Monday, April 22, 2013

Determining the Best Interest of the Child: Obtaining an Attorney that can Effectively Advocate

This is the final in a three part series of articles about the 2006 Published opinion in re: The Marriage of J.M. v N.M. There are three distinct issues that are covered in this case that will be of benefit to anyone experiencing contested child custody.

The first segment was about the use of third-party evaluators and mental health professionals in shaping child custody decisions followed by the use of Domestic Violence Restraining Orders [DVRO] in shaping child custody settlement agreements. Today I conclude with finding an attorney who can effectively advocate for you in a child custody case.

As with anything you may encounter in life from drivers on the road through restaurants there is a range of quality. You may find some to be intolerably poor to delightfully supreme. Yet these drivers, at least those granted an operator's permit, have successfully passed an exam just as the restaurants have passed inspections from various government regulatory inspectors. Lawyers fall within a similar range of competence although all have passed a regulatory exam designed to limited competition. Oh I'll just say the reason given by those in control to appease the masses – to ensure that they are qualified to provide competent counsel and ensure your legal protections.

When it comes to custody of your child you are going to want an attorney that lies more toward the delightfully supreme than the intolerably poor in competence. You may not know how to measure that level of competence though and if you don't your reliance upon other could land you in an ill-fated custody proceeding. In this case Father was an attorney who practiced in a law firm. Here is a portion of the time-line related to his psychological problems and employment in the firm.

He was in counseling until October of 2001 when he began therapy. After being treated for about a year he terminated his therapy. He returned for treatment beginning in April 13, 2004, but then chose to terminate that treatment on June 15, 2004: the therapist noting “poor prognosis.” Throughout this time he was practicing law while in the firm.

In late July of 2004, a partner in Father’s firm found him “sobbing” and “shaking” with “his head down on his desk.” Father informed the law firm that he had a condition which was getting worse and that he was “drinking to cope.” He further disclosed that he had been advised to seek an “extensive . . . treatment program” for his problems. Father then took leave from his employment and went on short-term disability.

In October 2004 he was discharged from therapy and attempted to return to work. However, shortly thereafter he decided he no longer wanted to work for the law firm and terminated that relationship. During October 2004 he filed for divorce and the parties entered into a provision agreement towards the end of the month. He was not working at the time and chose to remain unemployed for six months; he then began work with another law firm in 2005.

At some point Father terminated his supervised parenting time with his child which his counsel explained was because Father thought the arrangement was upsetting the child. Father testified that to continue the arrangement would be “perpetuating . . . harm” to the child. Father sought unsupervised parenting time consistent with the guidelines.

A report by the GAL indicated that Father had been unwilling to “complete a psychological evaluation including a drug and alcohol assessment,” the Arbitrator concluded that Father “must be restricted to supervised visitation with his son under the current order until further notice.” Accordingly, it was ordered that Father “have therapeutic parenting time with [the child] through Choices, and shall continue until it is determined that unsupervised parenting time would not endanger the child’s physical health or significantly impair the child’s emotional development”; and that Father “have a complete psychological evaluation completed by a qualified professional” and which “include[s] a comprehensive alcohol and drug assessment”; and that Father “follow all recommendations made based upon the evaluation.” Father was not given unsupervised parenting time.

For much of the time that Father was engaging in behaviours that the court deemed to be potentially harmful to his child he was practicing law in two different law firms. The idea that he could get unsupervised parenting time upon a failure to abide by an agreement he made but didn't follow in regards to parenting time, including ceasing parenting time sessions, is absolutely misplaced.

You may think that if a law firm is employing him then he must be competent enough to perform his job. That assumption is in error. The self-described decision to treat psychological issues with a regiment of alcohol demonstrates the lack of rational judgment exhibited by this attorney. The decision to cease attending supervised parenting time with his child because it would be perpetuating harm demonstrates a mixed level of logical decision making skills. The better arrangement, I believe, would have been to decide not to be in a condition or exhibit behaviours that would perpetuate harm instead of suspending his relationship with his child.

With all of that known to then seek unsupervised parenting time demonstrates not only an unwillingness to accept responsibility for his actions but also that he apparently didn't feel a need to change his behaviours. Obviously, neither he nor his attorney were aware of the nuances of child custody decision making. Law schools don't teach how to litigate the nuances of child custody decisions that are -- as I say on my business card – “not about the law, but are judgments based upon parenting skills and behaviours.”

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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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