their children may file a written complaint with the friend of the court, an agency-like body under the family court’s direction, to request make up time within 56 days of the missed visit. These resources are less intimidating and usually do not strain the parent-child-other parent relationship as much as a    full-blown custody battle before a judge does. You should consult with a lawyer in your state to learn about the resources available to you.

If all else fails, you may have to relent, ease the schedule, let a mix up at holiday time slide, if doing so means you will be the friendlier parent. Remember, the holiday time is about family and should be fun for your children. Do not be a greedy Scrooge bent on counting your hours, demanding prompt adherence to every T in your current custody order, out to destroy your children’s mother. Play Santa, and you very well may enjoy more time with your children.

MICHIGAN'S GENERAL PARENTING TIME POLICIES

No matter which form of parenting time occurs in a given case, there are

general issues regarding the parenting time that occur to a greater or lesser

extent in each of the forms. The issues must be addressed by one party or the

other in order to provide for the child(ren)’s needs during parenting time or

for the parenting time to occur. The following issues are those that were

identified as the most frequently occurring issues concerning parenting time.

A. Clothing

Each parent should be responsible for providing adequate clothing for

the child(ren) sufficient for the weather and events in which the child(ren)

engages. When occasional need or cost issues favor having only one

item, such as seasonal clothing, snow boots or swim wear, these items

should be transported back and forth with the child(ren). This can be

extended to particular toys or items for which a child(ren) has a special

fondness (a blanket, toy etc.). Any clothing that is with the child(ren) at

the beginning of parenting time should be returned clean, with the

child(ren).

B. Transportation

Unless otherwise agreed or ordered by the court, the parent who is exercising

parenting time should be responsible for all transportation. Transportation

can be provided by the parent or by a member of the parent’s

immediate family. All transportation shall be provided by a properly

licensed individual who has a properly licensed and registered vehicle.

All legally required restraints must be present and used.

When a parent has parenting time supervised by a third party, it is the

responsibility of that parent to ensure that transportation is supervised

as well. When supervised parenting time involves an agency or therapy,

it is the custodial parent’s obligation to transport the child(ren).

C. Contamination of Parenting Time

Neither parent should use the parenting time exchange as an opportunity

to exchange bills, discuss support issues, discuss parenting time or

to behave disrespectfully toward the other parent.

D. Child(ren)’s Medical Needs

A parent should provide all necessary medication and doctor’s written

instructions to the parent exercising parenting time. The parent exercising

parenting time should administer all medications according to the

doctor’s written instructions. If the child(ren) requires medical attention during parenting time, the noncustodial parent should obtain treatment

for the child(ren) and notify the custodial parent as soon as possible.

In the event special equipment is necessary for the child(ren)’s health,

the parent exercising parenting time should make arrangements to learn

the use of the equipment and arrange for the equipment’s transfer. When

a parent has supervised parenting time, the supervisor should receive

adequate training and instruction concerning any special needs the

child(ren) may have and receive all necessary medication and doctor’s

written instructions.

Parents need to discuss the general health care needs of the child(ren)

and to advise each other of illness and treatment requirements. It is imperative

that all knowledge of medical treatment be shared, for example,

in a situation where follow up treatment may have to be provided by the

parent who did not take the child(ren) initially to the doctor.

E. Preparing a Child(ren) for Parenting Time

The custodial parent should offer encouragement to prepare the child(ren)

emotionally for the parenting time. Neither parent should use the

parenting time as an occasion to cause concern or anxiety to the

child(ren). The custodial parent should use all reasonable means to ensure

that the parenting time occurs provided that no excessive force is

used. In general, the following are not appropriate reasons for denying

parenting time:

❖ The child(ren) has a minor illness.

❖ The child(ren) had to go somewhere else.

❖ The child(ren) was not home.

❖ The noncustodial party is behind in support.

❖ The custodial parent did not want the child(ren) to go.

❖ The weather was bad.

❖ The child(ren) had no clothes to wear.

❖ The child(ren) refused to go.

❖ The other party failed to meet preconditions unilaterally

established by the party allegedly denying parenting time.

❖ Religious reasons.

F. Extracurricular Activities

The parties should cooperate with each other when enrolling the

child(ren) in extracurricular activities to ensure that the activities do not

interfere with the ability of the child(ren) to exercise parenting time.

Neither the custodial parent nor the non-custodial parent should enroll

the child(ren) in excessive activities which serve to interfere with the

other’s ability to spend time with the child(ren). When supervised

parenting time is ordered, the child(ren) should not be enrolled in activities

that would interfere with the supervised schedule.

As child(ren) grow, they are involved in different activities. As their

developmental needs change, both parents need to be flexible with their

parenting time schedule and allow room for adjustment. Because continuity

in activities is important, parents must be willing to alter the

parenting time schedule.

Parents should keep one another apprized of all of the child(ren)’s activities

so the other parent has the opportunity to attend or participate in

the activity, even if the activity occurs during the parent’s off schedule.

G. Safety Issues

Each party is responsible to ensure the safety and well being of the

child(ren). All written doctor’s instructions including those concerning

exposure to plants, animals, smoke and other elements should be

followed. When supervised parenting time is ordered, the supervisor

should also follow such precautions.

H. Time for Parenting Time Exchange

An exact time for exchange should be established and agreed upon by

all parties. Neither parent should do anything to inconvenience the other

in the exchange of the child(ren). Arriving late by no more than 30 minutes

may be acceptable in exceptional circumstances, but should never

become the norm. A parent should be late, only when a legitimate,

unavoidable, reason exists for being late. A parent who anticipates

being late should contact the other parent as soon as possible.

Additionally, a parent should not be early for parenting time as this may

cause undue disruption for the child(ren) and the other parent.

When supervised parenting time is ordered at an agency or at a therapist’s

office, both parents should appear early for parenting time. There may

not be a grace period for parenting time in a supervised setting. This is

dependent upon the individual policy of the agency. However, arriving

late for supervised parenting time may adversely affect the time frame

for progressing to an unsupervised parenting time schedule.

I. Makeup Parenting Time

Makeup parenting time occurs when a child(ren) has been denied

access to a parent during scheduled parenting time. The makeup parenting

time will be applied according to a policy established by the court and

should be of the same type and duration as the original parenting time.

For example, a lost holiday would be replaced by the exact same

holiday. If a parent fails to exercise parenting time, the schedule would

not be adjusted and future parenting time shall occur as if no time has

been missed.

The same general provision applies in a case in which there is an order

for supervised parenting time. However, the parent that failed to appear

for the supervised parenting time may be responsible for any fee

assessed by the agency for cancellations without an appropriate notice.

In addition, this action may adversely affect the supervised parenting

time schedule and the parenting time progression.

SAMPLE 50/50 PARENTING TIME SCHEDULES

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HE SAYS AMEN, SHE SAYS WHAT FOR?: HOW CAN RELIGION SWAY YOUR CUSTODY CASE?

“A rabbi and a priest walk into a courthouse . . . Oh, nah, never-mind. Look, there are three things you should never, ever talk about in public: money, politics and religion,” my late grandfather said, peering at me and my twin sister as we waited for Mom to arrive. Grandpa was our babysitter then, and he had taken it upon himself to impart precious pearls of wisdom these afternoons while we waited for Mom to finish working. I will never forget this pearl because we were five years old, I had no clue what “politics” were, and he followed it up by pulling out his wallet, handing us each a $5.00 bill and saying, “Now what’ll your friends get a load of that,” as if we carried money on the playground.

A few decades’ experience later, I can say that Grandpa was right – mostly. As a divorce attorney, I can tell you there are more than these three things you should never, ever talk about in public. Add to Grandpa’s list: how much you hate your spouse; how hard it is to parent your children; who you are dating; how much money you think you can save in your divorce; how you can “poof” make your business unprofitable while you divorce; why you do not want to give your spouse one-half of your retirement, “not even a dime,” etc., etc. Safe to say, do not discuss your divorce with anyone except your lawyer, the family members you trust, and your support group. What you say can come back to haunt you.

However, there are times when you must discuss these three things in public, open court, on the record. For religion, that time is the custody case. You may be uncomfortable about it – and, believe it or not, as a matter of law courts are, too – but this discussion could sway your case. Here’s how:

Courts hesitate to interfere with parents’ religious choices. As the Arizona Court of Appeals explained:

The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another [under the First Amendment Establishment and Free Exercise clauses]. . . . Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not [automatically] disqualify any applicant for custody or restrain any person from having custody or visitation rights . . . .

Funk v Ossman, 724 P2d 1247 (Ariz Ct App 1986). However, States also have theparens patriae power, as “pseudo parents,” to enact laws designed to protect children and promote their growth into productive citizens. This does not mean States can sponsor a religion or pick a religion for children at leisure. It does mean, however, that States can regulate a child’s exposure to conflicting religions when the exposure has or will clearly have an effect on the child health, safety or general welfare. Id.

With this rationale, there are three methods your court may use to address religion in your custody case: through a best interests of the child analysis; as a sanction for parental alienation; and in an order compelling action or inaction to prevent harm to a child.

Method 1: Best Interests Analysis

The court’s job in a child custody case is to award custody according to the child’s best interest. In other words, the court should award custody to the parent who will better serve the child’s best interests. The analysis is highly fact-sensitive, but most States have court opinions or statutes with factors for the court to consider. For example, in Michigan, Section 23 of the Child Custody Act of 1970, MCL 722.21 et seq., requires the court to consider the following factors:

            (a)        The love, affection, and other emotional ties existing between the partiesinvolved and the child.

            (b)        The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

            (c)        The capacity and disposition of the parties involved to provide the child with  food, clothing, medical care or other remedial care. . . .

            (d)        The length of time the child has lived in a stable, satisfactory environment, andthe desirability of maintaining continuity.

            (e)        The permanence . . . of the existing or proposed home or homes.

            (f)        The moral fitness of the parties involved.

            (g)        The mental and physical health of the parties involved.

            (h)        The home, school, and community record of the child.

            (i)         The reasonable preference of the child, if the court considers the child to be of  sufficient age to express preference.

            (j)         The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

            (k)        Domestic violence, regardless of whether the violence was directed against or  witnessed by the child.

            (l)         Any other factor considered by the court to be relevant

One common factor is religion. To parents’ retort that making a custody decision with religion in mind is unconstitutional, the majority of courts respond that it is not because religion is a factor, and merely a factor, to consider. As the Alaska Supreme Court explained:

A court's task in a child custody case is to determine which parent will better serve the best interests of the child.  Myriad factors may be considered in working toward this goal.  To hold that a court may not consider religious factors under any circumstances would blind courts to important elements bearing on the best interests of the child.  The constitution is not so inflexible as to foreclose all inquiry into this sensitive area.

Bonjour v Bonjour, 592 P2d 1233 (Alaska 1979).

The court will consider the factor when religion is an important aspect of the child’s life, not always.    For example, in Bonjour, the Alaska Supreme Court overruled a portion of a trial court award that favored a father who was a “practicing” Protestant over a mother who was a “passive” Jew because their son was not actively involved in either faith. The court held, “The court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent.”

Therefore, when religion is an important aspect of the child’s life, the more likely a parent is to continue the child’s religious education, the more likely that parent will have custody or significant parenting time with the child. If the parents are equal on all other factors, this may be the dispositive one.

Method 2: Parental Alienation Analysis

While the best interest analysis asks the court to consider the child’s religious beliefs, the               parental alienation analysis asks the court to consider whether either parent’s religious beliefs prevent the parent from fostering and encouraging a relationship between the child and the other parent. To parents’ challenge that this analysis, like the best interest analysis, is unconstitutional, the majority of courts respond that it is not, for the same reasons. As the Alabama Supreme Court explained:

That one’s religious beliefs cannot be the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. . . . [Because] the ultimate consideration in determining the proper custody of the child is what is in his best interests, questions concerning religouis convictions, when reasonably related to the determination of whether the prospective custodian’s convictions might result in physical or mental harm to the child, are proper considerations . . . .

Snider v Masburn, 929 So 2d 447 (Ala 2005).

For example, in Snider, the mother, her son and her new husband spent most of their time working for a missionary named David Cloud. They moved from family and friends in Alabama to a rural town in Indiana to be closer to the church. They engaged in corporal punishment. They banned most movies (even children’s and preteen movies like Finding Nemo), birthday parties and holidays. They insisted, adamantly, that anyone who did not abide the missionary would “go to hell,” including the son’s father and his paternal relatives. The court found that, while working in the missionary with his mother, the child suffered “a significant and detrimental change in personality and behavior” that destroyed his relationship with his father. Id. The mother’s religious convictions aside, the record was clear the mother was unwilling to foster a relationship between her son and his father. The court insisted its decision was not “based on the religious beliefs of either party,” which the Alabama Supreme Court accepted because the court stressed the child’s happiness, adjustment and welfare over either party’s religious beliefs. Id.

Therefore, while a court cannot deprive a parent of custody merely out of disapproval for that parent’s religious convictions, the court may deny custody to the parent whose religious practices actually alienate the child from the other parent. Neither parent’s religious beliefs may be the sole basis to deny custody, but the court may explore religious beliefs that alienate the child from the other parent and base a decision to deny custody, in part, on them.

Method 3: Harm

 Neither the best interest analysis nor the parental alienation analysis dispel the special place religion holds in the law. Free exercise is a fundamental constitutional right on which courts cannot lightly tread. Wisconsin v Yoder, 406 US 205 (1972). In child custody cases, this creates a conflict between the parents’ religious rights and their child’s best interests. In this conflict, religion prevails. For most facets of daily life, the court may consider which parent is “more likely than not” to serve the child’s best interests. Whose house is better? Playground? Pet? Diet? These are material and non-constitutional matters. When it comes to religious rights, however, a higher standard – harm – emerges.

The harm standard forbids the court from making a custody decision based on a parent’s religious activities or restrict the activities during custody time unless they “pose an immediate and substantial threat to [the] child’s temporal well-being.” LeDoux v LeDoux, 452 NW2d 1 (Neb 1990). In other words, there must be an actual, impending threat or a substantial certainty of one – a mere worried belief that harm is more likely than not to occur is not enough. Id. The court’s inquiry, however, is limited to the parent’s religious activities and how those activities actually or are substantially likely to harm the child. Id. The court may only consider the parent’s beliefs to the extent they are probative of the frequency of these activities, and the court must never consider the merits of the religion’s official doctrines. Id.

The battle in court, in other words, is not a battle of the worth of the Word, no matter how radical that Word may be.

For example, in Shepp v Shepp, 821 A2d 635 (Pa 2003), a fundamentalist Mormon father from Pennsylvania believed in polygamy as a matter of religious duty – so much so that he told his preteen daughter that she would “go to hell” if she did not agree with this views and, by some accounts even insisted that his daughter marry him for the sake of polygamy. The trial court and the appellate court held that the father was not entitled to custody because he advocated the crime of polygamy, but the Pennsylvania Supreme Court reversed their decision. According to that court, Pennsylvania’s “interest in promoting compliance with the statute criminalizing polygamy is not an interest of the higher order that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith.” Id.

Mere words are not enough.

However, when religious activities harm or are substantially certain to harm the child, the court will intrude.

For example, in Prince v Massachusetts, 321 US 158 (1944), the Supreme Court of the United States upheld parenting time restrictions for a mother who allowed her children to roam the public highways, unaccompanied, circulating Jehovah’s Witness materials. The justices noted that the public highways were not the faith’s official church. Moreover, the danger to children – strangers, traffic, illness, fatigue – outweighed whatever interest the mother had in practicing her faith. The mother could continue these activities, but she could not subject her children to the perilous public highways for them. Id.  

Tips and Tricks

In your custody case, the right you seekto raise your child includes the right to determine your child’s religious upbringing. See, e.g., Yoder v Wisconsin, 406 US 205 (1972).How can religion sway your case?:

Commit to Continue: If your child attends religious activities (church, Sunday school, summer Vacation Bible School, after-school religious programs, etc.), commit to continuing them after your divorce. Make sure your court and your divorcing  spouse know you are committed and that your commitment is serious, not puffery to get custody. The parent committed to continuing the child’s religious upbringing is more likely to be the winning parent in the best interest analysis.

Participate Aplenty: Similarly, participate in your child’s religious activities. This does not mean that you have to learn how to sew your child’s bunny costume for the annual Easter pageant or go all-out as “Super Dad” running bake sales and pancake breakfasts. Do not be fake. But do make a point to participate in the activities important to your child, the entertaining and the educational alike. The more time you spend with your child now, the more time you are likely to receive after your divorce.

Be Friendlier, Not Holier: I cannot stress this enough. When religion enters the case, the goal is not to determine which parent is holier. In fact, evidentiary rules in all jurisdictions forbid the fact-finder (judge or jury) from drawing favorable inferences from one person’s testimony merely because that person is of a particular religious persuasion. Even priests can lie. Instead, the goal is to determine which parent will foster and encourage the child’s religious upbringing and relationship with the other parent. This is called the “friendly parent” factor. The friendlier the parent, the more likely the parent will receive custody after the divorce. You can be the friendlier parent by arranging parenting time around important religious holidays, encouraging your spouse to attend your child’s religious events with you, arranging custody exchanges to allow your child to attend religious events, attending church as a family, and staying calm during religious events.

Educate Early: If your faith requires certain commitments that the public misunderstands (dietary restrictions, dress, recruiting, etc.), educate your attorney, your opponent and the judge early. Be sure everyone understands what your religion is and is not to attack any allegations that you will alienate or harm your child. In some jurisdictions, you may present expert testimony from a religious official or a psychologist.

True, as another of Grandpa’s pearls of wisdom went, no judge or jury believes a defendant who magically “finds God” the moment his rights are at stake. The same goes for parents worried they will lose their custodial rights. Nevertheless, if religion is an important aspect of your child’s upbringing, alienates your child or threatens to harm your child, now is the time to make the religious talk public. It could sway your case.

--And, rather than start a bad joke, the rabbi and the priest could be walking into court for you.

CAN I TRAVEL OUT OF THE COUNTRY WITH MY CHILD?

If your parenting time order is from a Michigan court, it depends.

According to Section 7a of the Michigan Child Custody Act, effective January 2013, both parties are prohibited from exercising parenting time, such as by traveling for vacation, in any country that is not then  a party to the Hague Convention on the Civil Aspects of International Child Abduction,  unless both parties give their prior consent in writing to the Court to allow either party or both to travel with the child to or in such a country.  Any order that the Court updates after January 2013 must include this prohibition.

When in doubt, ask your lawyer.

You can find a current list of Hague Countries here: http://travel.state.gov/content/childabduction/english/country/hague-party-countries.html

DOES MY CHILD'S PREFERNCE FOR PARENTING TIME MATTER?

YES!

The parenting time statute, MCL 722.27a, provides that parenting time must be awarded “in accordance with the best interests of the child,” a legal term of art that           a prior statute, MCL 722.23, defines. When deciding which schedule is in the child’s best interests, the family court need only, but must, analyse the relevant statutory best interest factors.[1] Although the specific schedule must be awarded in frequency, type and duration to foster a strong bond between child and parent,[2] the family court must consider the relevant best interest of  the child factors when making that determination.[3]          

There is no magic age or bright-line rule to determine when a child is “old enough.”[4] However, the child’s preference matters, and it matters according to             the Court’s more recent appellate decisions whether the matter is an initial physical custody decision or a post-judgment modification of parenting time. The family court cannot disregard a child’s preference because   the child is, as in this case, “young” or       a preteen. Rather, in its best interest analysis, the family court must take the preference into account if it decides the child is old enough to articulate a preference.[5] The child’s preference “does not have to be accompanied with detailed thought or critical analysis,”[6] and the family court must find the preference is “arbitrary or inherently indefensible” before disregarding it.[7]  Failure to interview a child for preference is, in fact, reversible error.[8] Children as young as four, six and nine have had their preferences heard and given weight.[9]

Moreover, the family court must grant parenting time in frequency, duration and type reasonably calculated to promote a relationship between the child and both parents and considering factors other than “proper cause” and “change in circumstances.”[10]            The schedule should be appropriate for the age, circumstances, needs, etc., of the child, considering the existence of any special needs; the likelihood of abuse or neglect of  the child or a parent; the likelihood the parent requesting parenting time will actually exercise parenting time; the inconvenience,  or burdensome impact of effect on, the child of traveling for parenting time; any threatened detention or withholding  of the child from parenting time; and any other factor relevant to the family.[11] The family court should award a specific schedule at the parent’s request if in the child’s best interests.[12] 

When deciding which schedule is in the child’s best interests, the court need only analyze relevant best interest factors.[13] The family court must consider:

       (a)        The love, affection, and other emotional ties existing                           between the parties involved and the child.

       (b)        The capacity and disposition of the parties involved to give    the child love, affection and guidance and to continue the  education and raising of the child in his or her religion . . .

       (c)        The capacity and disposition of the parties involved to   provide the child with food, clothing, and care . . .

       (d)        The length of time the child has lived in a stable,  satisfactory environment, and the desirability of  maintaining continuity.

       (e)        The permanence of the existing or proposed home . . .

       (f)        The moral fitness of the parties involved.

       (g)        The mental and physical health of the parties involved.

       (h)        The home, school, and community record of the child.

       (i)         The reasonable preference of the child, if the court  considers the child to be of sufficient age to express it . . .

       (j)         The willingness and ability of each of the parties to   facilitate and encourage a close and continuing parent-child    relationship between the child and the other parent

       (k)        Domestic violence

       (l)         Any other factor considered by the court to be relevant . . .

[14]

The analysis should not proceed like a balance sheet, where one parent “wins’ for having more factors, and the trial court must begin with the presumption that it is in the child’s best interests to maintain an equal relationship with both parents.[15]

Thus, the child’s preference features heavily in the family court’s procedure, as well as the factors the family court must consider in rendering a decision.

[1]           Pierron v Pierron, 486 Mich 81; 782 NW2d 480 (2010).

[2]           Fletcher v Fletcher, 447 Mich 871; 526 NW2d 889 (1994).

[3]           MCL 722.27a(1). For a custody decision, the lower court must consider all of the best interest factors. Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003).

[4]           Sinicropi v Mazurek, 273 Mich App 149; 729 NW2d 256 (2006).

[5]           The parenting time statute, MCL 722.27a, does require that we consider relevant factors, and, certainly, as children age their preference is one of those factors.

[6]           Pierron v Pierron, 486 Mich 81; 782 NW2d 480 (2010).

[7]           Id.

[8]           Stringer v Vincent, 161 Mich App 429; 411 NW2d 474 (1987).

[9]           Bowers v Bowers, 190 Mich App 51; 475 NW2d 394 (1991).

[10]          MLC 722.27a(1).

[11]          MCL 722.27a(6).

[12]          MCL 722.27a(3).

[13]          Pierron v Pierron, 486 Mich 81; 782 NW2d 480 (2010).

[14]          MCL 722.23.

[15]          MCL 722.27a

THE TRAVEL VETO: HOW YOUR EX CAN THWART YOUR TRAVEL PLANS, AND HOW TO AVOID IT

Thinking about a trip with your children overseas? Maybe a long weekend for a sightseeing safari, or volunteering in Haiti, or cruising in the Mediterranean this summer? Think again. If your children are sixteen or younger and need passports, your ex could thwart your travel plans and send you back to court fighting first.

It’s a power woefully addressed in divorce decrees, if not wholly forgotten: the Two Parent Consent Law, i.e., the one parent veto power. Here is everything you need to know and how to avoid your ex’s veto:

The federal Two Parent Consent Law, Pub L No 106-113, § 236, 113 State 1501 (1999), regulates passport applications for minors. A “minor” is an unmarried person under age eighteen. 22 CFR 51.27. Minors age sixteen and older may sign their own application, or their parents or individuals in loco parentis (authority like parents, such as guardians) may apply for them. To apply for a passport for a minor under age sixteen, however, both parents must consent, in writing or the applying parent must provide documentation showing his or her sole authority to obtain the passport. This “sole authority” may be in a sole legal custody order, an order giving the parent permission to travel with the child, an order terminating parental rights, or a notarized statement that the other parent consents or is unavailable to consent. “Unavailable” does not mean merely unreachable (e.g., your ex did not answer the telephone last night) but physically unavailable (e.g., your ex fled to Vegas five years ago, you have not heard from her since and she is listed as a missing person). The Secretary of State may also issue a passport “for compelling humanitarian reasons related to the welfare of the child,” such as may occur when parent and child leave a batterer. See generally, 22 CFR 51.27 and related regulations.

As more jurisdictions jump on the “joint custody presumption” wagon (I am happy to report for fathers everywhere), the circumstances in which one parent has “sole authority” to apply for a passport are exceedingly rare. For most families, both parents will have decision-making power, if not joint physical custody, for their children. This includes the power to deny consent for a passport application, even for a “deadbeat” parent who fails to exercise any visitation and merely clutches legal custody rights like a pest bent to both you.

What can you do if your ex refuses to consent?

Tips and Tricks

Before rushing to court, speak to your ex to calm any qualms and rationalize any fears. Provide your ex with confirmations for airport departures and arrivals, hotel addresses and telephone numbers, and cell phone numbers where you and the children can be reached at all times. Assure your ex that you will list her as the children’s emergency contact in their passport applications and on the inside of their passports. Make an itinerary for significant events, such as the days you will be at the beach or the museum or on a tour outside of phone’s reach.

But if your ex still threatens the veto, try these tips and tricks:

Motion to Clarify: Usually, ex-spouses disagree because their decree is ambiguous, not because one ex flagrantly disregards a particular provision (although that does happen). Do not be discouraged if your decree is ambiguous. It is a product of human language, try as we lawyers might to make decrees crystal clear. If your decree is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a provision meant when issued, according to the circumstances at the time. That is, what did the provision mean on the date the court granted the divorce? Did a provision granting each parent “decision-making power during that parent’s time” mean “all decision-making” or “decision-making, except when the law requires both parents’ consent”? Did a provision granting each parent “two weeks of vacation time” in the summer mean “two weeks of vacation time anywhere” or “two weeks of vacation time anywhere in the United States”? What did the court and the parties contemplate at the time? If you are certain that your interpretation is correct, try this motion.

Motion to Modify: What if your interpretation is incorrect, your decree does not contain a travel provision or you do not like the provision it does contain? Ask your court to modify it. A motion to modify asks the court to change a provision based on circumstances since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for custody modifications. In general, there must be a “change in circumstances” or “proper cause” since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, parenting time terms should change as the interests of the child change. Therefore, courts apply the “best interests of the child” standard when considering whether to modify a term, rather than the threshold. See, e.g., VanOdsell v VanOdsell, 2008 Ohio 5843 (Ct App 2008) (father’s motion to enjoin mother from obtaining passport to take child to Switzerland should have been decided under the best interests of the child standard). Be sure to discuss your jurisdiction’s rules with an attorney first, as they may be different.  You do nothing good, and a whole lot of bad, for your cause if you cite the court to the wrong rules.

Motion to Compel:  If your ex does disregard your decree, ask the court to compel her action. A motion to compel asks the court to bring the opposing party to court to explain why he or she disregards the court’s orders (to “show cause”) and to issue an appropriate remedial order, which may include an order requiring action, contempt sanctions and attorney fees.  

Take a certified copy of your decree and any subsequent orders for your motion when you apply for your children’s passports. A certified copy is more reliable because it bears the court’s stamp or seal as a sign that it is bona fide, not a phony. You may attach this to the passport application as evidence of your “sole authority” for applying – according to the court, even if your ex disagrees.

Time to Use the Veto?

Has your ex threatened to take your children out of the country without your approval? Maybe to a secret destination? Do you think she has or will apply for passports? Does she already have them? It may be time for you to exercise your veto with one or more of these options:

Passport Confiscation: State courts have the authority to order a parent to surrender a child’s passport to the court or to a third party of the court’s choosing. The order is enforceable under state law, and the Department of State will honor the order by denying a new or renewal application. 22 CFR 51.27. The parent obtaining the order should send a certified copy to the Department of State’s Office of Children’s Issues with a written request for the Department to deny any passport application.

Alert Program: The Department of State’s Passport Name Check Clearance System alerts parents when it receives a passport application for their child. To sign up for the alert, the part must send a written request to the Department of State with a copy of a birth certificate or other appropriate order as evidence of the parent’s relationship to the child. The alert request remains in effect until the parent revokes it or the child turns age eighteen, whichever occurs first.

Court Promptness: The Department of State does not track or control passports once issued. Moreover, it is very difficult to locate children once they leave the country. Therefore, seek court action promptly with one of the motions described above.

Prepared Decree: Why not address international travel in your divorce decree? There is no reason not to. A simple provision like the following restates the Two Parent Consent Law but gives consequences for the unreasonable parent: “Neither party shall travel with the children to a location outside the United States without the other party’s prior consent, which shall not be unreasonably denied; to effectuate this provision, the parties shall promptly execute all reasonably necessary documents, including passport documents, and the non-compliant party shall be responsible for the other party’s actual attorney fees and costs to enforce this provision in this or another court or administrative body.” Or, if you have a trip planned, try a provision like this: “The parties agree that party X may travel with the children to destination Y. The parties shall promptly execute all reasonably necessary documents, including passport documents, to permit this travel. If party Z fails to cooperate, then this document shall serve as party X’s sole authority to travel with the children, including the authority to obtain passports, and party X shall be entitled to actual attorney fees and costs for having to enforce this provision in this or another court or administrative body.”

If you suspect your ex has abducted your children, contact the police immediately. Make a report, and exhaust all avenues in your jurisdiction to locate your children. Also contact the federal                  National Center for Missing and Exploited Children. NCMEC works with the Department of Justice and the Department of State to manage international child abduction cases. You should contact an attorney immediately for assistance, as there are time limits as short as one year that may apply.

To Learn More

To learn more about international travel with children, please contact an attorney. You might also contact the Department of State’s Office of Children’s Issues by writing to 2A-29, 2201 C Street NW, Washington, DC 20520, by calling (202) 736-9130 or by faxing (202) 736-9131. You may also search online at www.travel.state.gov.

Otherwise, your ex could thwart your trip with your children via her vindictive veto. 

PAY TO PLAY? WHY NOT TO PAY MORE CHILD SUPPORT FOR MORE TIME, AND WHAT TO DO INSTEAD

Chances are, at some point during your custody case you will hear the following phrase: I will give you more time if you pay me more child support. Maybe your soon-to-be ex will not be so blunt, by saying some thing like I’m not sure I can live on that little amount of support, or her attorney will be more bold by saying something like You just want equal time so you don’t have to pay as much child support. But, the point is all the same – if you “really” wanted to spend time with your kids, you would not be concerned about paying “a little extra” to do so.

But is that the right approach? For many reasons, the answer is No! In many states, if you agree to pay more child support than the law would require, you may not be able to get out of that agreement if you lose income or your then-ex gains income.

But before you respond back to your soon-to-be-ex and her attorney that they are greedy-no-good-you-know-whats, take a step back and identify the problem. More often than not, the root of that problem is not greed but something else –and something you can fix.

Extra Curriculars – Sometimes, the problem is paying for extra curricular activities, sports, school trips, etc. In most states, these are “extras” that are not included in base child support, which is intended for food, clothing, shelter and necessaries, or medical support, for doctor’ visits, prescriptions and healthcare treatment. Rather, they are an additional expense that parents either agree to pay, agree to share or, if their child support order or divorce decree is silent on who pays what, fight over for eons to come.  Believe me, it is not fun, but common, for parents to come back to court to fight over who pays for ice time for hockey, cleats for soccer and hotels for travel dance team. When parents do not agree, the parent who wants to keep the child enrolled in the activity will tend to hoard child support in order to do so. And we know that, generally speaking, the more parenting time that parent has, the more child support that parent receives. And thus the need to keep more than equal time. If your child is enrolled in an activity, and presumably one the child enjoys, then make arrangements for paying for it separate and apart from child support. (Always talk with an attorney, though, to make sure you are not locked into paying activities your income may not support in the future, which an appropriately drafted order will prevent.) In doing so, you eliminate the need to grab onto days of parenting time to keep your child support obligation higher.

Budget – Other times, the problem is poor budgeting for both parents. The reality is, when            a married household divides into two households, living expenses increase, rather than divide into half. The family can no longer share overhead for housing, utilities, insurance., and it must provide for two households on about the same income. Your spouse, though, will likely perceive you as “living the good life” in a bachelor pad while she is saddled with the kids – and, from that perspective, will ask for as much money from you as possible to support them.  Sit down together, or email each other if you cannot, to create budgets for each household to show such is not the case, as well as to determine how to support your child going forward. This may, and often does, mean trimming the excess (e.g., basic cable, rather than super) so that both household have sufficient funds to support the child – and the child is more likely to spend time in both.  The problem here is adjusting to a post-divorce lifestyle, and that is fixed by budgeting.

Fear of Unknown - Most of the time, fear of the unknown single life takes. This is particularly true for families featuring a stay-at-home parent and a working parent. The parent who did not work is usually the one most worried about “making it all work” post-divorce, when money is more limited, or feels to be anyway. It is prudent for both of you to sit down with your attorneys to identify your assets and how they will be divided, then a financial planner to determine what is the best use of those assets (Investment? College? Trust?) The more educated the both of you are as to how your assets will work for you post-divorce, the less  likely your spouse is to feel the need to “grab whatever she can” now to be safe. The problem here is the fear of the financial unknown, and this is a fear both of you can fix by planning ahead.

Then there are those spouses who are just plain greedy and bent on taking from you that which is most important to you – your parent-child relationship. For those spouses, no matter how much negotiating, budgeting and planning you do, the response will be the same – pay me X or else. No matter what you offer to do, the answer is the same – and that mean, like a slippery slope, even if you offer to pay more, more will eventually not be enough. For those spouses, the best approach is probably a trial, during which the family court judge can see the greed for all of its glory and fashion a schedule for you that you would never get otherwise.

But, believe it or not, those spouses are rare. If you can identify the real problem for yours feeling the need for more child support, you might very well find yourself in an equal parenting time schedule easier than you expected.

DO'S AND DON'TS FOR CO-PARENTING

Be a parent engaged through hope, rather than through revenge. A parent who is interacting through revenge is creating harm for the children. When a parent’s motive is for revenge,  they make decisions and take actions not because those decisions are right for the children, but because  they wish to hurt the other parent. Children in this situation get put in the middle and live with the stress caused by the actions of the  parents. Parents who interact through hope set aside their emotions and continue to work on letting go of negative emotions and behaviors so  they can co-parent. This involves committed practice that does not put the children in the middle.  Parents should remain focused on their children’s needs and future rather than on the other parent and the past. TO THAT END --

DO

• Allow your children to love the other

parent.

• Help your children maintain contact

with extended family and friends.

• Allow children to express their fears,

concerns and complaints.

• Communicate important information

regarding medical and school, or any

other important events for your children

to the other parent.

• Help your children prepare for parenting

time emotionally and physically.

• Envision a loving, happy and healthy

family for your children.

DO NOT

• Talk negatively, insult, or allow others

to talk negatively, or insult the other

parent where the children can hear you.

• Have arguments or conversations of

conflict between you (parents) when the

children are present or during parenting

time exchanges.

• Ask your children where they want to

live.

• Have your children serve as the messenger

for your requests to the other parent.

• Bring your children into adult issues and parental

conflicts about custody, parenting time,

child support or the court.

• Allow a stepparent or significant other to

negatively alter your relationship with the

other parent.

HELP! I'M GOING FOR MY CUSTODY EVALUATION, AND I DON'T KNOW WHAT THEY'LL ASK...

Unless your case settles quickly, you are likely to see a caseworker at the Friend of the Court (or, for those counties without FOC funding, a social worker or mental health professional) to obtain a recommendation for child custody and parenting time. Many parents are nervous, and rightfully so, because this third party, a stranger, will issue a recommendation to both parents, their attorneys and the Judge about what he or she thinks is best for their child.  There are standard questions asked at these meetings - and, so, if you prepare early and often, you can give your third party the best, most helpful information for your recommendation.

BEST INTERESTS OF THE CHILD FACTORS MCL 722.23(a)-(l)

A. The love, affection, and other emotional ties existing between the parties involved and the child.

• How do you feel about the [child / children]?

• How does the other parent feel about the [child / children]?

• Describe your [child / children]’s relationship with you.

• Describe your [child / children]’s relationship with the other parent.

• Do you feel the love bond and ties to the [child / children] are about equal between you and the other party? Please explain.

• How [do / does] your [child / children] know that you love [him / her / them]? What will your [child / children] say about this, if asked?

• What are your [child / children]’s favorite food, TV programs, stories, etc.?

• How has the [child / children] been affected by this marital separation?

• How would you go about correcting this?

• Which of you is more apt to hear about your [child / children]’s problems, triumphs, adventures, comfort needed for a skinned knee, joy shared with a home run hit?

B. The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in its religion or creed, if any.

• How do you show the [child / children] love and affection?

• How does the other parent show the [child / children] love and affection?

• What kinds of activities do you share with the [child / children]? How much time is spent with each activity?

• How do you discipline your [child / children]?

• How does the other parent discipline the [child / children]?

• What are the positive and negative points of your parenting skills as you see them?

• What the positive and negative points of the other parent’s parenting skills, as you see them?

• What are the rules of your home?

• What are the rules of the other parent’s home?

• Have you ever been abusive to the [child / children]? In what ways? Has protective services ever been involved?

• Is there a religion that exists for the [child / children]? What is each parent’s present religious practice? Is the present situation consistent with the parent’s past practices? Does each parent actively participate or show interest in religious training? Is there a history of difference in the parents’ religious beliefs? Does either parent’s religious convictions interfere with the [child / children]’s relationship with the other parent?

• Who feeds the [child / children]?

• Who bathes and dresses the [child / children]?

• Who stays home from work when the [child / children][is / are] sick? Why is that the person who stays home? (Work schedule flexibility, sick days easier to get off, etc.?)

• How are these decisions made with the other party?

• Who puts the [child / children] to bed?

• How do you teach your [child / children] manners? How does the other party?

• Describe a typical day with your [child / children].

• How does each party handle any fears manifested by the [child / children] if [he /she] becomes aware of such?

• Is there anything about yourself that affects your ability to give love, affection, and guidance? How about the other party?

• What kind of activities do you share with the [child / children], how much time is spent, how much involvement in the [child / children]’s school and extracurricular activities do you spend? How much time does the other party?

• How is each party’s ability to discipline themselves; who comes first, the parent or the [child / children]?

C. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

• Where do you work? What is your salary? Do you work full time or part time?

• Where does the other parent work? What is the other parent’s salary? Does the other parent work full time or part time?

• How well do you feel you manage money?

• How well do you feel the other party manages money?

• What is the earning capacity of each party? If employed, what arrangements have been made when the [child / children][is / are] not in school?

• Do you provide the [child / children] with food and clothing? Describe the [child / children]’s normal breakfast, lunch, and dinner?

• Does the other parent provide the [child / children] with food and clothing? Describe what the other parent feeds the [child / children]’s normal breakfast, lunch, and dinner?

• Do you provide the [child / children] with medical care? Is the [child / children]’s medical care current? Do you object to medical care in general?

• Does the other parent provide the [child / children] with medical care? Is the [child / children]’s medical care current? Does [he / she] object to medical care in general?

• Does the [child / children] have any special needs (e.g., medical, educational, speech)? What is being done about the special needs and which parent is attending to [him / her / them]?

• Who arranges for and takes the [child / children] to doctor and dentist appointments?

• Who arranges for child care and babysitter?

D. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

• Since your separation, when has the [child / children] been with each parent? If both parents have had physical custody of the minor [child / children], please provide dates the [child / children] lived with each parent.

• How has the noncustodial parent exercised parenting time since your separation (e.g., consistent, nonconsistent)? Please be specific.

• Please provide addresses of changes in residences since your separation. Please provide reasons for these moves. How has the [child / children] adjusted to changes of residences?

• Describe the proposed custodial home. Is it in the same geographical location? How will a move affect the [child / children]? What is the address of the custodial home, length of time in this home, and who all lives there?

• What are your future plans concerning mobility?

• Describe your home with regard to location, cleanliness, household furnishing, safety, and play areas.

• Describe the present custodial home.

• Who sleeps where in each home?

• Is the current home environment safe and stable for the child?

• Is the proposed home environment safe and stable for the child?

• Which home will provide the [child / children] with the most love, affection, guidance, moral and spiritual training, and educational and fulfillment opportunities? Why?

• Where do the [child / children]’s friends and relatives reside?

E. The permanence, as a family unit, of the existing or proposed custodial home or homes.

• How many times have you been married?

• How many times has the other parent been married?

• What has happened since the separation in terms of relationships with live-in male friends or female friends or marriage? Do any plans exist for remarriage?

• How long have you maintained the current relationship?

• How long the other parent maintained the current relationship?

• What is the [child / children]’s relationship with siblings, step-siblings, step-parent, or any other person that may be living in the home that is not a party in this case?

• What is the [child / children]’s relationship with siblings, step-siblings, step-parent, or any other person that may be living in the other parent’s home that is not a party in this case?

• How do you think the [child / children] perceive[s] the family unit? What future home is proposed by the petitioning party, and what future relationships would that involve?

F. The moral fitness of the parties involved.

• Are you morally fit? Please explain.

• Is the other party morally fit? Please explain.

• Has there been any drug or alcohol involvement by you or your current spouse? If so, how much, what treatment has been sought, and what has the person’s individual response to the treatment been?

• Has there been any drug or alcohol involvement by the other parent or [his / her] current spouse? If so, how much, what treatment has been sought, and what has the person’s individual response to the treatment been?

• Do you have a driving record or criminal history? Please explain.

• Does the other party have a driving record or criminal history? Please explain.

• Are there any romantic liaisons by either party? What has the effect of said liaisons been on the [child / children]?

• Is foul language used by either party in front of the [child / children]? What has the effect of said language been on the [child / children]?

• What do you see as your strengths and weaknesses on your moral belief? And to the other party’s?

• What has the [child / children]’s exposure to moral issues been and what has the [child / children]’s response been to the same?

G. The mental and physical health of the parties involved.

• Do you have any physical health problems (chronic illness or take any medicine regularly)? If so, how does it affect your ability to parent?

• Does the other parent have any physical health problems (chronic illness or take any medicine regularly)? If so, how does it affect the other parent’s ability to parent?

• Have you ever been involved in counseling? If so, when (provide specific dates), where, counselor’s name, and reason for counseling.

• Has the other parent ever been involved in counseling? If so, when (provide specific dates), where, counselor’s name, and reason for counseling.

• Do you have mental health problems? Please explain.

• Does the other parent have mental health problems? Please explain.

• Has the other parent ever been hospitalized due to a mental health problem? Please explain.

• State the mental health history, marriage counseling, or hospitalizations of all parties to this action.

• Is mental health related to the divorce or custody disputes or to a long-term disability?

H. The home, school, and community record of the child.

• What school [does / do] the [child / children] attend? Would a change in custody mean a change in schools for the [child / children]?

• What [is / are] the attendance record[s] of the [child / children]?

• What [is / are] the academic record[s] of the [child / children]?

• What [is / are] the [child / children]’s attitude[s] toward school?

• What extracurricular activities [does / do] the [child / children] participate in?

• What is your involvement in these activities?

• What is other parent’s involvement in these activities?

• What [is / are] the [child / children]’s responsibilities while your home?

• What [is / are] the [child / children]’s responsibilities while in the other parent’s home?

• [Does / do] the [child / children] have any juvenile or other agency involvement?

• [Does / do] the [child / children] have any close relationships with friends in the area?

I. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

• In your opinion, what is a sufficient age for [child / children] to state a preference regarding custody?

• Do you feel the [child / children][has / have] a preference? If so, what is it?

• How do you feel the [child / children] would react if a change of custody is granted?

• Why does the other parent want this change of custody?

• Do you want a change in custody? Why or why not? Please explain.

J. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the other parents.

• How have you encouraged or facilitated a continuing relationship between the [child / children] and the other parent?

• How has the other parent encouraged or facilitated a continuing relationship between you and the [child / children]?

• How have you attempted to remove or destroy the relationship between the [child / children] and the other parent? How? Why?

• How has the other parent attempted to remove or destroy the relationship between you and the [child / children]? How? Why?

• How have you cooperated with parenting time requests and contact between the [child / children] and the other parent?

• How do you and the other parent get along with each other?

• Do you talk about the other parent in front of the [child / children]? If so, in what manner?

• Does the other parent talk about you in front of the [child / children]? If so, in what manner?

• What is your proposed parenting time schedule?

K. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

• Have you been physically abusive to your spouse? How? Why?

• Has your spouse been physically abusive to you? How? Why?

• Has your spouse been verbally abusive to you? How? Why?

• Have you been verbally abusive to your spouse? How? Why?

• Have either of you ever been physically abusive to your children? How? Why?

• Have either of you ever been verbally abusive to your children? How? Why?

• Has your [child / children] been exposed to any domestic violence in your home? How? Why? Please explain.

L. Any other factor considered by the court to be relevant to a particular child custody dispute.

• Are you aware of the availability of joint custody? What is joint custody?

• Would you like joint custody? When do you foresee you having the [child / children] and when do you se the other parent have the [child / children]?

• Are you using issues concerning the [child / children] to disrupt or control the activities of the other parent?

• Is the other parent using issues concerning the [child / children] to disrupt or control your activities?

HOW DO I GET MY EX TO STOP HARASSING ME?

Every divorced parent, at some point during and after divorce, will suffer ex-spouse harassment. Trust me as a divorce attorney, if it has not happened to you yet, it will. It may be a quibble over school grades, who is to take your son to soccer practice, whether your daughter needs to see a doctor, etc. It may be your ex’s family or friends “just talking” at your child’s next function about your parenting style. It may be a constant stream of phone calls and texts about what needs to happen during your parenting time, who is around during your parenting time, whether the two of you agree on vacation time, and so forth.

For some divorced parents, these are minor annoyances that they can deal with. Send a quick text back to your ex about your child’s plans and remind those family and friends that you, and your child, can hear them talking at that event.

For most divorce parents, however, they snowball and feel like, and often are, harassment that erodes your parenting time. What can you do? Consult with your attorney, as always, and consider these:

Civil Injunction – A civil injunction is the divorce court’s version of a personal protection order. What kinds of conditions you can include in yours is very state-specific, so be sure to consult with your attorney. In general, they require both parents to restrain from disparaging each other, in front of their child or otherwise, but they may also require each parent to refrain from talking to the other or appearing at the other’s home and work except to discuss matters pertaining to their child. Unlike a personal protection order, however, most police officers will not enforce these orders automatically with the threat of, or actual, arrest if your ex violates the terms. Rather, you have to file a contempt action in the divorce court. So, if your safety is at risk, you should consider a personal protection order instead. On the other hand, this also means your ex cannot call the police claiming you violated the order, or hold the threat of arrest over your head.

Forms of Communication – In all states, your judge can require certain forms of communication between you and your ex. The goal here is to streamline the process for communication to eliminate the potential for three phones calls, ten texts, five emails and a call from your in-laws over the span of minutes over something innocuous.  In other words, this is an option  you should consider if your ex has a habit of barraging you with questions and, intentionally or not, interrupting your parenting time. If phone calls inevitably lead to a yelling match about who-did-what-when, then texting may be more appropriate (except, of course, for emergencies). If texting leads to hours spent on your phone defining yourself, then limits on the number of texts, or emails, or am obligation to use a journal (that your child should not see) may be more appropriate.  For particularly difficult exes, software that monitors and saves communications, potentially for             the judge’s review, may be best.

Parenting Coordinator – There are some exes, though, who will just not comply no matter what your orders say. They can create an “emergency” out of anything, for example, to justify their phone calls to you when the judge ordered calls only for emergencies. Or they will have friends and family contact you, Facebook message you, drive by your home, and more, instead. For these particularly difficult exes, sometimes a middle-person to field questions, settle disputes and arrange parenting time is best. These folks are variously called parenting coordinators, post-judgment GALs, family counselors, and otherwise, and their credentials vary by state. Fees can be steep, but they are also less expensive then constant post-divorce litigation.

Most of all,  and this will take plenty of practice, learn to keep your patience. More often than not, what looks like harassment in the first few months post-divorce is really your ex’s way of navigating his or her own issues over your divorce. Both of you have lost control over your most important assets –your children – for a period of time, and learning how to cope takes time for both of you.  If the harassment continues, though, know that you do have options, and consult with your attorney to determine which are best for you.

Swearing In Tommy: Should Children Testify?

The wood was smooth and cold against the back of his legs. Tommy sat slouched, his feet dangling above the marble floor, unable to reach even with his tiptoes, on the courtroom bench. He grasped a red plastic truck between sweaty fingers and, his head hung low, shuffled his eyes back and forth, quickly so no one would see, between Mom and Dad. They stood on the other side of the knee-high gate with men in black suits and ties, arguing softly, but he could see the daggers they let out silently with their whispers. Mom pointed an angry finger at him. Then Dad did. A woman hurried through the courtroom, carrying an armful of files. One page slipped from the top, but she kept brushing by. Then the little wooden door in the corner swung open, and a giant man in black stepped out with a police officer. “Tommy, why don’t you come talk to me,” said the stranger, “and we’ll have a little chat.” The officer tugged him from his bench, fingers clutching into his shoulder, and dragged him to the stranger. “Go get him, son,” said Dad. “Love you,” said Mom. The stranger squinted his eyes, scrutinizing the boy.

Have you ever struggled over whether your child can, or should, testify? And what happens to him if he does? Can you ever guarantee the words out of her mouth, to the judge, are what she tells you at home? And what if your spouse planted thoughts? How can you protect your rights? Can you?

You are not alone. Here are some suggestions.

When children come to court to testify, they come as fact witnesses, preference witnesses, or both. These are the two forms of children’s testimony, fact testimony and preference testimony. Fact testimony refers to the child’s first hand knowledge of events: what the child saw, heard, felt, did, and so forth. This form of testimony is admissible, absent a statute or court rule to the contrary, in all family cases where facts are in dispute. Preference testimony refers to the child’s wishes for a particular custody outcome in the case, i.e. whether the child wants to live with Mom, Dad or both. This form of testimony is limited in most states to child custody cases.

Fact Testimony: Who, What, Where, When, How

Each state legal system makes special provisions for handling children in the courtroom. The provisions range from special family courts, the first one adopted in Illinois in 1899, to special evidentiary rules for taking child testimony during trial, particularly over sensitive issues like neglect and sexual abuse. Unfortunately, when dealing with these issues, the child will often be the only witness with firsthand knowledge of the events in dispute. Therefore, the child’s testimony is crucial to a proper presentation of the case, and to putting the abusive party to punishment. However, each parent’s constitutional and statutory trial rights, like the constitutional right to confrontation, do not evaporate merely when a child testifies. Accordingly, to facilitate child testimony but accommodate parent’s rights, a court will allow a child to testify with certain safeguards, but not shrouded in secrecy.

There is a common misconception that children have to be a certain age to testify. At one time, this was true. Research suggested that children were vulnerable to making serious errors in their testimony; therefore, there was little to no guarantee of trustworthiness, the touchstone for evidence admissibility. Children under a certain age, usually seven or fourteen years old, could not testify.

In the majority of states, however, this is no longer true. Additional research and increasing reports of child abuse and neglect, among other things, prompted reform. Most states have dropped their child testimony bans in favor of rules that allow children to testify while allowing the fact-finder to afford the testimony as much (or as little) weight as deemed appropriate considering the child’s age, testimony and demeanor. Even in the minority of states that do require children to be a certain age to testify, the requirement is usually a presumption, not a bright-line rule banning testimony.

Evidentiary rules now presume witnesses are competent. A competent witness meets the minimum requirements to testify. In general, unless the judge finds after questioning the person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness.

In most states, special evidentiary rules apply to children witnesses. The judge may determine whether the child is competent in a pretrial motion, in chambers and off the record, or in front of the jury in open court. See, e.g., People v Houghtelling, 183 Mich App 805; 455 NW2d 440 (1990). The court may converse with the child in a dialogue that appears friendly and light-hearted to gauge whether the child knows the difference between right and wrong, knows the consequences of telling a lie, knows not to tell a lie, and can recall the events in dispute. For example, the judge may ask the child to describe her fifth birthday party to determine whether she remembers events from two years ago, around the time of the events in dispute. The judge must conclude that the child has the capacity to observe, remember and communicate what she observed and the capacity and sense of obligation to testify truthfully and understandably about what she observed. Using this method, even witnesses as young as four have testified. See, e.g., People v Kasben, 158 Mich App 252; 404 NW2d 723 (1987).

Even if the child is competent to give fact testimony, state rules may require the court to take additional precautions (or the parent offering the testimony to jump additional hurtles) before the child can testify. For example, in divorce cases in Vermont, the judge must appoint an attorney for the child before the child is called as a witness. 15 VSA § 594. The child may only serve as a witness if the judge finds, after a hearing on the issue, that (1) the child’s testimony is necessary to assist the fact-finder in determining the issues before it; (2) the probative value of the child’s testimony outweighs the potential detriment to the child; and (3) the evidence sought is not reasonably available by other means. Id. The competency examination may occur with the judge in chambers, with any other persons attending at the judge’s discretion, and a court reporter must record it. Id.

Procedural rules for state courts are a matter of state law, so be sure to check your state’s laws for the child testimony precautions applicable to your case.

As you can imagine, not all parents embrace the idea of their children testifying about personal, embarrassing and/or traumatic events in open court, on the record, before a judge and/or jury. They object, pointing out the re-lived trauma their children suffer, red-faced or timid in the witness box. For example, in the Michigan case Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), the trial court permitted an eleven year old boy to testify about several incidents of abuse from his mother and stepfather, who struck him with a paddle, punched him in the nose and knocked him to the floor. The mother objected and, on appeal, argued that the trial court committed reversible error by allowing the child to testify because “in a child custody dispute, the child should not be subjected to the additional pain of having to testify in open court and be cross-examined as he would be if he were a witness in ordinary criminal or civil litigation.” Id. The appellate court disagreed, holding that those concerns only apply to preference testimony; for fact testimony, “as a general rule an 11-year-old child is competent to  testify . . . unless the court finds after questioning [him] hat he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably[.]” Id. This boy did.

Moreover, the policy considerations (protecting children from having to choose between parents) did not apply when the allegation is physical abuse and the goal to protect the child from further abuse.

Preference Testimony: Pick a Parent

But what about sitting little Billy or Susie up in the witness box, barely able to see past the ledge, the judge peering down, the attorneys scribbling furiously questions to ask, to find out which parent is preferred? (Enter sinking hearts and that dread felt in the stomach here.) Should that child be sworn to testify truthfully, then forced to look his parents in the eyes and recite, to the whole world and these strangers in the courtroom, which parent he likes more? Seems utterly ridiculously, for several reasons.

First, from a parent’s perspective, no parent would let his child go through the pain of having to pick one parent over the other, of having to disappoint one, of having to twist and turn in the witness box and with a eeny meeny miney moe  pick where he will live.

Second, from a legal perspective, desires (where one would like to be) are not the stuff of traditional testimony. Traditional testimony focuses on firsthand knowledge, experience, of past events: what the witness saw, heard, felt, did, smelled, tasted, etc. These are concrete facts and, to a certain extent, when corroborated or offered from trusty sources to be relied upon. Desires, however, are transient and speculative. They do not feel as sturdy, as reliable, because by their very nature they change. In fact, evidentiary rules exclude speculative evidence for this reason.

Nevertheless, child custody statutes routinely require the fact-finder to consider the child’s preferences. Despite their speculative nature, preferences are important to the case – and to parents’ rights. Therefore, state rules for preference testimony strike a balance between protecting children from the pain of having to choose and ensuring their preference testimony is reliable, or as reliable as can be.

In Oklahoma, for example, for any proceeding to determine custody or visitation, the judge must determine whether permitting the child to state a preference is in the child’s best interests.43 Okl St § 113.

Furthermore, if the judge determines that the child is of a sufficient age to form an intelligent opinion, the judge must consider the preference in rendering the custody or visitation decision. Id. If the judge decides against the preference, the judge must make specific finds of fact, on the record, to support the judge’s decision. Id. There is no bright-line rule as to what age is a “sufficient age,” but the law does provide a rebuttable presumption that children age twelve and older are of sufficient age. Id.

Even though the preference may be dispositive, the judge need not allow the parents to cross-examine the child, or even listen to the child. The law permits the judge to elicit the child’s preference testimony in chambers without the parents or other parties present. Id. However, if attorneys are not allowed to be present too, the judge shall state, on the record, the reasons for their exclusion, and at either party’s request the just shall order a record made of the in chambers testimony. Id.

By comparison, Minnesota judges must allow parents’ attorneys to be present if the judge decides to elicit the child’s preference testimony in chambers. Minn Stat § 518.166. The judge must also allow the attorneys to ask the child questions, either directly or through the judge. Unless waived, each parent is entitled to a copy of the in chambers transcript for use in open court. Id.

The process is similar in Utah, but the court need not elicit the child’s preference at all. Rather, the judge may inquire of the child and take into consideration the child’s desires regarding future custody or visitation, but the expressed desires are not controlling. Utah Code Ann 30-3-10. The judge must give added weight to desires from children age sixteen or older, but not controlling weight. Id. The judge may ask the parents’ permission before speaking to the child, but need not get their permission if the judge determines an in camera interview is the only method to elicit the child’s actual preference testimony. Id.

In camera interviews are, by their nature, secretive. Sure, a court reporter may record the discussion for parents’ review, but not being present, to watch their child, to hear the questioner’s tone and see the child’s reaction, bothers parents to no end. That is a normal reaction when custody rights are at stake. It is difficult, if not impossible, to interpret the import of statements in a transcript without having live testimony to compare. That is one of the reasons appellate courts defer to trial courts’ findings of facts and credibility determinations. That sense of control over the case – of knowing who said what when, why and how – evaporates. The child could say anything. Or precisely what the parent wants.

Child Testimony Checklist

So, is it worth the gamble? Consider the following, and discuss them with your attorney if you have one, as you decide whether your child should testify:

1. A child is far more susceptible to post-traumatic stress and re-victimization than an adult, according to the American Academy of Pediatrics. You should have a professional evaluate your child for emotional and psychological issues that giving testimony may aggravate or accelerate. Be sure to include the child’s other parent or guardian in making this decision to avoid allegations that you “doctored up” the child’s testimony and/or violated a legal custody order.

2. Talk with your child about events around the time of the events in dispute to determine whether the child has a sufficient mental capacity to testify truthfully and accurately about the events. It may be a good idea to include the opposing party in this discussion, too, or at least disclose it in writing, to avoid any allegations that you influenced the child.

3. Ask if you can see where an in camera interview will occur. Is the judge’s office “kid friendly” or old, stuffy and scary? Similarly, is the judge nice or ruthless? Could you see your child feeling comfortable enough with the judge to tell the truth? Or will your child be frightened?

4. Are there other ways to get to the same information? For example, will your judge consider a custody recommendation and report from a family therapist or a guardian ad litem? Can other witnesses testify about the same events as your child? Or is your child the only witness?

5. Ask if you can participate. This may mean preparing questions for your attorney to ask on cross-examination for fact testimony or attending the in camera interview for preference testimony. Consider whether your attendance will encourage or discourage your child to testify fully and honestly.

6. Talk with your child about the possibility of testifying. Does he get excited? Scared? Indifferent? Does the child understand the difference between the truth and a lie, the importance of telling the truth and the consequences of telling a lie? Do not quiz your child, lest you influence the testimony.

7. Read the testimony statutes and court rules in your state thoroughly. Consult an attorney for assistance. Do the laws in your state afford additional protections to children? These may include live testimony behind a screen (for sensitive topics like abuse), use of dolls, special closed court sessions for the child’s testimony, attorney appointment to represent the child, and so forth. Assess each of these options for use in your case.

8. How certain are you that your child will tell the judge, or jury, precisely what he tells you at home?

9. Do you have to file a motion or attend a pre-testimony hearing, or are there other court rules to abide, before your child can testify? Do not just show up with your child and expect the judge to let him testify.

10. Does your child express a willingness to testify? If not, why not?

Your child’s testimony could be the proverbial “smoking gun” evidence – for you or against you. Your child could reveal the facts just as you want to prove them. Your child could also reveal, squirming in the judge’s chambers with a timid expression, just how afraid he is to pick a parent, and just how insensitive you are to insist he do so. What will happen in your case? Only you, and your attorney, after a thorough assessment can surmise that. Although your child can testify, it’s up to you to decide whether he should.