by Shawn Weber | Mar 10, 2011 | Uncategorized
By Shawn Weber, Esq.
http://www.bravewebermack.com
I frequently tell my clients that custody battles are best approached by telling a story. The judge is a human being who is affected by a story. Whichever party tells the best story at court typically does better. The problem for a lot of men is that there are stereotypes that can tell the story for them before they get a chance—even if that stereotype is wrong. For instance, many working fathers are seen as uninvolved in day-to-day parenting. Fathers who stay home with the kids are often perceived culturally as lazy and not contributing, even though they may be contributing just as much as a mother in the same role. Unfortunately, many dads just give up and don’t bother trying to tell the story. Dads who put forth an effort to articulate the narrative that they are involved parents do better. Here are some thoughts:
1. Don’t be “Disneyland Dad”. A common misconception about dads is that they only care about having fun with the kids. They take the kids on their visitation days to Disneyland or Sea World. Their evenings with the kids are spent playing video games or just eating pizza. While I am certainly an advocate of having fun, a dad can’t allow play to be the only interaction time he has with his kids. Rather, a dad should spend a significant amount of time parenting his kids in addition to playing. That means spending time with chores or homework. It means staying home when the kids are sick and being involved in appropriate discipline.
2. Be involved. Another problem with the stereotypical narrative is that dad’s are rarely seen as involved in the kids’ activities, school and medical care as the mom. Men can do a lot to overcome this assumption. First, dads need to make sure that they are involved in the medical and emotional care of the child. Dad should be at the doctor appointments as much as mom. Fathers should make sure they attend parent teacher conferences. Another good tip is to be involved in athletics with the child as a coach or team supporter. All too often, dads cede these responsibilities to mom to the detriment of their custody case.
3. Be responsible. I had a female client come to my office complaining that the father of her two children was irresponsible. “The problem in our marriage,” she said, “was that I had to take care of three children.” You can imagine how that narrative then translates in a custody battle. The mother often (and perhaps rightly) observes, “How can my ex-husband expect to step up and help take care of the kids when he can’t even take care of himself.” What is the lesson for men? Be responsible. This means pay support on time. Be on time for pick-up and drop-off of the kids. Remember your children’s birthdays. Attend parent teacher conferences. Remember your kids’ special events and show up without being prompted by the other parent. Make sure your kids take their medicine when they should and have a healthy diet when they are with you. Take care of bath time and get the kids to bed on time.
Additionally, a responsible father will help his child be responsible. Help your kids get their homework completed during your custodial time. Don’t ever get into a situation where the mom can correctly observe that the kids never get their homework done when they are with you.
4. Set boundaries with the other parent. Make sure that your rights as a joint legal custodian are respected. With the help of your attorney or mental health professionals, set clear boundaries about your co-parenting with the other parent and then keep to them. When a boundary is crossed, make sure the other parent is gently reminded. If the behavior continues, do not hesitate to involve your attorney.
5. Don’t overreact. Another mistake men make is that they overreact to little things. You don’t need to escalate your custody case to World War Three over something small. I had a client call the police anytime he felt slighted or called CPS anytime his kid came from the other parent with a scuffed knee. You can imagine how little this did to promote his image with the court as a reasonable parent.
6. Take the high road and be patient. Custody battles are won over time. Rarely is the final decision on parenting made at the first hearing. Rather this is a long process that can last for years. If you are the kind of dad who worked a lot while the other parent stayed home and cared for the children, you should not expect to have a 50/50 custody arrangement right away. Instead, you have to work up to it by showing that you are equally as important and involved of a parent as the mom.
Additionally, the other party will often overreach and make mistakes in proper co-parenting. You need to be ready to capitalize on those mistakes. The way to do that is to make sure you “take the high road.” That means that even though the other party may engage in harmful and inappropriate behavior regarding the children, you make sure that your behavior is above board all of the time. Show that you are the adult in the situation. The California courts prefer the parent who is more likely to foster an affectionate relationship between the children and the other parent. You need to be that parent.
Again, the person with the best story will win. Where fathers get into trouble is in not stepping up as a good, responsible, involved parent. You need to understand what judges are looking for in a good co-parent and then play that role. Not only is it good for your kids, but it shows that you are equally important as a parent. Your attorney can be brilliant in court, but if you are not helping him by playing a serious part in the parenting, you will lose. On the other hand, you will do well if you step up and play your part. Be the parent that the court wants you to be: responsible, reasonable and affectionate.
by Shawn Weber | Feb 22, 2011 | Uncategorized
Best Interest of the Child is the California Child Custody Standard
You hear it mentioned over and over again, “The Court makes a custody order in keeping with the child’s best interests.” However, seldom do you hear anyone define what “best interest of the child” really means. The factors that the court
Calfornia Family Code section 3041 defines “best interest of the child” for child custody
The factors that the court must consider in determining the best interests of the child are spelled out in California Family Code section 3011 as follows:
“In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
. . . .
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. . . .”
Cal. Fam. § 3011 (West 2011).
Check out this further reading:
https://weberdisputeresolution.com/irreplaceable-dad/
https://weberdisputeresolution.com/in-california-what-is-the-difference-between-legal-custody-and-physical-custody/
https://weberdisputeresolution.com/holiday-visitation-bring-peace-on-earth-to-your-kids/
https://weberdisputeresolution.com/divorce-options-workshops/
by Shawn Weber | Mar 19, 2010 | Uncategorized
By Shawn Weber, San Diego Family Law Attorney and Mediator
The Family Court in San Diego County, California requires parents in a custody dispute to attend mediation at Family Court Services (FCS). At Family Court Services, the parents meet with a social worker who tries to broker a parenting agreement between the parties. However, if no agreement can be reached, the Family Court Services mediator makes a recommendation to the Court. This recommendation is often “rubber-stamped” by the Judge as the Court’s order. Sometimes an attorney can argue to change certain provisions in the recommendation, but only very rarely are the recommendations ignored. “Mediation” is a bit of a misnomer for the process because FCS really acts as an arbitrator. Because the process is not confidential empowering the social worker to make a recommendation, the parties need to take it very seriously and prepare.
Because the judges rely very heavily on the recommendations of the Family Court Services mediator, you should prepare for the mediation as though you were preparing for trial. In fact, you need to prepare more thoroughly for mediation than you would for trial, because your attorney is not allowed to be present during the mediation to assist you.
The following is a list of points to keep in mind when you prepare for the appointment.
1. Before the Family Court Services Appointment:
a. You can attend the weekly FCS orientation, which is held the third Tuesday of the month from 12:00 to 1:00 p.m., and the first Thursday of the month at 4:00 p.m. at the Family Court, 1555 Sixth Avenue, between Beech and Cedar Streets in downtown San Diego (optional). No appointment is necessary, meetings are on a first come first serve basis.
b. Arrive on time for the Family Court Services mediation appointment. You will be asked to fill out an FCS Mediation Data Sheet.
c. Make an appointment to see your attorney, so you can prepare your presentation, and bring with you a list of important points that you wish to make.
2. During the Family Court Services Appointment:
a. First impressions are important.
FCS Mediators are human beings too, and although they try to remain neutral, they cannot help but be influenced by their first impressions of people. You should present yourself as the parent who puts the best interest of the child ahead of your own interests.
b. Take your time.
If the other parent makes accusations about you to the mediator that you think are irrelevant, wait for an opening and then ask the mediator if you may respond. Then be guided by the mediator‘s response. If you are being interrupted by the other parent, ask the mediator to stop the interruptions.
c. Try to stay “on task“.
Do not be drawn into an argument with the other parent about your past relationship. The task is to determine a parenting plan that is in the best interest of the children.
d. Be prepared for the FCS mediator to ask questions.
The Family Court Services mediator will question the parent who wants to restrict the other parent‘s time with the children. You will be asked to give reasons for your views. In order to limit visitation, you must show that some harm to the children would result.
e. No financial issues.
The FCS mediator does not discuss financial issues with the parents such as support or property division.
f. Remember that the Family Court Services mediator is not your therapist.
Nothing that either parent says can remain confidential. If child abuse is disclosed during the mediation session, the mediator has a legal obligation to make a report to Child Protective Services.
g. In cases of domestic violence, meet separately.
If you or the children were physically abused, or if the other parent alleges that you committed such abuse, the mediator must meet with the parents separately upon the request of either party. You should make this request before the meeting begins. If allegations of physical abuse are present, these should be discussed with your attorney before the mediation appointment.
h. You should prepare to substantiate allegations of drug or alcohol abuse.
Criminal convictions or arrests are the best evidence, and you should have documents available. The court file can be copied and made available to the mediator. The drug or alcohol abuser will usually deny the problem. You can request that the other parent submit to monitored drug testing.
i. Do not make an agreement that makes you uncomfortable.
The Family Court Services mediator may try to pressure you into agreeing by saying that is what he or she will recommend anyway. You can say that you want to discuss it with your attorney first. If you agree in mediation, it is almost impossible to get out of your agreement. If you do not agree, you can review the written recommendation before court and agree to it at that time, if you wish to do so.
3. After the Appointment:
a. Be sure to write down the name of the mediator and give it to your attorney in case you need to contact her.
b. Please telephone your attorney to let him/her know the outcome of your mediation. In that way, if an important point needs to be clarified, he/she can set up a telephone conference with the mediator before the mediator writes his/her report.
c. The written FCS report will be available on the day of the hearing, or before. Sometimes, FCS will mail it to your attorney’s office before the hearing. You will have an opportunity to review the report before the hearing if you are present in court.
Should you have any questions or concerns regarding the Family Court Services mediation, do not hesitate to contact your attorney.
4. Family Court Services Prep Coaching.
If you feel you need additional coaching prior to an FCS appointment and you have the funds to pay for it, we highly recommend it. There are a number of former FCS mediators who can help prepare you and coach you for your mediation appointment. We have had good success with such coaching. The FCS mediation prep coach can role-play with you. You can bounce ideas off the coach and he or she can advise you about how an FCS mediator would react. If you need a referral to such a coach, ask your attorney.
In summary, you need to take your Family Court Services mediation seriously. This is where the rubber meets the road in your custody case. The mediator’s report usually sets the tone for how your entire custody case will go. A bad report can be disastrous. So, prepare, prepare, prepare!
NOTE: Since we wrote this post, Family Court Services no longer provides “mediation”. It is now called “Child-Centered Parenting Counseling”. Essentially, the service is the same. But, because true mediators would never make a recommendation to the court, we refer to it with the new description.
