Some Thoughts on Child Custody Hearings

Thursday April 17, 2008 Doug 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 typically ask as part of a fishing expedition to see if they could find negative facts that could be used 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 with him, 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 interview that these were false statements. Yet, the FOC evaluator relied heavily on these assertions in making the final report. The FOC evaluators appear to have virtually unlimited discretion to determine "facts" based on nothing more than an assertion by one 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 assertion by 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 there would 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 is not surprising given the situation. What I found odd, however, was the handling of thee negative 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 was taken to be gospel truth, and treated as evidence that I was a stereotypical good-fornothing 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 evaluation system biased. Courts make more federal dollars when the child support obligation is the highest. This means that they have a strong financial incentive to rule against joint custody, firstly, and a strong financial incentive to rule for physical custody for the parent who earns the lower wage, usually the mother. See: Summary of Title IV-D Funding and Incentives A Review of the CSPER Report There is some evidence of Racketeering in some Michigan courts. I would be concerned that if I exercised my rights, I might both loose in court and face punitive punishment in the form of less access to my children, higher child support burdens, higher alimony burdens, more lawyer fees, etc. Racketeering in Michigan's Friend of the Court? When Might a Federal Racketeering Lawsuit Be Allowable? Fiction: John Q Public and The Friend of the Court: Before It Begins (Civil Rights)

Getting Results In Mediation
One of the complaints that I hear is that the biased custody evaluators are also conducting biased mediation. That is, due to the money issues, they will press during mediation to “resolve” the custody conflict 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 a written, 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 and hash 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 child support 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 ones make sure that's the case. Personally, I believe that the best way to solve this is for the two parents to come to a mutual agreement. I would urge you to do this as quickly as possible. Lawyers and courts are extremely expensive, 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 a Hearing
Firstly, please be aware that the Judge handles "de novo" review. One of the things that's important is that the judge can refuse to hear new evidence that was previously available to the parties before the referee hearing, and the judge can just look at the evidence and make a “de novo” review without even holding 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 a new opportunity to offer the same evidence to the court as was presented to the referee and to supplement that evidence with evidence that could not have been presented to the referee. .... (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 any memoranda, 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 by evidence that was not introduced at a previous hearing. It's my understanding that in the vast majority of cases, the judge will agree with the referee, who will agree with the custody evaluator. This is why I feel that it's important for me to get as much evidence in as early in the process as possible, and if there is evidence of bias in the process, to collect it and to politely complain about it as early, and as frequently, as possible.

General Preparation for A Custody Evaluation, a Referee Hearing, or Court
Firstly, I would read: Custody and Parenting Time Investigation Manual Particularly: Child Custody Factors Given a list of facts, itemize them and make a document presenting them, such as: Facts Regarding Child Custody Factors For Minor Children A, B, and C 1. Factor a: NameOfParent and NameOfChildren consistently and frequently display strong love and affection by saying "I love you" to one another. NameOfChildren sometimes say this first. NameOfParent sometimes says this first. 2. Factor a: NameOfChildren display love and affection by hugging NameOfParent frequently. 3. Factor a: NameOfParent displays love and affection by hugging NameOfChildren frequently. 4. Factor a: NameOfParent displays love and affection by taking NameOfChildren to store and purchasing a toy for them, usually once per week. 5. Factor a: NameOfParent displayed affection when he took NameOfChildren to see such and such an event on such and such a date. 6. Factor b: .... I would especially look at the questions that the evaluator is supposed to ask him/her self. For example: "Does one parent show kindness and courtesy toward the child more than the other parent?"

If I believed I did, I would note a fact as something like: Factor a: NameOfParent displays kindness and courtesy toward the children more than NameOfOtherParent. For example, NameOfParent always makes sure to ask the children what they want for dinner. NameOfOtherParent does not. Etc. Etc.

Preparation for Meeting with A Custody Evaluator
When I meet with a custody evaluator, it will typically just be myself, the other parent, and the evaluator. Typically, I will not be allowed a lawyer, nor will I be permitted an observer nor a witness in the room with me, and I will not be allowed to record anything. Basically, the evaluator can say that I did or said just about anything in his or her report. Naturally, if the evaluator is biased, this can be seriously detrimental to my case. Before meeting with the evaluator, I might also make a written request for a contemporaneous recording and a contemporaneous copy of my meeting with the evaluator, suitable for making a transcript if I later request. That way, if there is some dispute over what was said, I can review the recording, or request a transcript, or both. If the evaluator makes a statement that I feel is a lie, I may be able to use my copy of the recording to impeach his her testimony or recommendation. See related document: “Contemporaneous Recordings for Referee Hearings in Michigan” This request will probably be denied. In the request, I would also request that an impartial observer be present, and that my lawyer be present, if I have a lawyer. As an observer, my first choice would be someone who's integrity is impeccable, such as a minister. If this is impossible, a friend is better than no one. With no transcript or any AV recording, the impartial testimony of an observer is very helpful, if I later wish to rebut what I feel is a false or misleading statement made in the evaluator's report. This request will also probably be denied I would request to call a witness, such as someone who saw an incident. This witness can also serve as an observer. I would note the response. Being unable to call witnesses seems like a due process violation to me. The purpose in making these requests in writing is to establish for later review that I was denied these rights. After all, if I don't ask, then how can I later claim that they refused? Also, if I later allege that the evaluator was biased, I might argue that the court was aware of this fact and that's why they didn't want any recordings of the proceedings, any observers, or any witnesses there.

I would probably not secretly audio record the meeting, although honestly, I'm not sure what the legal status of such recordings would be. According to various sources, eavesdropping is a felony in Michigan, but Michigan courts have exempted participant recordings: Please remember that I'm not a lawyer, but I have noted reports that the rules can sometimes change for the convenience of those close to the court. If I was denied the right to record, and I do record, then this could probably be considered contempt of court, and I might end up with 6 months in jail. That's a pretty easy way to loose my custody battle, and wind up with a huge bill to boot.

Meeting with the Custody Evaluator
I would bring a pad of paper and several pencils or pens. I would write down everything that I could as we went along. I might also bring a briefcase. I would lock the pad up in my briefcase at the end of the hearing. Someone may attempt to take the pad of paper. At the start of the hearing, I might say: I object to the fact that the court has refused my request to allow an audio video recording of these proceedings, that I'm not allowed to have any witnesses present, and that my lawyer isn't allowed to attend these proceedings. If you agree, I would like to stop these proceedings right now, get the court recorder, and have him/her properly record these proceedings. The evaluator will probably mention confidentiality or offer some explanation. I would write down what they say and review the Friend of the Court Act. As far as I know, confidentiality applies only to mediation, not to other actions of the court, and a custody evaluation is in effect a delegation of the duties of a referee, and as outlined in the Friend of the Court Act, and Referee hearings must be contemporaneously recorded. I might object to the recommendation later on based on this, or based on the grounds that the evaluator isn't familiar with the law, but even though this is the case, I honestly do not think that such objections will work. Secrecy in custody hearings is just standard operating procedure, and nothing short of a significant appellate decision on the matter will change that fact. If the evaluator says that he/she if a room with recording is not available, then I would ask, did you ask the court recorder? What's his/her name? When did you ask him/her? If the evaluator doesn't have a good answer, perhaps the evaluator is lying to me. I would write down notes about this, and if necessary, object to the evaluator's report on the basis that the evaluator lied during our hearing about recording, and is not a neutral arbiter. Also, if the evaluator gives specific statements, I can subpoena the court recorder later and confirm/deny testimony. If the evaluator says that he/she doesn't know if such facilities are available, then I might ask that we

stop right now and get the court recorder to find out. The evaluator will probably deny that request. That's OK. The point is to establish that the evaluator is directly refusing to allow recordings of the proceedings. There was no misunderstanding. It was the evaluator's choice. While these concerns will likely be ignored by the court, for which these non-recorded hearings are standard operating procedure, these objections might be given more weight in any subsequent appeal or federal civil rights lawsuit or federal racketeering lawsuit that I might file: Before starting the hearing, I might ask: Before we begin, can I ask a few questions to verify your credentials? If the evaluator disagrees, then I would note this. Now, as I start writing, the evaluator might object. This is how I might handle such a situation. It's critical to be absolutely polite and calm. Evaluator: You can't take notes. Me: This is a custody evaluation hearing under the authority of Judge SoAndSo and Referee SuchAndSuch. Did they tell you that you are empowered to prevent me from taking notes? Evaluator: You just can't take notes. If you continue, you will be held in contempt of court. Me: So you're asserting that in denying me the right to take notes, you're acting on the authority of Judge SoAndSo or Referee SuchAndSuch? When did they tell you that participants can't take notes? When did they tell you that you can find people in contempt for refusing your orders to not take notes? Evaluator: It's just not something that we allow. It's policy. Me: Who gave you this policy? Where is it written? May I see the policy document? Evaluator: <Exasperated> No you may not! Me: Are we in mediation? If not, then this custody evaluation is part of the referee process, of making a recommended order, according to MCL 552.507, Section 7, Paragraph 2, Subparagraph c. There is supposed to be a record of these hearings according to Subparagraph d. If so, I exercise my right to refuse mediation, because I don't see how you can both write a recommendation and maintain mediator confidentiality under MCL 552.513, Section 13, Paragraph 3. Besides, as an employee of the FOC, you can't act as both a mediator and an evaluator in this case anyway under MCL 552.515. Evaluator: <Exasperated> Just stop writing! Me: Respectfully, I believe that I have the right to take notes of this hearing. I will

continue to take notes. If you choose to end this hearing, then I understand. I will speak with Judge SoAndSo or Referee SuchAndSuch about it. If they attempt to hold me in contempt for exercising my rights, I'll face it then. I would make a note of the evaluator's objections. Honestly, I can't imagine a referee or judge who in open court who actually holds a parent in contempt for taking notes and trying to make his/her case. It seems like a pretty obvious violation of that parent's fourteenth amendment due process rights to his/her fundamental liberty interests in the care and custody of his/her children (Troxel V Granville), but stranger things have happened. More likely, the evaluator will write that I was hostile, and the court will find me in contempt for that. I guess I would just state respectfully on the record that I was not hostile, nor would a reasonable, neutral observer think such a thing. The evaluator prevented me from taking notes, and I was denied by the court recording of the hearing, observers, witnesses, and a lawyer, and that the custody evaluator is lying, and this is about the evaluator who is intentionally preventing participants from taking notes in violation of the Friend of the Court Act and their own due process rights. Personally, I don't know to what extent I would push it, but with no notes, it will be virtually impossible for me to object to any recommendation at a later date. If I feel the evaluator is biased, once I stop writing notes, then I've already lost. It's possible that a particularly annoyed evaluator may send for a bailiff to seize my writing utensils. If that happens, I might walk out. If I am physically prevented from walking out, I might refuse to answer any questions until after I speak with my lawyer. AFAIK, it doesn't matter if I actually have a lawyer at that time, just that intend to get one. If I later fail to do so, because I can't afford one, then those are the breaks. Naturally, the evaluation will not favor me, but if I sincerely believed that the evaluator wasn't going to favor me anyway, there's little I can do about that. I can point to my lack of participation due to a misunderstanding of the rules later to request a different evaluator conduct a different hearing. I would have a prepared sheet of credentialing questions: I might present a form and ask the custody evaluator to verify his/her credentials. I would say something like: For my family's protection and your protection, I need you to take just a second and check through these questions to verify that you are qualified, which I'm already sure you are. This is just a formality. If the evaluator won't look at the form, I would have to decide whether or not this matters so much that I will walk out. I might ask them the first question directly. They should answer “yes”, obviously they should. Then I would proceed until the form is done, checking their answers, and ask them to sign what they'd already agreed to verbally. If they're not willing to answer simple questions, I might wonder if they have something to hide. I might present their refusal to answer simple questions as evidence that they know they aren't doing their job properly when arguing that they made the wrong recommendation. I would also subpoena them as a witness and ask them before the referee, if it gets that far.

Verification of Custody Evaluator Credentials Do you have knowledge of the court systems of this state and the procedures used in domestic mediation matters? (Friend of the Court Act, Section 13, Paragraph 4) [ ] Yes [ ] No, Explanation _________________________________________________________ Do you have knowledge of other resources in the community to which the parties in domestic mediations matters can be referred for assistance? (Friend of the Court Act, Section 13, Paragraph 4) [ ] Yes [ ] No, Explanation _________________________________________________________ Do you have knowledge of child development, clinical issues relating to children, the effects of divorce on children, and child custody research.? (Friend of the Court Act, Section 13, Paragraph 4) [ ] Yes [ ] No, Explanation _________________________________________________________ Are you an employee of the Friend of the Court who is performing both domestic relations mediation in this friend of the court case involving these parties and who is also performing referee functions, investigation and recommendation functions, or enforcement functions as to any domestic relations matter involving these parties? (Friend of the Court Act, Section 15) [ ] Yes [ ] No Will you base your recommendation exclusively on the best interests of the child as defined in the twelve custody factors specified in MCL 722.23 and as explained in the Custody and Parenting Time Investigation Manual? [ ] Yes [ ] No, Explanation _________________________________________________________ Has anyone instructed you or encouraged you to make or not to make any particular recommendation in this case or in your handling of cases such as this in general? [ ] No [ ] Yes, Explanation _________________________________________________________ Will you act with honesty, integrity, and impartiality? [ ] Yes [ ] No, Explanation _________________________________________________________

Are you prepared to recommend for sole physical and legal custody for the father if the facts warrant it? [ ] Yes [ ] No, Explanation _________________________________________________________ Are you prepared to recommend for joint physical and legal custody if the facts warrant it? [ ] Yes [ ] No, Explanation _________________________________________________________ To the best of your recollection, have you ever made 20 or more custody recommendations? [ ] Yes [ ] No To the best of your recollection, have you ever made 100 or more custody recommendations? [ ] Yes [ ] No To the best of your recollection, have you ever made a single recommendation for joint physical and legal custody? [ ] Yes [ ] No, Explanation _________________________________________________________ To the best of your recollection, have you ever made a single recommendation for physical and legal custody for the father? [ ] Yes [ ] No, Explanation _________________________________________________________ I certify that these statements are true.

Signature of Custody Evaluator _________________ Name of Custody Evaluator _________________ Date _________ Time

Like I said, I'm not a lawyer. There may be a way to get the evaluator to answer these questions before the hearing, but I don't know. In many cases, “custody evaluators” are also mediators. I might look at this document for some ideas:

Friend of the Court Mediator Questions Doug Dante For all that have “explanation”, obviously the answer without the explanation is the one in the referenced law or by common sense. For the FOC Act, Section 15 question, answering “yes” is not a situation allowed by law, and may allow me to reject the recommendation later. For the last four questions, If the evaluator has made more than 100 recommendations, and has never made a single one for joint physical or legal custody or for the father, I would expect a recommendation against me, and I would argue that the evaluator is biased, and unable to fulfill his/her lawful duties to use the custody factors to make a custody recommendation, instead he/she relies exclusively on gender. If 20+, that could be 99 recommendations. That's a very iffy, but I might still try. For my list of facts, I would give a copy to the custody evaluator. I would mention that it is a certified copy, so that if he/she is biased, and he/she intends to “loose” this document, then he/she knows that I will testify to the fact that any copy I produce to later rebut his/her recommendation is an identical copy, and I'll have the certification to prove it. I would then ask the custody evaluator to sign for the receipt. I would mention that if this were a referee hearing, the admission of evidence would be “in camera”, meaning on the record, and for his/her peace of mind as well as mine, I would like an acknowledgment that I've submitted this document as evidence. I would get the signature and keep the receipt. The receipt would simply be something very simple like: Verification of Receipt of Evidence I have received the document entitled “Custody Factors for Minors NameOfChildren”, XXX pages, authored by NameOfParent”

Signature of Custody Evaluator _________________ Name of Custody Evaluator _________________ Date _________ Time

If the evaluator refuses to sign, I would write”refused to sign”, sign it myself, and insert the name of the evaluator and the date. I would later use this refusal to sign against the evaluator if I felt his/her evaluation were biased. I would argue that the evaluator intended from the start to distort the facts, and that's why he/she refused to sign a simple receipt. I was therefore effectively denied my rights to present evidence on my behalf. Having a second certified copy in hand, I would check off each fact as I mention it verbally. If it doesn't come up in conversation, I would list each fact at the end. If the evaluator leaves and refuses to hear my testimony, I would note that fact.

If I believe that the evaluator is avoiding asking questions that would favor me, I would insert those facts in my answer. For example, I feel that the evaluator isn't asking me about my relationship with my child, I would insert that information in an answer to a different question: Evaluator: Do you have a bedroom for your child? Me: I show love and affection to NameOfChild in many ways. I regularly take him to the neighborhood park. I also show affection by hugging my child each day, and he hugs me back. This is in contrast to NameOfOtherParent, who is often distant. Yes, one of the things I did for my child was to ensure that I've provided for him by having a bedroom for him. As I say each of the facts from my sheet, I would check them off. Now if the evaluator is attempting to manipulate the evidence on record, and I'm preventing him or her from doing that, he or she is going to start getting upset. It's important to be polite. Evaluator: Just stick to answering the questions I gave you, and stop trying to be cute. Me: I'm doing my best to give you full and accurate information. Evaluator: Don't go off on a tangent. Just answer the questions I give to you. Me: I am giving you the truth, the whole truth, and nothing but the truth. If I feel that the evaluation is guaranteed to be biased, my goal isn't to appease the evaluator. The evaluator is going to rule against me no matter what I say or do. My goal is to establish the evaluator's bias. I think that it's therefore crucial to ensure that I repeat all of the facts that I believe that the evaluator will attempt to omit from his/her report both verbally and in writing, and establish with as much evidence as I possibly can that the evaluator's omission of these facts is intentional and due to his/her bias. If I recall correctly, evaluators are supposed to include a report of all "relevant facts". Since I've already listed exactly each factor that a fact pertains to, unless I've made an error, each fact is relevant. Since the report should include all relevant facts, all of these facts should be considered in the report. If the evaluator states that a fact is not admissible, I would ask if he/she is a lawyer. If not, I would politely point out that he/she is not properly trained to review the rules of evidence, and I believe that the evaluator should instead include all relevant facts, and allow the referee / judge to handle admissibility. Even if the evaluator is a lawyer, I would point out that admissibility is a judicial decision, and that the evaluator should leave the fact for the referee or judge to decide. I have sometimes heard that evaluators who are biased use the "admissibility" excuse to prevent awkward facts from making it into evidence. I would note his/her complaint and response to a fact next to that fact on my list of facts, or in my sheet, including the fact number. This objection could be used as evidence that the custody evaluator was trying to manipulate the facts that made it to the court and

prevent me from presenting my full case in court. Also, if the evaluator knew that he or she could not handle admissibility, and he/she told me that a fact was not admissible, then I could allege that the evaluator was fraudulently attempting to pervert the course of justice by not only keeping my facts from evidence, but giving me the fraudulent impression that he/she previously ruled on admissibility. The evaluator would then intentionally give me the false impression that the admissibility of those facts had already been properly decided, and I could not enter those facts into evidence later. Such fraud might be an element in showing that such actions were an act of racketeering, and part of a racketeering scam designed to violate my civil due process rights to my fundamental liberty interest in my relationship with my children (see Troxel V Granville). After the meeting, I would go immediately and have a certified, time and date stamped, copy of my notes taken, as well as my check-marked list of facts. That way, no one may allege later that I falsified my notes after the fact. If the meeting ends at 2:30PM and I have a certified copy of my notes made by 2:45PM, it would be pretty difficult for me to manipulate them significantly in that time frame. For this purpose, it's helpful to know ahead of time where the closest place I can make a certified copy once I exit the meeting. I might have an envelope there at the hearing, and lick it, and seal my notes in the envelope. I would then sign across the seal and ask the custody evaluator and other party to also sign across the seal. If they refuse, I would write “SOANDSO REFUSED TO SIGN”. Later, I would ask a notary to write a brief note stating that I delivered the envelope to him/her with the seal still in tact, and that he/she made the certified copies on the spot. That way, there's no possibility that I manipulated my notes after the fact. I would keep the notary's statements, the envelope, and all copies of my notes. I would also make sure that I give a certified copy of all documentation to a trusted friend or relative for safe keeping.

Responding to A Custody Evaluator's Recommendation
The evaluator will then most likely generate a written recommendation. When responding to a custody evaluator or referee recommendation, I would respond in writing as well as during the referee hearing, presenting these as "objections to findings of fact”: At any referee hearing, I would seek to obtain a contemporaneous recording of the hearing, and object if I'm unable to get one: If denied witnesses during the custody evaluation, I would call witnesses at the referee hearing. If the other party made allegations, and I have proof that those allegations or false, or I want to enter any more evidence into the record, I would do so at the referee hearing. The referee will likely ask me to respond to the evaluator's recommendation. For example: "I object to the Evaluator's/Referee's finding of fact that Factor a, love and affection favored NameOfOtherParent. I believe that Factor a should favor NameOfParent, or

possibly not favor either party. This is because (insert facts above)" As NameOfParent, I would then object to this finding of fact both in writing and verbally to the referee by simply reading my prepared statement, in addition to the written objection. Given this, the court may be swayed to change factor a from favoring the other parent to favoring neither party or favoring me. I would then allow the referee to change Factor A or refuse, then move on. I would then work at every factor that was already not to my advantage, starting with those favoring the other parent. Through this, I would try to secure as many factors as possible. I would have as many facts on hand as possible. After this is done, I would review the new factors. How many favor me? How many favor the other parent? How many favor neither? Using this, I would object to the recommendation at a referee hearing. I would request a contemporaneous recording of the referee hearing. Sometimes this will be denied, but I would again object on the record. The referee hearing should be recorded. I would also repeat my previous objection to the lack of recordings, witnesses, or lawyers at the original custody evaluation. Contemporaneous Recordings for Referee Hearings in Michigan If I wanted, I would make sure to request joint physical custody. I would definitely make sure to request joint legal custody. Joint Legal Custody is not supposed to make a lot of difference, but in practice, it does. If there is a parenting time dispute, a legal custodian has a lot more rights. Specifically, the police can't hassle a legal custodian and accuse them of kidnapping if they get a flat tire and are late in dropping off their children, etc. Also, a legal custodian has more rights to move away decisions. A legal custodian often finds it much easier to get medical and school records. A legal custodian can pick up children from school in an emergency. If the children end up in the care of DHS, a legal custodian can get them quicker and easier. If the other parent dies, a legal custodian automatically gets custody, etc, etc. I would object to any custody recommendation not giving me joint legal custody, reviewing the list above, and stating how each of these help the child by ensuring that he/she has both of his/her loving parents in his/her life. I would review the evaluator's report, and examine my list of facts again. For each fact, I would verify that it's in the report or not in the report. If I object to the evaluator's proposed recommendation, or if referee hearings are automatic (as they should be under the Friend of the Court Act, MCL 552.507, Section 7, but whatever), if the evaluator

neglected to include a fact that I had both given him/her in written form and to which I had testified, I would note it. If the evaluator did a really bad job, and omitted many facts, or distorted them, I would request a transcript, (possible only if there was a recording), and call the evaluator as a witness before the referee (MCL 552.507, Section 7, Paragraph 1, Subparagraph b). My goal in asking the evaluator questions on the stand would be to show that the evaluator is biased, and that his/her report should be tossed in its entirety. Otherwise, the evaluator's report will likely be treated as truth, it will most likely be passed on and reinforced by both the referee and the judge, and the court of appeals will only look at it using a very broad standard of review, and it will assume that the evaluator is both competent and neutral. I believe that it's crucial, if I believe that this is not the case, that I establish as early in the process as possible that the evaluator is biased or not competent. The court might refuse any subpoena I make for the custody evaluator to testify. I would object to this at the referee hearing on the record, and argue that the custody evaluator is biased, but I can't get him/her up on the stand to prove it, and the court is denying me my rights to a fair trial. Civil Rights: Fiction: John Q Public and the Friend of the Court: Before It Begins If the referee creates a “burden of proof” or a “presumption” that the custody recommendation is correct, I would object to the referee's recommendation on the grounds that If I felt that the custody evaluator showed a pattern of bias by minimizing or distorting alleged facts supporting me, and/or emphasizing or otherwise supporting alleged facts supporting the other party, I would very politely state that I felt that the behavior of the custody evaluator showed his/her bias, and that he/she is unable to make a valid custody recommendation, and that using anything that he/she wrote, says, or does to determine custody is a violation of my due process rights to my fundamental liberty interests in the care and custody of my minor children. I would have at least 3 concrete examples of this. Fiction: John Q Public and the Friend of the Court: Before It Begins (Discusses parent's civil rights) If I felt that the custody evaluator lied on the report, I would consider politely stating it during the referee hearing. For example: Me: I feel that factor c should favor me, because I have consistently worked at a job making a decent wage, and I consistently use the money I make to support my children. My “education and training” is sufficient to ensure that I earn a decent wage to prepare for my children's needs.

Evauator's report: NameOfOtherParent should be awarded factor c, because NameOfParent has an attitude about making more money than name of parent, and this may harm the child. Firstly, attitude is not covered under factor c. That would be evidence under some other factor. Secondly, if I honestly was just making my case, I was being polite about it, I have to ask myself. Did the evaluator really believe that I presented an attitude about making more money? Would a neutral and prudent observer believe such a thing? If I believe that the evaluator was biased, and was seeking for any excuse to rule against me, I might believe that the evaluator intentionally lied about my attitude. I presented no attitude. I was respectful and polite, and I was just making my case. Therefore, this part of the custody evaluator's report, in my view, isn't just a mistake of a reasonable and neutral party exercising a judicial function. Rather , this part of the evaluator's report is a direct fabrication. In other words, a lie. In other words, perjury. Given the set of recommendations, conclusions or findings of facts with which I disagree, if I honestly felt that the evaluator lied in a small subset of those areas, then I feel, that in the interests of justice, I would be obliged to make the case that those parts of the recommendations were lies. For each statement I felt is a lie, I would make at least 3-4 supporting statements. For example: I was polite at all times. I never showed disrespect for the other parties nor did I raise my voice. I asked the court to allow recordings so that we would have objective evidence if there was some disagreement about what took place, and the court refused my request. The evaluator's body language indicated that he/she didn't like me. He she gave me dirty looks. He/she turned away from me. He/she frequently interrupted me. He/she refused to let me speak. He/she said a specific thing to indicate bias. I would also state that I believe that no prudent and neutral observer would have drawn this conclusion about my attitude, and I was not allowed an observer despite my requests. If the referee cuts me off, and says something like “I will not allow you to call NameOfEvaluator a liar” I would note this. I would not pursue this line any further, but rather I would enter a case note on the record with a written and detailed report of my findings regarding the evaluator, including my belief of intentional deception, as well as what happened when I presented this information to the referee. If the court clerk refuses to add the case note to the court record, I would include any evidence that I can gather that such refusal took place, including a written refusal, return receipt requested postal receipt for the case notes to the clerk, etc. I would then include all of this information if I later seek redress in the court of appeals, and ask that it be considered as part of the appeal, as the court improperly prevented me from presenting this evidence. I would argue that the court made a clear legal error on a major issue when it prevented me from testifying about the credibility of the evaluator, who is effectively a witness. The recordings and receipts will show that this is the case.

Responding to A Referee's Recommendation
The referee will then most likely generate a written recommendation. In most cases, it will just be to

approve the evaluator's report. If the referee is biased or distorts the facts, or just refuses to review the evidence, I would call the referee as a witness during the de novo hearing on the grounds that I could not cross examine the referee during his/her own hearing, and his/her behavior was not evident in it's totality until after that hearing, meaning that I did not have access to his/her behavior in my case until after that hearing is complete, therefore, that evidence was not available and the judge needs to consider it now (MCL 552.507) in order to rebut the referee's report, which is a form of testimony. Again, my goal in asking the referee questions on the stand would be to show that the referee is biased, and that his/her recommendation should be tossed in its entirety. However, the court may also deny me access to the referee (or a hearing all together, see above). If I felt that the custody evaluator was biased, and I felt that the referee was either biased or refused to allow me to prove the custody evaluator's bias, or both, but I can't get him/her up on the stand to prove it, and then I would feel that the court is denying me my rights to a fair trial and made a clear legal error on a major issue. I would make such statements on the record.

Responding to A Judge's Ruling
Sometimes a judge or referee will request more expert advise before making a ruling. Those experts can sometimes incorrectly drag out their process for the majority of a year or more. During that time, the court might give the other parent temporary full physical and legal custody. However, the effective result of calling in the expert is not to resolve the dispute, but rather that the expert takes so long to make a decision that the child now has an existing custodial environment with the other parent, and the original custody dispute may be rendered moot. It would be important for me to be aware of time limits and to make sure that excessive delays don't negatively affect my relationship with my children: What if the Court Fails to Rule Promptly on Custody? Once I have the judge's ruling, I would read it carefully. If it was given orally, I would review the contemporaneous audio. Contemporaneous recordings at the time of the hearing can be crucial in allowing me to make an accurate and timely appeal, as court reporters can sometimes take so long that I'm unable to get a transcript in time to later make a timely appeal. I might make a motion for reconsideration or take it up on appeal in the court of appeals. The court of appeals will not conduct the trial again. They will only intercede in a custody ruling under very specific circumstances: Domestic Relations - Child Custody - Review – Standard A child custody order must be affirmed on appeal unless the trial court's findings were

against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28 To clarify: “the trial court's custody decision is entitled to the utmost level of deference.” Shulick V Richards December 19, 2006 70916_35_204O.270916.OPN.COA.PDF Clear legal error seems to me to be easier to establish: “Clear legal error occurs when a trial court “incorrectly chooses, interprets, or applies the law.” Mason v Simmons, 267 Mich App 188, 194; 704 NW2d 104 (2005). As referenced in: 80622_31_280622.OPN.PDF A more thorough review of appeals court rulings, even an informal one like this from an interested citizen, and not a lawyer, would take many more documents and much more time.

Responding to an Appeals Court Ruling
My options are limited in Federal court, but available. Federal Civil Rights cases normally require that people who allege civil rights violations have presented their concerns to the state courts previously handling cases which involve their civil rights, and have exhausted their appeals in state courts. That's why it's helpful to make statements about the unfairness of the proceeding and the violations of my rights on the record as early, as frequently, and as clearly as possible. If the system is rigged, I'm not aware of a good way to win. However, I would encourage you to find a good and honest lawyer. Racketeering in Michigan's Friend of the Court? When Might a Federal Racketeering Lawsuit be Allowable? Fiction: John Q Public and the Friend of the Court: Before It Begins (Civil Rights)

Begins Best of luck!

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