back with shocking custody evaluation results

[How to communicate after a contentious divorce...]

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?"

[Matt]

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?"

[livednlearned]

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.

[Matt]

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."

[nowheretogo]

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... .

[Matt]

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.

[nowheretogo]

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.

[Matt]

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... .

[nowheretogo]

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... .

[livednlearned]

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

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.

[momtara]

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.

[david]

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.

[ForeverDad]

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.

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.

[Matt]

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

[ogopogodude]

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.  

[livednlearned]

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.

[ogopogodude]

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.

[Matt]

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.

[ForeverDad]

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.

[ogopogodude]

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.

[marbleloser]

"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.

[livednlearned]

you're attorney is a moron. Deposition is widely used in divorce cases.

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.

Depositions

A deposition is sworn testimony taken under oath prior to trial.  The subject of a deposition is placed under oath to tell the truth, and the lawyers for each side may ask questions.  This usually takes place in a lawyer’s office and can take several hours to several days, depending on the circumstances.

Depositions are held in the presence of a court reporter who transcribes everything that is said to later produce a word-for-word written record of the testimony.  Testimony given during a deposition may be used as evidence at trial, either to establish facts or to challenge the credibility of a witness if his or her testimony conflicts with prior sworn statements.

Depositions can be extremely useful; however, they can also be very expensive, so divorce lawyers typically reserve this tool for use as a last resort.

[sfbayjed]

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. 

[ogopogodude]

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).

[david]

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.