Some Thoughts on Child Custody Hearings

Thursday April 17, 2008Doug Dante

“[I]n my case the evaluator left out virtually all facts that might hurt the mother, and also left out any facts that might help me. ...“I got the distinct feeling the evaluators had a series of questions they would typicallyask as part of a fishing expedition to see if they could find negative facts that could beused against the father. It didn't seem a like balanced effort to try to understand what was really going on in a particular situation and determine the factors that would provide some real information concerning what would be best for the child. For example, they did not ask if I had a close relationship with my child, if I played withhim, etc. It was as if those types of questions would have led to answers tending to show I had a close, loving, positive relationship with my son, and those were not the kinds of facts that would have helped them in their effort to reach the predetermined conclusion:the mother gets custody.“The bias is subtle at times, but it starts to stand out once the patterns are recognized .... Another very odd thing about the FOC evaluation was the handling of assertions by my son's mother about me. During the interview, my son's mother made a great number of false and/or highly distorted statements. I pointed out (correctly) during the interviewthat these were false statements. Yet, the FOC evaluator relied heavily on theseassertions in making the final report. The FOC evaluators appear to have virtuallyunlimited discretion to determine "facts" based on nothing more than an assertion byone of the parents, without any corroborating evidence whatsoever. The evaluator can simply chose to accept one statement as fact, and ignore a statement by the other parent,without putting anything in the final report to indicate the "fact" is simply an assertionby one parent that was directly contrary to statements by the other parent. It's quite possible that an FOC report will be based on almost completely false facts,and therewould be no way to know any of the facts were even in dispute when reading the report. Also, during the interview both of us made negative statements about the parent. This isnot surprising given the situation. What I found odd, however, was the handling of theenegative statements by the FOC evaluator. Everything seemed to go through a filter of sorts that only allowed through information that was consistent with a preconceived concept of fathers and mothers: anything negative my son's mother said about me wastaken to be gospel truth, and treated as evidence that I was a stereotypical good-for-nothing father. Anything negative I said about my son's mother was treated as being evidence I was brute who was just trying to run her down by saying bad things about her. It's a neat trick that turns everything into evidence that supports the desired conclusion. ( ... the FOC is the only entity I've ever had any dealings with that consistently has this very bizarre interpretation of "facts")

Anonymous dad in Michigan

Warnings and Preconditions

I am not a lawyer and this is not legal advise.These thoughts discuss Michigan law. However, many other states likely have similar statues.Please be aware that the financial incentives of Title IV-D may make any evaluator biased or evaluationsystem biased.Courts make more federal dollars when the child support obligation is the highest. This means thatthey have a strong financial incentive to rule against joint custody, firstly, and a strong financialincentive to rule for physical custody for the parent who earns the lower wage, usually the mother. See:Summary of Title IV-D Funding and Incentiveshttp://www.scribd.com/doc/630611/A-Quick-Summary-of-Title-IVD-Funding-and-IncentivesA Review of the CSPER Reporthttp://www.scribd.com/doc/477791/A-Review-of-the-CSPER-ReportThere is some evidence of Racketeering in some Michigan courts. I would be concerned that if Iexercised my rights, I might both loose in court and face punitive punishment in the form of less accessto my children, higher child support burdens, higher alimony burdens, more lawyer fees, etc.Racketeering in Michigan's Friend of the Court?http://www.scribd.com/doc/454566/Racketeering-in-Michigans-Friend-of-the-CourtWhen Might a Federal Racketeering Lawsuit Be Allowable?http://www.scribd.com/doc/959159/When-Might-a-Federal-Racketeering-Lawsuit-Be-AllowableFiction: John Q Public and The Friend of the Court: Before It Begins (Civil Rights)http://www.scribd.com/doc/404652/Fiction-John-Q-Public-and-the-Friend-of-the-Court-Before-It-Begins

Getting Results In Mediation

One of the complaints that I hear is that the biased custody evaluators are also conducting biasedmediation. That is, due to the money issues, they will press during mediation to “resolve” the custodyconflict by giving one parent sole physical and legal custody of the child.There are various court rules for selecting mediators, but if all possible, if I were you, I would send awritten, certified, return receipt requested invitation to a mediation session with someone that you both

trust. In particular, a minister. I might offer several choices. Mom and dad can sit down together andhash through this without $300 per hour lawyers.I would just try to get a written agreement on the parenting time schedule, and volunteer to pay childsupport by the proper application of the Michigan Child Support Formula Manual.As lawyers often say, by the time they're involved, the parents have already lost. Sadly, some bad onesmake sure that's the case.Personally, I believe that the best way to solve this is for the two parents to come to a mutualagreement. I would urge you to do this as quickly as possible. Lawyers and courts are extremelyexpensive, and it's not in the interest of the children that they parents spend a lot of money on them if it's not absolutely necessary.

The Judge Can Refuse to Hear New Evidence and May Not Even Hold aHearing

Firstly, please be aware that the Judge handles "de novo" review. One of the things that's important isthat the judge can refuse to hear new evidence that was previously available to the parties before thereferee hearing, and the judge can just look at the evidence and make a “de novo” review without evenholding a hearing with the parties:Michigan Law, MCL 552.507, reads in part:

A hearing is de novo despite the court's imposition of reasonable restrictions and conditions to conserve the resources of the parties and the court if the following conditions are met:(a) The parties have been given a full opportunity to present and preserve important evidence at the referee hearing.(b) For findings of fact to which the parties have objected, the parties are afforded anew opportunity to offer the same evidence to the court as was presented to the refereeand to supplement that evidence with evidence that could not have been presented to thereferee.....(6) Subject to subsection (5), de novo hearings include, but are not limited to, the following:(a) A new decision based entirely on the record of a previous hearing, including anymemoranda, recommendations, or proposed orders by the referee.(b) A new decision based only on evidence presented at the time of the de novo hearing.c) A new decision based in part on the record of a referee hearing supplemented byevidence that was not introduced at a previous hearing.