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Well, maybe it's not shocking to many of you... .

My custody evaluation finally concluded after 8 months, despite being court ordered to be completed in 90 days.

I thought the worse case scenario would be that we have to keep the current temporary custody schedule, where ex H has D3 5 out of every 14 overnights (every other weekend and one weekday overnight each week). 

As a complete surprise, the evaluator believed exes lies that he is not abusive nor has drinking problems and his stories that I am fabricating and exaggerating in order to "keep D3 away from him" and suggested a 50/50 custody schedule!

I feel so betrayed, I can't even put it into words... . not believing a true victim of abuse who is speaking up and trying to do the right thing... . after I read the report, I thought "this is why I have no voice anymore.  Why talk, when no one listens?"

What  a hole I have to dig out of now!

My main problems with the whole evaluation are 1., the evaluator suffered a "sudden tragic and accidental death" of her 29 year-old stepson on Sept, 28th, alleging this is the cause for the delay... . should she even have been doing this evaluation?   L says we can't go there, she would be indignant, it would sour grapes, they would say what I am going to do, request new evals until I like what I hear?

2.  she never contacted the therapists... . either the one that we saw together in couples counseling who also saw ex alone several times and I know has insight into the fact that ex H in not in touch with reality and represents an extreme case.  Why didn't she?  I signed forms allowing her to do so.  If he didn't, isn't that  big red flag?

3.  the decision is the opposite of being in the best interest of D3

I am meeting with L today.  He says we can try to "shoot holes in her report".  The picture of me that she has derived is simply incorrect. 

I think I need to at least press the issue of her talking with the therapists... .

I'm just in shock and disbelief!

How are you all doing?  I miss being in touch... .

I've heard that the way to go is to hire another expert, a psych, for a few thou.  That person can talk to the shrinks and poke holes in the report.  You can get someone who is well known to the court.  But that is a lot of money to spend.

Usually it seems that men are the one disbelieved in these instances.  I guess they can work against anyone.

I'm sorry for such a shocking and ridiculous result.  Sounds like she was lazy and bought lies from a (charming?) man.  

I think you can fight it.  Your lawyer at least sounds confidence, whereas some are not.

This is why I never asked for an eval for my ex, although I was just questioning it (again) an hour ago.  It's really rolling the dice to go to court.

Hire another psychiatrist?  the evaluator isn't a psychologist or psychiatrist, but a therapist... . and she hasn't even talked to the psychiatrists that have insight into who me and exH really are! 

Yes, she bought all of his "charming" lies and his self-portrayal as my victim... . disgusting

Will see what L says today... . I am just dying inside... . poor little D3

I had a court ordered eval. I live in Pa. It is a hybrid eval to minimize costs. It is horrible and is extremely biased. Many of the judges in my county will not hear a custody hearing without it. It's a big money maker for all involved. It was flawed in many ways. I had to hire a forensic psychologist ($5,000) to testify that the report was extremely flawed and biased. He was very professional and did a really good job. He tested me with various tests including MMPI. However, Bucks County, Pa is noted as one of the worst places for fathers and custody in the state of PA. I believe it is ranked as one of the bottom three in the entire state. I also had an incompetent attorney. It took me a while to figure that out. Now that I know the rules of the game and have a better attorney I am better prepared and am seeking more time. I have been dealing with this since 2007. Fortunately, it has made me a much better parent and our kids are doing better than I had expected back then.

That's what I mean - you get an opinion from a psych.

david,

I am glad you replied.  I am also in PA.  Dauphin County... . the forensic psychologist idea is interesting... . how did he go about that?  MMPI was included in our eval, and although we both fell within normal, she painted a much worse picture of me.  Right now my attorney is saying to lay low and not say anything, keeping the current schedule going, and then we can say that not only is the report stale, but point out the many flaws... . I am not sure what to think other than I am still shocked that this man with a pathologic personality was perceived as the honest and more normal one!  I am insulted to be a victim of abuse, who is essentially being called a liar/exaggerator.  I told no lies and made no attempts to stretch any truths... . who will ever listen?

I go to a grass roots organization called face (it used to be called father's and children's equality and has changed it's name to family and children's equality). They have meetings all around this area. They had a guest speaker that was a forensic psychologist. He answered every question, in my opinion, openly and honestly. My atty didn't know anyone really good and I suggested him. After the hearing my atty said he was very good on the stand. What I have discovered is that in my county the court system has a bunch of regulars. Finding someone that doesn't just go through the motions and collect a check is the first step to getting things done for the kids.   

I think your last point is a very valid one.  More specifically, though, what did he say was flawed and biased about the evaluation report... . I still just can't believe what has happened here, but need to try to think how to best handle it moving forward.  D3 deserves better... .

what would you suggest is the best way to find a good forensic psychologist to do this?

david, may you contact me through a personal email message to discuss who you hired?

So some strategies to consider:

* Stall - move slowly so this report will become stale.  Keep things as they are as long as possible, and make sure the kids are doing well, so you can say, "Why change?".

* Find a solid psychologist who can contact the other professionals, and prepare a better report.

* Impeach the evaluator's report (and maybe the evaluator himself).  Show that he did not talk to the other professionals, and that some of what he wrote was objectively false.  Put him on the stand and make a fool of him.  This is a high-risk strategy but it might be necessary.

* Find evidence that you are a good parent and that your ex isn't.

Maybe you can discuss all these and any others you can think of with your attorney and form a plan you both feel good about.

you can ask if your lawyer recommends anyone.  maybe see if there are divorce support groups in your area and ask the people if they used someone.  and google.

nowheretogo,

What a blow! If I remember correctly, didn't you consider hiring a private investigator at one point? If you are concerned about the substance abuse issues, is there a way to document how much he consumes?

He doesn't have a good relationship with his older son, does he? Did the CE not take those relationships into account... . maybe they can't, if they aren't immediately relevant to the case.

Your ex seemed very similar to mine, so I can imagine how high-functioning and charming he could be. My ex, I don't think he really wanted time with our son. He does want to engage and create conflict, but he doesn't want to be a dad. Just appear like one.

It's a terrible disorder. I'm so sorry the CE was a bust.

Thank you everyone for chiming in.  I feel like an innocent person in prison. 

Matt, I am considering your mentioned strategies... . my L is mainly for stalling and then trying to shoot holes through the evaluation in court (showing that she did not talk to other professionals, etc)

lnl, yes i know he charmed her.  There is no other way.  My ex doesn't really want 50/50 custody either.  It's always been about the money attached to that for him.  I can't believe she saw through that and bought that it is me trying to not have to pay... . and everything else.  She did not consider his relationship with his other children and actually stated that his difficulties with them are "different"  (I think they would be excellent indicators).  Unfortunately, his D21 and his ex wife both wrote supporting letters stating that he has no history of anger problems... . I have personally witnessed him screaming at and abusing both of them, and his daughter going through long periods of NC with him because of it.

The whole thing is so sickening to me, and just so unreal. 

In the meantime, he continues his money quest and claimed D3 on taxes before I could file this year... . I had primary physical custody all of 2013.  L said to claim her anyway, attaching a copy of the temporary custody order, so I guess I will and see what happens.

Reaching out for your continued support... . I feel depressed tonight and haven't felt this way in a while

A couple more comments - hope they are helpful.

"I feel like an innocent person in prison."  That's very understandable, and it might even be healthy to let yourself feel how you feel, for awhile - just let it roll over you, like grief.

But... . don't get too used to feeling like a victim.  It may be justified, but it's not effective, especially when there are kids involved.  As soon as you are able, you need to pick yourself up, dust yourself off, and get to work, doing the best you can, as a parent as with your legal stuff.  Not easy but it's got to be done, and you probably can't do your best if you're feeling like a victim instead of a warrior.

Also... . about claiming D3... .

In our divorce settlement, which became a court order, we agreed that my wife would claim both minor kids (then 10 and 11) on her taxes, that year only, and I would claim them both every year after that.  I'm not saying that's what you should aim for, only that it made sense in our case, because I made more money, so I needed the exemptions, and also - what I couldn't say out loud - because they actually spent more time with me, although we agreed on 50/50 custody legally.

A few years later, I was applying for a home loan, and they needed my tax return in its official form, from the IRS.  But what they got indicated that the IRS had denied my tax return, because I had claimed my kids as dependents.  It turned out that my wife had claimed them too, and she filed her return before I did.  The IRS didn't ask for the court order, they just assumed she was right, and it created a ton of problems for me - cost me a lot of money to sort it out.

Not sure how this applies to you, but you might want to check into it, so the same thing won't happen to you at some point.

Good to see you again nwtg and sorry to hear the CE was a total farce.   

A lot of good ideas being suggested. 

My ex did this too. And yes, you just write a note to the IRS and attach the order that shows you are the primary physical parent or custodial parent. It will get sorted out, they see it all the time. It means you can't file electronically, unfortunately. My ex has done this every year, so now I just consider it a part of the way I file. 

How long has it been since he was awarded 50/50? In the time before that, was he failing to take the full amount of time with D3? Documentation, and lots of it, is probably going to help you over the long haul. 

lnl, glad to hear you have had this experience.  Should I also include divorce decree since that was in the spring of 2013?  And just explain in letter that we all lived together until then?

He wasn't awarded 50/50 yet, it has just been suggested by the eval, so there is a strong chance that he will wind up with it now as the courts usually go for what the evaluation says... . we are still going on the temporary schedule that was ordered in May or June... . I have primary physical custody and she spends 5 out of every 14 nights there.  He has not slacked, and would never do so until he has that 50/50 custody order, because then he has everything he needs ($$).  I have slacked on daily documentation over the past month or two, but nothing major has really gone on, anyway.  I am going to start again, now that I am pulling myself back together.

I'm strongly considering the forensic psychologist to help me show the holes and faults of the eval... . and also maybe switching attorneys.  I just still have this gut feeling that my attorney is not really fully in the game with me.  I need someone who will truly hear everything that I have to say, believe who I am, and try to do what is right just as I have always done!

catnap, you are right... . a TOTAL farce!  And Matt,  yes, I can't roll over and die here, have to keep going for D3 and S8!  I will do whatever I can!  Of course that's what I thought I was doing with the evaluation

Thank you again for all of your support and please let me know of other thoughts or suggestions... .

A forensic psychiatrist who administers the MMPI2 -- if you haven't done that yet, now is the time. Also, depositions. The strategy your L is proposing for shooting holes in the CE sounds lame. You need something else with teeth to show that your ex habitually lies, has a substance abuse issue.

It sounds like your lawyer is coasting. If you can get a better one, do that. Your daughter is young enough that it could save you a ton of money over the long term, even if it costs a pile right now. Not to mention her safety, especially while she's so young. My ex ended up having a psychotic episode one night while drinking, mixing booze with ambien, adderall, and god knows what else. I can't even imagine how traumatic that night was for S12. He won't open up about it at all.

You hired the lawyer you have now when you were at a much weaker place, and now you're stronger and out of the worst of the FOG. Find a lawyer who will advocate for you, and who understands what you're up against. It makes a huge difference!



LnL

LnL mentions a couple of super-important tactics - both of them I used and both of them helped me.

MMPI-2 or some other objective psych evals for both parents... .

Some professionals - psychologists, counselors, custody evaluators, etc. - use objective tests, and others don't.  Some of them seem to believe they can figure things out by talking to the parties and others, and maybe they can, but it's not science, because it's not objective.  There is no way to know if someone who has a severe psychological disorder can fool them or not - it's a crap-shoot.

The MMPI-2 was requested by our CE.  I knew nothing about it at that point but I agreed - no problem - I figured I should just go along with the process and trust that more information would be a good thing, which turned out to be right.  Cost $500 for each of us.  Mine went OK - about 500 items - each one is like, "I'm more of a morning person or more of an evening person" and then you pick 1 for "morning" or 5 for "evening" or someplace in between.  (I just made up that example, to show that it's not "right" and "wrong", it's a choice between two extremes, or you can pick in the middle.)

The MMPI-2 has been in development for decades and has been given to many thousands of people.  Studies have been done to establish what patterns of responses mean.  There are "truth scales" - combinations of responses that suggest the person is telling the truth or not.  There are scales (combinations of responses) that indicate many different psych disorders including BPD.

My results were fine - no disorders.  But it showed I was at high risk for addiction.  The CE asked me how much I drank and if I used any controlled substances - at the time my answers were "I haven't had any alcohol for the past year and I don't use any drugs." which was true.  He said that because of my age (over 40 at the time) it wasn't likely I would develop any addictions, but to stay on my current path to make sure.  It didn't hurt my case at all;  in fact I think it may have helped.

My wife's results showed "multiple psychological disorders" including BPD, and also that she "presented falsely" (lied) on the test.

This did not immediately result in a change to custody, but it figured into the process.  One result was that it added to the pattern my lawyer, my wife's lawyer and the court had seen - my wife's tendency to blatantly lie about important issues (though in our daily life she was very honest).  She lost a lot of credibility.  Also, it explained some of her behavior - violence, threats, false accusations - put it all in context so everyone involved.

I would strongly recommend finding out about the process to have both parents objectively tested, with the results to be known to both sides and the court.

Depositions... .

Suggested to me by others here, and very helpful.  Kind of expensive - five or ten hours of my lawyer's time.

We filed a motion to have my wife deposed for four hours.  Her lawyer responded in kind.  The depositions were scheduled - me in the morning, my wife in the afternoon - at my wife's lawyer's fancy office.

We were both told to bring a number of documents, and I did, but my wife didn't.  She got no consequences, so I wished I hadn't brought them either.

My lawyer had prepped me - "Just answer what is asked and say nothing more.  Yes or no is fine if that answers the question.  If you don't understand say that, or if you don't know say that."  It went very well and only took a couple of hours.  The hardest part was stopping after a short answer;  normally we add more information to be helpful and friendly, but that's not what you should do when deposed.

My wife did very badly.  We had prepared a number of questions on various topics, so she would have to either tell the truth or lie under oath.  She lied more than 40 times, about half of them things we could prove, all under oath and recorded.  The next day, we listed the lies, and my lawyer talked with her lawyer and told her, "If we go to trial your client will be sworn in and will either admit she lied under oath, or we will prove it with evidence."  Lawyers are ethically obligated to protect their clients from criminal liability, so her lawyer was powerfully motivated to settle before trial, which we did - the day before trial.

When someone is lying, depositions give you the chance to get those lies into the court record, under oath.  You then have time to find evidence, to prove they are lying, before the trial.  Someone who is lying can be backed into a very bad corner this way - not just made to look bad, but at risk of criminal prosecution.  The key is the questions your lawyer asks - they must be very carefully prepared so there is no way the other party can tell the truth without admitting they have lied in the past.  You win either way.

Ditto to what Matt said. My case turned out a bit different. For example, we never used the depositions, but if we needed to, there was a ton there, all very concerning, including N/BPDx's very distorted answers about his drinking problem. N/BPDx ended up having a psychotic episode and documented the entire thing. He basically packaged himself up and tied a bow on his head, then handed it over to the court. 

In the deposition, he admitted he had a problem, but then said he wasn't an alcoholic. He said he quit "all the time." He said it had never caused him any trouble and he didn't think he had a problem, but then admitted that it was the number one problem in our marriage, that there were times he forgot what he did the night before because he had too much to drink. N/BPDx thought all those things were a sign of normal drinking, but they seem very troubling in the context of the full deposition, particularly because we were discussing care of S12. All of that testimonial is then used by the opposing attorney to shoot holes in it, making it clear how many inconsistencies and lies, troubling perceptions, etc. are in play.

How long until the hearing to determine the custody schedule?

Ask around to see who has a good reputation as a forensic psychiatrist. You'll start to hear the same names again and again. You might even want to talk to the clerk in your court to find out if there is a list. Then start looking for a better lawyer. Ask the lawyer how he or she would help you turn around a bogus CE, which forensic psychiatrist they would recommend.

No one will fight for you as hard and smart as you will. You have to do your homework, which is hard when you have two young kids and a full-time job, and you're stressed from a crappy CE. But you can do it! I remember when you tried to change your name to icandoanything  :)

That's you!

Ex will be filing for a hearing soon, so it will probably be about two months or so from now.

When I asked my L about depositions before, he basically laughed at me and said no one does that for divorce cases.  But I can ask some other attorneys.

Going to call some other Ls today.  What should be my strategy for switching?  And how do I break it to my attorney?

Going to call some forensic psychologists and/or psychiatrists today too.  I took the day off from work.

Ex told his L "we had an agreement" to alternate years with claiming D3 on taxes... funny, he also said we had an agreement on 50/50 custody at some point.  I never agreed to anything!  He also says that I claimed her last year and got to keep the entire refund.  I filed a joint married return last year, and I had to pay him all of that money with the divorce settlement.  In addition, when he found out about the sizable refund, he increased the amount he was asking for by $5000, and I gave him that, too.  Aaargh!

He is also asking for the full name of the gentleman I am dating so that he can do a background check. 

Yes, he will always keep asking for more.  Clearly, any settlement in his mind is open to reinterpretation and continued entitlement and rewritten history.

No, he does not do a background check on others in your life, or at least you don't enable it.  He will push the boundaries of good behavior until and unless stopped - and probably still will try it anyway.

He used to work in a security position, right?  Then lost it?  Has he ever tried to work since then?  Is there any indication he will work again?

Sadly, you do need to have this evaluator's report and its flaws assessed by a real expert, someone known to have a good reputation, not just someone picked from a list like this first one likely was.

"No one does that for divorce cases."  That guy is a loser.  He doesn't know how to handle a case like yours.

I'm not telling you that you should file to depose the other party;  I'm not an attorney, and my experience is limited to my own case, plus what I've learned from others here, and read about in "Splitting" and elsewhere.

But I know that what he's telling you is wrong, because of my own experience, and plenty of others here.  :)epositions can be a powerful tool, especially when the other side is lying, covering up information, or making false accusations.

Tell that guy, in writing, not to work any more hours on your case or incur further costs.  Ask for a final bill and accounting, and check it carefully.  It's likely he will overcharge you so he doesn't have to give back any of your retainer.

The way I found my second attorney - I went through this too - my first attorney was a phony like yours - was that I went online and found a lot of attorneys in my area, and I called them, and asked each one what experience they had with an opposing party who had BPD.  Most of them admitted they didn't have any;  quite a few asked me what "BPD" was.  I asked each of them to recommend someone with the right experience.

Finally I found one who - when I asked about her experience with BPD - said, "You mean Borderline Personality Disorder?".  She had handled a number of similar cases, and told me "war stories" about how they played out and what she had learned.  I still only considered her about a 7 - not a perfect fit - but my first attorney was about a 2 (though he was probably very good for most cases that don't involve someone with an extreme personality problem).

One thing you might consider is, when talking with each attorney, ask for a recommendation to psychologists who can help with a case like this.  And when you talk with each psychologist, ask for the names of attorneys who they have worked with successfully.  What you want is a team that will work well together and be effective;  you might find two people who have worked well together in the past and can hit the ground running.

Also... . about "forensic psychologists or psychiatrists" - I'm not sure but I think what you're looking for is a psychologist (not psychiatrist) who does custody evaluations.

How to break it to your attorney?  "I am not happy with how you have handled this case so I am making a change.  Please send me a final bill, accounting for all charges, and a refund of the remaining retainer by the end of this week."  In writing, simple, no-nonsense.  You don't owe him anything more than that - he works for you and you have the right to make a change any time you think that is the right thing to do.

Act fast since the new attorney will need to prepare for the hearing.  But when the new attorney is in place, she may want to file a motion to delay the hearing a few weeks, so she can be thoroughly prepared for it.

One more thought... . I think it's important to establish the new relationship, that you tell the new attorney what your objectives are in the case.  For example, you might say, "Primary custody, with no overnights til Ex has shown consistent stability, and he should pay alimony and child support according to this state's guidelines."  Or whatever you decide would be the best realistic outcome.  Your new attorney might tell you that your objectives aren't realistic, and you can decide what to do about that - change your objectives or look for an attorney who will take them on.  Ask the attorney to give you a solid plan to achieve your objectives - not a guarantee, no attorney will give you that - but a step-by-step road map so you will know what you can expect.

I think where many of us go wrong - certainly what I wish I had done with my first attorney - is to set very clear expectations of the attorney, so she can either step up and commit to those objectives, or tell you that she doesn't think they are realistic, so you can deal with that.  My first attorney - when I finally did that - told me point-blank he didn't think my objectives were realistic.  When I realized that was more about him than about the case - he had no experience handling cases like mine - I made a change, and the new attorney was much better, and we got good results (though not quite what I hoped for).

My attorney said, "Why waste $1K-2K on a deposition when we can do it on the stand?"  Eights years and many $Ks later I look back and wonder about that.


When seeking a new lawyer, after describing your issues and hearing ideas from the lawyers then ask up front, "If you had my problem and you needed a good lawyer, who would YOU choose?" Likely you'll hear a few select names multiple times.  Focus on those.  (Same idea for expert evaluators, psychologists or mental health experts.)

Our custody evaluator was someone the lawyer knew and trusted - and according to my lawyer, so did the court.  The initial CE report was excellent, too bad ex decided to settle at literally the last minute on Trial Morning and everyone including the CE expected me to settle so therefore the updated report was sealed and never saw the light of day in court.

Don't feel bad about changing lawyers.  This is a business relationship, not friends or buddies where you worry their feelings might get hurt.  I don't know if you have to tell your current lawyer to stop right now or whether you hold off until you have found another.  A lot depends on whether there are any response dates where you need to appeal, object or otherwise make timely decisions.

This is an excellent example of how many attorneys look at things.  FD's lawyer appears to have understood how the system works, but he had no concept of strategy - how you can make the system work to your benefit.

Here's what I mean:

The reason depositions are so helpful in cases where the other party is lying, or making false accusations, is that depositions mean you have two chances to put the other party under oath.

First you depose him, and ask him very carefully-worded questions about stuff he isn't telling the truth about.

Then you look over his answers, identify where he hasn't told the truth, and gather evidence, to prove that what he said was false, and if possible to also prove that he knew it was false - he was deliberately lying.

Then you show that information to the other party's attorney, so she will see that her client made false statements under oath, which is a crime.  You tell her, "If we go to trial, we'll put your client on the stand, and prove he lied under oath.  He will be at criminal risk."  Since an attorney is ethically obligated to protect her client from criminal jeopardy, she will be forced to advise him, "You better settle!".  You'll be in a very strong position to get a good settlement.

But if that doesn't work, you go to trial, where you put the other party under oath again, and prove that he lied under oath (when he was deposed).  You ruin his credibility and raise the question, "Why is he acting like this?".

This is an example of a strategy that can be used when the other party has BPD or another psychological problem that causes him to act strangely and make false statements and accusations.  FD's attorney may have done a great job for most of his clients, and may have known the law very well.  But he clearly wasn't a strategic thinker - one of the keys to success in high-conflict cases.

I understand the usefulness of the depositions, as well explained by Matt and ForeverDad now, thank you.

It would be useful for me to hear a couple of real-life examples of the lies and how you proved them to be so.

Also, exH was almost deposed by a detective when he was trying to get a PI job, and THAT is when he gave up his quest for that, refusing the deposition.

Can he refuse to be deposed if I file a motion?

That a legal question for a lawyer.  However, legally I doubt he can refuse.  (Nor could you refuse if his lawyer decides to depose you.  However, you wouldn't want to comply with a deposition while he skipped his.)  Practically, too many rules are ignored in family court and end up seldom getting consequences.  Possibly he can just not show up, same as some of our ex-spouses have done by ignoring written interrogatories, but if so then that could put him at a disadvantage in court.  Lawyer question.  But if you do them, give priority to questions that reveal parenting behavior or behavior that can affect parenting.  Adult behaviors often end up becoming mere footnotes.

Examples:

My wife had accused me of assault - called 911 and told them, "My husband threw me down the stairs."  Two officers arrived - one talked to me and the other to her, then they switched and talked to us again.  Their report was very detailed about what we both said.

My wife had told Officer 1, "I didn't hit him or try to hit him."  I told Officer 2, "She swung my guitar at me a number of times."

Officer 2 then asked her, ":)id you swing his guitar at him?" and she said, "Yes - I was really mad - but I didn't hit him with it."

When she was deposed, my lawyer asked her, ":)id you hit Matt or try to hit him?" and she said no.  ":)id you swing his guitar at him?"  "No."  ":)id you tell Officer 1 that you didn't hit him or try to hit him?"  "Yes."  ":)id you tell Officer 2 that you swung his guitar at him?"  "No."  "Here is a copy of the police report - see right here, what Officer 2 wrote.  Now tell me again please - did you swing a guitar at Matt?"  "Yes."  "So a few minutes ago when I asked you that, why did you say no?"  "I don't know."  Etc.

Find an issue he is lying about - ask him that question under oath so his lie is now on the record.  Ask several questions about it - more details - get him to lie repeatedly and in detail.  Then confront him with evidence, in depositions if possible, or later at trial.

Focus on the issues where you can find evidence or someone else to testify to the truth.

"Can he refuse to be deposed?" - I don't think he can refuse.  I think that is a court order - you file a motion and the court approves it, and then if he refuses he is violating a court order and can be held in contempt of court.  It might take a number of motions - maybe a "motion to compel" - but sooner or later he'll have to give in, and he will look bad for fighting it.  The court will see that he is trying to hide from the truth.

That should be one of the first questions you ask your new attorney.

I agree with Matt. Your current attorney is a loser. No one should be laughing at a client who has a BPD spouse. No lawyer should be laughing after his client just got a bad CE. There is nothing to laugh about. Depositions are used all the time in high-conflict cases. He just told you he has no experience with high conflict. Fire him.

In my deposition, N/BPDx did more than lie. He made it clear that he didn't understand the severity of his behavior. My lawyer asked him if he was someone who got angry. He said no. She asked him if he ever called me names. He said no. She asked him if he ever drank too much. He said no. She asked him if he had an anger issue. He said no.

On and on like that. And then she started showing him emails in which he either does those things or admits to them. He still denied that he had a problem with anger, and he justified each and every email. It made him look like worse.

Depositions are used for two things. One is to get your ex's testimony on record so that your lawyer can cross-examine him on the stand. Two is for your attorney to see what kind of witness your ex will be. And vice versa. It's a test.

According to my lawyer, the opposing lawyer saw that I was a credible, reliable, and convincing witness. It made him realize his own client was snowing him. We came in with three binders of raging emails, not something the opposing attorney was aware of. He apparently told my lawyer that he saw those binders and knew he was finished.

The opposing lawyer stayed on a for a while and eventually withdrew when he realized he could not contain or counsel N/BPDx.

BPD sufferers use the courts to delay things for a long long time. Use those same strategies to slow your case down. Make that something you talk to a new lawyer about -- that the status quo is better for your daughter right now. How can you stabilize that schedule for as long as possible?

It's possible that you don't need a deposition AND an MMPI-2, but you need to ask a lawyer who has experience with high-conflict cases to understand. You are a physician, right? People come to you because you have expertise and training in your specialty. They can probably go to someone with less training and experience, but if it's serious, they should go to an expert.

There is sort of an equivalent with law. Pick someone who only does family law. Pick someone who has experience with high-conflict.

LnL mentions a key point here:  Both attorneys will see, through depositions and other ways, what you are made of, and what the other party is made of.  They will both see who is telling the truth;  who makes sensible decisions;  who is composed and poised under stress;  etc.

Over time, your attorney (if you pick a good one) will have more and more confidence in you and in your case, and will get stronger.  The other party's attorney will feel worse about her client and will look for ways to settle the case or dump it - she won't want to go to trial and lose.

Depositions can accelerate this process.  So can four-way meetings (both parties and both attorneys) and court appearances.

LnL also mentions a key strategy in your case - not in every case, but in yours, because you have majority time now but the CE's report says 50/50:  moving things slowly.  Your attorney should know a lot of ways to delay things - normal things that happen in these cases.  Most of us want the case to be over in six months and it takes two years;  in your case maybe if it takes two years that will work in your favor - the kids will be doing fine and your argument can be, "Why make a change when they are doing fine?  Especially since the other party has shown through his behavior that he is a risky parent?"

Also? The fact that your ex does NOT want to be deposed is important here. He has something to hide, so use any tool you can to bring to light what he doesn't want to share.

And one other thing -- to underscore why you need an attorney to be on your team -- the attorneys negotiate when you aren't there. They back room deal. You need a lawyer who will say to the opposing attorney, "Wow, your client was sweating bullets in that deposition. You know what's going to happen on the stand. I propose xyz or else it's going to be abc and you know it."

What you want is for the opposing lawyer to counsel his client and say, "Pal, you are in a bad position here. Accept what she is offering because it's the best you're going to get."

Right now, the opposite is happening. Your attorney just rolled over, saw the CE, and figured it's over and your ex has a good hand. You need to swing that back in your favor with something that tells more of the story. Either a deposition or an MMPI-2 or both.

Another key point:  people with BPD - people who lie - people with something to hide - they all will look bad under pressure.  Every chance to put the other party under pressure, with his attorney watching, and even better yet with the judge watching, is a good thing.

We sometimes say here, "We don't win our cases.  The people with BPD lose them."

My attorney did say about delaying and about shooting holes in the report/cross-examining the evaluator... . but I now know that he has a close relationship with the evaluator and she with the courts... . so feel like I could be just screwed as they will all just back each other up.  I do think that my L would be very good at shooting down exH in cross-examination, but... . I am concerned about the report.  In my county, the eval. reports are relied upon heavily by the judges.

I have called some other attorneys today, haven't found another good one yet.  And I forgot to ask them about depositions.  Still waiting for a couple to get back to me, so will ask them their thoughts on that, too.

Spoke with a couple of forensic psychologists, and they think that an option is having them review the report for problems with construction, methodology, ethics, etc... .

I agree with the need to maintain the current schedule for as long as possible, even though it is way more time than is healthy for her to be spending there, it's better than 50/50.  Hearing will likely be scheduled for 2-3 months from now... . by then it will have been for about a year already... . could bring that up at trial, too, and say, it ain't broke so why fix it? Switching attorneys closer to the hearing date as another strategy for delay?  But I wouldn't want to screw myself by not giving said attorney enough time to know the case and be fully prepared... .

You can't fight something with nothing.  If you criticize the report, but don't offer a better one, the judge might say, "Well it's the best information I have so I have to go with it."

So... . what would be a "better" report?

* Done by a psychologist experienced in Custody Evaluations and acceptable to both parties

* Based on objective psychological testing of both parents

* Talk with both parents, the kids, and others who know you

* The CE should have access to all relevant information, including both parties' medical records

* But she should not have access to the initial report so she can reach an independent conclusion

You have to set up a big contrast between how a CE should be done and how that one was done - make it super-clear why you think that one was not valid, and then propose one which will meet all the standards.  There should be no question as to which one is more valid.

Sorry, I've been stale on this a little while.  D3 has had the flu, and now I have it too.

I still haven't made the jump to a new attorney.

Am strongly considering when I do switch attorneys to file a motion for another custody evaluation, along the lines of Matt's last post, and also including the email from the evaluator where she discusses the tragic death of her stepson causing the lengthy delay and her focusing on her family rather than her job.  Although I have been counseled that my chances of the court granting another eval. prior to a hearing are on the order of 1%.  Can't grant new custody evals to everyone who complains... .

I paid a forensic psychologist for a preliminary consultation, without consulting my attorney; I know that is frowned upon, but am switching attorneys, and just wanted to gather some info.  He is very concerned about several things including the evaluators credentials, training, etc; the way she improperly named one of the administered psych tests or is using an archaic one; the way she minimizes ex H's issues and defends him... . ie, I raised concerns about alcohol abuse, stating that he drank a 30-can case of beer and a 1.5 L bottle of rum per week while we were together.  She minimizes this stating that he admitted to a DUI, states he doesn't drink while D3 is at his house, and does drink but not as much as I said (although she doesn't say how much he did say he drinks).  And then he said that I "drank with him all the time" (when we were first together I used to have a beer after work with him for the first few months... . I have probably had two or 3 drinks in the past 12 months, and he even complained about it) and that I bought him a kegaerator.  I did because it was easier for me to buy him crap then to have him scream at me about not buying it.  I did not, however, purchase any alcohol for it.  He said that I got him 3 bottles of wine for Christmas and told a friend to get him a case of beer for his birthday, and so these things were twisted to make it seem as though I didn't really have a problem with his drinking.  Although I was never asked to give my side of the story on these things. 

I did speak with an attorney who said she does know some big gun forensic psychologists that she has worked with.  She was very gruff, and really played the devil's advocate with me.  I didn't get the feeling that she would be my advocate, but maybe after I talk with her again.  She is very expensive, so I want to make sure if I go with her I am making the right decision.  On the plus side, she does not like the evaluator that I had; won't let her clients use her.

At this point, we are still trying to delay exH's attorney's filing the motion for the hearing, but I'll be surprised if that doesn't happen by the end of this week.

All that stuff about buying him a keg, drinking with him, etc., is all baloney.  It's rationalization - completely irrelevant.

Your attorney should be able to say, "We are not accusing the other party of drinking - lots of people drink - and we are not denying that my client drinks.  There's nothing wrong with either party drinking.  We are telling you that he drinks a lot, that he has a problem with it, that it's not realistic to assume he doesn't drink when the child is around, and that his drinking and other psychological issues need to be evaluated - and my client will take the same evaluations - using objective methods.  Until that is done, and the results are taken into account, the child is at risk.  We must all take the right actions to protect the child, and part of that is to carefully, objectively evaluate both parents."

Or something like that... .

Yes, I agree.  I don't know why, maybe it's just this state/court system, but my biggest obstacle so far is just that... . finding an attorney who will stand up and say those things... .

Ditto to what Matt said. It's just white noise.

The bigger deal is that he got a DUI. Your L should be saying, "Mr. Nowhere has a history of drinking to excess, enough to endanger the minor child. He has a DUI and my client can testify that he can not moderate his drinking."

This is also where a deposition could help, to get on record how your ex characterizes his problem. Most alcoholics don't know what's normal, and have been in denial for a long time, so they talk about normal drinking when what they're really describing is an obvious problem.

More important, though, is to get a new lawyer and psych evals to counter the crappy CE. The alcohol stuff is not a smoking gun, unfortunately. And even if the courts believe there is a problem, they deal with it in watered down ways, like putting in the order that neither party will drink before or during visitation with the minor child. Your ex will drink, of course, and there is nothing that law enforcement can do. But you want it in there in case he does do something that endangers your child, and there are witnesses who can testify that he was drinking.

I don't know that paying an evaluator without telling your attorney is frowned upon.  I did it.  It's only a consultation, not a full evaluation.  Sounds like you have lost confidence in your atty.  Keep Googling and keep meeting with others.  Google BPD, custody eval, and attorneys, those keywords together.  I interviewed ultimately about 10 attorneys, went with a pricy one, but even she made mistakes and was gruff with me.  She understood, though.  And she was a bit narcissistic herself, but was ballsy in court, where I needed her.  The pricy ones aren't always better.  You have to keep reminding them of stuff.  Some will be good, though.  See if you can find one who is as angry about your situation as you are, and who knows the courts.  The person who doesn't like your evaluator may be good. 

If getting a new eval is a 1 percent chance, then maybe getting a different psych to write a report is the way to go.  Someone your lawyer has worked with and who is taken seriously.

You are doing a great job.  It's important for us to not just rely on our attorneys, and to be advocates for ourselves, and judging from your tone and what you are doing, I think you will prevail.

The court system drags things out. With someone with BPD that can be an advantage. Document everything. Keep emotions out and focus on the child.

I used a forensic psych to debunk the court ordered eval.

Currently I am seeking more time. My petition states that I want more time during the school year because I do the majority of homework with our boys. It is a very simple petition. Ex received it last August. She is dragging it out as much as possible. However, I have copies of every homework from last year. He did over 92 % of his homework last year when he was with me. The 8% she did has 45% of it with gross errors. He was in third grade. She signed every one she was involved with. I signed all the ones he did with me. I thought that since she was given the petition in August (before school started this year) she would have changed. She has not and I am still doing the majority of his homework. And she still gets things wrong. Some even made my atty laugh because they were so wrong. My ex is a registered nurse and has a college degree.

This year our oldest stopped doing his homework at her place. It is all online from the school with dates due, etc.

If your ex is drinking a lot at his residence you may want a private investigator to get his trash and document the quantity of empties in his trash. Having months of evidence may be helpful in court. Having a friend or yourself doing it may not carry as much weight in court.

Was the attorney just trying to show you how court might shoot down some arguments?  I'm not saying she's a good lawyer, but being gruff doesn't mean she isn't.

Did you ask the lawyer(s) for those they would use if they themselves had high conflict divorce cases?  Don't feel bad about asking, the good ones are professionals and know they're not going to get every case that walks in the door.  A lawyer doesn't have to be a friend, though being someone who invites trust sure does help, they just need to get the job done right.

One thing I've noticed, it is hard for court to lump everything together for the big picture.  They take each issue one by one and seldom want to rule that ten fairly bad things that individually may not be actionable would mean overall bad.

This is one of the advantages to a custody evaluation which includes objective psych evals.

Without such an evaluation, you can point out that the other party did X, and Y, and Z, and ten other things, but if each of them individually doesn't immediately harm the child, they can be set aside one by one.

But the nature of a custody evaluation is to take all the relevant information, including objective psych evals of both parents, and look at it all together.  That's when the picture starts to get clear.

wow, ... i am tired of reading all three pages of this thread about custody.

I totally avoided all this custody garbage by doing just one thing before I physically left my wife.

I videotaped her temper rage episodes.  I even got my kids to tape her with their own cell phones.

It worked for me.  I have full custody of my two teens.

Judges don't like temper ridden persons in their court room (nor out of the court room).

Get CPS on your side. That is what I did. They did not like my ex. They tried interviewing her, ... found flaws in all of her testimony during their investigation, ... . and gave a very damaging report on her. It is a report that will never go away, ... . a black mark on her very soul.  No amount of money nor legal mumbo-jumbo will ever erase a CPS report. And the funny thing in my situation: The CPS agent didn't even have to look at one of my videos even though I offered for her to see one. She believed me from day one.

   All I played was an audio tape of my wife tormenting my children (while I wasn't even there, ... . my daughter taped her own mother when she was only 12 & 1/2 years old). CPS agents do not like a parent scaring the living crap out of a child. The home is supposed to be a sanctuary for any child ... . a heaven on earth, sort of speak.

Videotape people. Jeeeeeez ... . just video tape covertly. There is no excuse for raising voices, nor throwing things, nor swearing in front of kids, nor drinking and driving (with kids in the car), etc.

CPS always wants to see that safety of children is never ever compromised.  

Things work different in different courts. Not all courts will allow video recordings. Not all video recordings will count in courts that allow them.

Documenting is good, but you have to know how things work where you live. nowheretogo is in PA, and I believe there they do not permit video recordings in court, although I think david is in PA and records. But his argument is that he uses it to protect himself, not as an exhibit in custody battle.

You are absolutely right about certain courts not allowing such evidence.

BTW, ... after private messaging another forum member and getting his advice, ... . I realized that I was going way overboard on my advice-giving (re:video-taping, etc). In other words, ... . I'm gonna start to tone it down with my recommendations of what worked for me in my situation. It seemed like every other post i would babble about "catching the criminal-in-the-act" using cell phone, ipad mini, ipod, etc. 

I think maybe that even the very existence of having such documentation is actually good enough without ever using it (I actually haven't even used it yet).  My ex and her family hate the thought that I have the atom bomb. They have sticks and stones.

But one's best bet is to communicate very effectively with CPS. This has worked very well for me. This was my best weapon against BPD-tyranny thus far.

My lawyer told me that courts where I live frown upon both video and audio recordings of the other party;  if I brought recordings that showed she had some bad moments, that wouldn't hurt her much, but I would look bad for recording without her knowledge.

But... . she advised me to consider recording anyway, because if something very serious was captured, then the court would view it differently.  I might look a little bad for recording, but if it showed my wife hurting or threatening the kids, she would look much, much worse.

So she advised me to record, and see what I got, and then talk about it with her, to decide whether to submit anything.  (In the end I didn't even bother recording - I had plenty of evidence from other sources.)

Regarding CPS, I was told to be very, very careful - once they are involved things can spin out of control and you might regret getting them involved.  But if there is really danger to the kids, it might be the right thing to do - just make sure you think clearly and don't react in anger.

Courts often don't want to deal with recordings whether video or audio.  Their time is limited and they have to deal with the issue whether it was edited or faked.

I was in court last year and my lawyer played several audio files of our exchanges.  In 8 years, it was the first time we did that, but this time we had two full days.  About 8-10 conversations for total of about a half hour.  During the trial (1) the lawyers stepped away in a conference room since her lawyer claimed he never heard them, (2) played for ex where she denied memory of them but confirmed they were her voice and (3) played a third time so I verify each one.  What a stressful time it was to listen to them again, but they sure demonstrated to the court what obstruction and problems I was dealing with.

However, it's possible that evaluators may be wiling to listen or view some of them, using them to get a sense of the background, issues and incidents.

How I got around the courts frowning upon the audio and video content was to have CPS listen to them.

All CPS cares about are the children. That is all.

If you are the calm one and your spouse is running around like a nut,... cursing and scaring the living daylights out of everybody, ... . then they will write this in the report:... . that the parenting by "so-&-so" (your BPD spouse) is very questionable and it is there recommendation that all the parenting is done by "such-&-such" (you, the normal parent).

This soo worked for me.

But you have to specifically ask for a CPS agent that is well educated in the topic of BPD, etc.

"Can he refuse to be deposed if I file a motion?"

No. A deposition is an instrument of the court and is considered testimony,under oath,just as if he were in the courtroom.

He and is lawyer can reschedule,etc.,,but sooner or later,he has to be deposed.It's part of the discovery process.

That said,you're attorney is a moron. Deposition is widely used in divorce cases. We deposed my stbxw and it went great. She admitted things I didn't have proof of,and denied those that I do have proof of.

Also,you don't file a motion to depose. You're attorney sends his attorney a discovery form and check off will be ":)eposition" on such and such date. The attorneys will work out the details of where and when. You get to be in the room while he's deposed btw.

I agree. Didn't you say that your attorney laughed about depositions ever being used in family court? One thing I learned from my N trait father and N/BPDx is that they laughed at things that weren't funny when they wanted to manipulate me. My dad has this chuckle that I now realize he used as a way to make me doubt myself.

Also, this is from a lawyer website about discovery tools used in PA courts: www.jbmartinlaw.com/blogs/family-law/bid/54336/Discovery-Tools-Used-in-PA-Divorce

I think it's accurate -- that depositions are expensive, and are used as a last resort. I suspect they are also a tool used more in high-conflict divorces like ours.

I had an audio recording of ex raging and daughter being afraid of her mom coming to get her after school.  I offered it to CPS and they would not listen to it. 

What I did, … was I met with CPS. Informed them of what was going on (wife/mom scaring the sh!t out of not only me but the children) … then I asked for contact information of CPS (email addresses, etc)…. Then I emailed the agent (that was allocated to my case) one of many audio clips of  my ex's rage episodes.

Then they realizes that this was AWFUL to the children, who were whispering to each other, as well as trying to calm their own mom down (as they were hiding in the bathroom while their mom was kicking holes in the door). I wasn't even there… the kids were texting me that "mom was acting weird again" which is code phrase for temper rage episode…. Then I would drive like a bat out of hell to go pick them up.

CPS do not like temper rages (directed towards children) by a parent.

This is because it is called child abuse.  

I at first felt soo guilty about reporting my spouse but I got over that feeling very quickly. She is a criminal. It is that simple.

My ex belongs in either a psychiatric rubber room (in a straight jacket) or a jail cell. Either/or would be appropriate. Actually there is a third option: an exorcism (and I am being totally serious about all three choices).

I live in Pa and the state does not permit recording without a court order. I record for my protection. If ex accuses me of something I have a recording which I woukld let the police hear. This would probably prevent me from being arrested.

I also had CPS contact me several years ago when ex claimed I bruised our youngest son. They called me and I read them several emails from ex where she was in full rage mode. I offered to send them but they declined. They dropped further investigation of me because of that phone conversation.

Recording may be not allowed in a criminal hearing in Pa but it can be argued to be allowed in order to protect an innocent person.

Family court is another matter. It depends on the judge and your atty whether it can be used. Family courts main goal is what "is in the children's best interest" and that leaves the court wide discretion especially if you have a good atty and a judge willing to listen. My personal experience in family court disagrees with the "best interest" but it is supposed to be the overriding principal.