First Court Appearance for Custody~What to Expect

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

Hi everyone,

My son (19) has his court appearance with uBPDexgf for custody of his infant daughter this week.  I'm sure it varies, but just wondering what happens in the first meeting.  He'll be having a phone conference w/his L before they appear but I find I learn so much more from all of you.   

A few questions:

Does documentation come into play at this point or is that down the road?

Is there an opportunity to propose a parenting plan?

If mediation is offered, is it wise for him to give that a chance or should he waive it (if he can)?

If his ex still does not have a L, will the judge order a temporary custody situation?  I'm almost certain, judging by her behavior, that she has no legal counsel.

Any other advice you have for him is appreciated.  Thanks in advance for your input!

[Veronica2001]

Hi everyone,

My son (19) has his court appearance with uBPDexgf for custody of his infant daughter this week.  I'm sure it varies, but just wondering what happens in the first meeting.  He'll be having a phone conference w/his L before they appear but I find I learn so much more from all of you.   

A few questions:

Does documentation come into play at this point or is that down the road?

Is there an opportunity to propose a parenting plan?

If mediation is offered, is it wise for him to give that a chance or should he waive it (if he can)?

If his ex still does not have a L, will the judge order a temporary custody situation?  I'm almost certain, judging by her behavior, that she has no legal counsel.

Any other advice you have for him is appreciated.  Thanks in advance for your input!

[livednlearned]

Does documentation come into play at this point or is that down the road?

Is there an opportunity to propose a parenting plan?

If mediation is offered, is it wise for him to give that a chance or should he waive it (if he can)?

If his ex still does not have a L, will the judge order a temporary custody situation?  I'm almost certain, judging by her behavior, that she has no legal counsel.

It's probably a technical hearing where the lawyers present to the judge what the parties want, and then there might be some theater from the lawyers (if your son's ex has one too) to demonstrate that the Ls are advocating for their clients. Then the judge may ask if the parties can mediate, like you mentioned. In some states, it's mandatory. In my state, I think it's mandatory to consider it   but it can also be waived if one party is adamant that it won't work. In which case, it becomes just another document that costs money to file.

Having said that, judges have a lot of discretion to do things how they want. My L has been practicing law for 22 years, so she seems to know when it's best to err on the side of being prepared for a full hearing with documentation and testimony, and when it's just procedural or technical. A couple of times, N/BPDx (representing himself) was blindsided because he thought the hearing was going to be procedural, and then the judge moved ahead into a full hearing. In general, your first hearing isn't going to be too complicated. It felt to me like people were checking boxes. It was over time after I'd been in and out of court half a dozen times that things got really complicated -- there is this legal logic going on that makes sense to lawyers and judges and is fairly opaque to us. I'm starting to understand it now, but it's taken me 4 years.  

I read somewhere that pro se litigation is on the rise in family court, so if you're in a state where there is a high percentage of people representing themselves, your judge may be very lenient with your son's ex if she isn't prepared. In which case, he might just postpone things so she can get her stuff together.

It's also possible that the judge will hear a few things about the current custody situation and just order it so stay that way -- in which case that becomes the temporary order.

Are you going to be there? If so, write down everything you can. Keep a journal so you remember what the hearing was called, what the judge said, the date. Ask your L immediately after the hearing what happens next. Your L will probably write up what the judge ordered (this is good, you want your lawyer doing this), so ask when your son will see a copy. Usually, there will be a date set for whatever comes next -- find out what that date is for, who will be there, what happens if the ex does not show, etc.

Court can be really draining and it's hard to understand everything that happens, so if there is someone there like you keeping track of what happened, it will help your son debrief and prepare for what comes next. I wish I had someone there to do that -- it can be very overwhelming when your stress is sky high.

As for mediation, most of the people here don't have any luck with it. I think it's best to always prepare for court, and then be prepared for the other party to settle literally the day of the hearing. Always go into mediation asking for more than you expect to get so that you have something to negotiate with. The other side is going to ask for the moon, so you might as well too  

Also have a really clear idea what your bottom line is. Mediation is not the time or place to consider your options. It's better to do that before hand, and even write down what your bottom line is. Mediation can be an intense head game, so it really helps to look at someone you wrote ahead of time during calmer moments, and use that to stay anchored. Everyone in mediation has an agenda -- the mediator (who prides himself on settling, not on being fair, or giving you what you think is best), the lawyers (who also pride themselves on settling), the other party, and you. It's a shark tank.

If you know your bottom line and can't reach it within an hour, then call off mediation. You tried your best, couldn't resolve it, and it's time to move on to the next step. Otherwise you'll end up paying for 6 to 7 hours of theater where not much gets resolved.

One thing I learned though -- my mediation worked out different than most people here -- is that you can resolve some things in mediation, and not all of it. For example, you might come away agreeing to who has primary physical custody, but don't agree on joint legal. In which case, there will be a temporary order that says, "Parties agree that biomom has primary physical, but cannot agree to joint legal, therefore the issue of legal custody will be determined by the court." And then nothing will happen until you file to present before a court why joint legal can't work.

Also, tactical question for your L: If your son says no to mediation during this next custody hearing, does that mean the judge is more likely to wing it on the spot to determine a temporary order? If so, then say yes to mediation. You don't want the judge to make a hasty temporary order because they aren't temporary.

[catnap]

In my son's case his exgf did not have legal representation--as his L explained it is usual operating procedure for her L to have contacted her to prior to the hearing. 

His L was a trained mediator and asked his ex if she wanted mediation: She replied only if she started in the position of sole conservator--his L declined mediation on my son's behalf.  Next his L asked if she wanted to postpone the hearing until she could get legal representation--she again declined.  Please note that my son had a TRO for his daughter. 

I believe that she saw the offer of mediation as we had a weak case, because when our turn came she again declared to the Judge she did not want mediation or to be granted a continuance to obtained representation. 

His L had brought all documentation and had the witness (PI) on the slight chance the hearing would actually happen.

Son was advised to give the shortest answer possible, remain even in his tone of delivery, and stay calm. 

There is a possibility that she will spin a very convincing lie(s) on the stand, so your son needs a way to let his L know that: a pad and pen work, so she can be challenged by his L on the stand.  The other thing is for his L to hit a few "hot" button issues in hopes that she reveals her true self. 

A few questions we asked or were told:

How son was to dress, as well as myself: no suit for him, but nice slacks, shirt an tie, business pantsuit for Mom. 

I was to watch my behavior as well, no rolling eyes, etc. 

Make sure your cell phones are off. 

Remain calm, cool and collected at all times.

Please note things vary from jurisdiction to jurisdiction.

[ForeverDad]

Usually initial hearings are short, maybe just a half hour for the basics, parenting schedule, child support, etc.  (Likely the judge won't want to get into details.  And yes mothers' tears and claims are accepted as gospel truth.)  Try to condense your statements and submissions to fit within that time.  Focus more on the parenting behaviors, including her frequent bouts of not sharing their child or threatening to obstruct his parenting.  Court will care much less, if at all, about adult behaviors between them.  After all, this is about the child - custody and parenting.

The problem is that a temporary order is not really temporary, in divorces it usually lasts the entire length of the case.  And they have a tendency to morph into permanent orders because the judge will figure that (1) it is now the "history" that the child is accustomed to and (2) if it 'worked' that long then it must be 'okay'.

For example, my divorce case was nearly two years from start to finish.  Court decided my ex would get temporary custody and I would have alternate weekends because I said I had a normal 5 day work schedule and she said she worked from home (even though I had a protection order blocking her from the house).  That's right, the magistrate had documentation in the paperwork of a pending DV case against her in a nearby court and yet chose to use who was the majority time parent based on work schedules.

Then, about 11 months in, the parenting investigation report said I should increase to 50% and court just moved on to the next step.  Then, about 16 months in, the custody evaluation report said she should lose her temp custody immediately and court just moved on to the next step.

So do try to get the best "temp" order possible from the very start, you may have to live with it for longer than you expect.  While there is some truth to it when lawyer says ":)on't worry, we'll fix it later" be aware it may be much later.

Final thought, you and your son can live even with orders that aren't so great, the key is that there is a stable authority, the court, and your son isn't subject (as much) to the other parent's unilateral inconsistent moods, emotions and flareups.

[Veronica2001]

Thanks, everyone.  So very helpful.  Especially the reminder not to roll my eyes.  That will be a challenge for me! 

His L doesn't seem to think there will be a full hearing tomorrow but I suggested to my son that he have a visitation proposal prepared (great tip).  She did suggest if it looks like they're going to trial later on, that he take a parenting class even if he doesn't feel he needs it.  I think you mentioned that before LnL and I'm grateful his L suggested it to him too.  When it comes from Mom. . .well, you know.

His ex has been particularly difficult this week and I'm sure it's no coincidence.  She seems to be trying to push his most sensitive buttons (attacking him, his friends and causing turmoil).  I told him he just needs to keep his eye on the ball and deal with that kind of thing later.  She wants a reaction. 

My husband and I will both be at the hearing.  Will update tomorrow. 

[ForeverDad]

No, it won't be a full hearing, probably just a half hour or so, but very likely there will be a temporary order issued.  Don't sit back and let the judge issue a 'standard' default order (if you can avoid it) since defaults almost always favor the mother.  Especially with a very young child.

Still, be aware that lawyers will typically minimize the importance of it for the underdog parent.  Rather than getting a typical start, try to get the best start possible.  It may not be much different, but anything additional from the start is something good.

[Veronica2001]

No, it won't be a full hearing, probably just a half hour or so, but very likely there will be a temporary order issued.  Don't sit back and let the judge issue a 'standard' default order (if you can avoid it) since defaults almost always favor the mother.  Especially with a very young child.

Still, be aware that lawyers will typically minimize the importance of it for the underdog parent.  Rather than getting a typical start, try to get the best start possible.  It may not be much different, but anything additional from the start is something good.

I've read the importance of the temporary order many times on the boards, and this is what makes me most nervous about tomorrow.  But how exactly can we help determine the outcome during the hearing?  Will his L be doing all of the talking or will my S have a chance to respond when the initial order is given if it's not favorable to him?

[livednlearned]

His ex has been particularly difficult this week and I'm sure it's no coincidence.  She seems to be trying to push his most sensitive buttons (attacking him, his friends and causing turmoil).  I told him he just needs to keep his eye on the ball and deal with that kind of thing later.  She wants a reaction. 

It's extremely hard for her to regulate emotions, so she will have a hard time managing regular stress, much less this kind of stress. Some people say that BPD sufferers create outward turmoil to match their inner turmoil, that it calms them to see others feeling distress. That's another reason why a parenting class will be useful to your son (in addition to helping him look good in court). She is probably not going to handle the normal stresses of parenting very well, so the more he learns from others, the less likely he'll get whipped up by her reactions to things. He's probably not going to take a mindfulness class, but that's the best antidote to dealing with a BPD co-parent 

I hope you get a good outcome in court today. 

No, it won't be a full hearing, probably just a half hour or so, but very likely there will be a temporary order issued.  Don't sit back and let the judge issue a 'standard' default order (if you can avoid it) since defaults almost always favor the mother.  Especially with a very young child.

Doesn't it depend on the state? I thought there were states that defaulted to 50/50 by law, like Washington.

[ForeverDad]

His ex has been particularly difficult this week and I'm sure it's no coincidence.  She seems to be trying to push his most sensitive buttons (attacking him, his friends and causing turmoil).  I told him he just needs to keep his eye on the ball and deal with that kind of thing later.  She wants a reaction.

My ex usually made allegations when we had a big hearing coming up or after she had flubbed up and done something wrong such as raging to the professionals.  I saw it as her trying to make me look as bad as or worse than her.

In our final year together my ex did that same thing, she tried to get a reaction out of me.  I recall late one night (or wee hour of the morning she was again ranting and then claiming she couldn't hear me.  Well I raised my voice -but didn't yell - and she got a look in her eyes like "aha! I got him!"  But she just continued ranting, my reaction didn't improve things, so I resumed being a bump-on-a-log.

[AlonelyOne]

It's amazing how much energy they devote to provocation... .isn't it?

[Veronica2001]

ALO, it really is remarkable.

We went to court this morning and I am still processing it all.  I can hardly believe what happened.

Before their case was called, I walked past my S's exgf and I said hello.  She replied, ":)on't talk to me."  Okayyyy.

For those of you who might be reading this, and like me, have no idea what to expect in a physical sense, the judge was on a raised platform and there were two tables for the opposing parties.  Behind that, there were benches for family members to sit.  So, a typical courtroom setting, I suppose. 

uBPDexgf's father was present but she had no attorney.  Luckily, my husband offered to take care of the baby as exgf didn't bring anyone else to stay with her. 

The judge asked her if she'd like to get an attorney and she said yes, but couldn't afford one on her own.  She agreed to have a court appointed L but S's L thinks she may not qualify.

His L then presented S's case and reason for his petition and she was nothing less than amazing (well, from my experience, which is zero! ).  The judge seemed like very compassionate, kind man and spent a lot of time talking to exgf and even giving her some advice regarding issues she may want to discuss w/her L.  I thought, oh, this isn't going to go well.  He feels sorry for her.

Then he turned to my son, asked a few questions, addressed the grandparents and commended us for being involved, asked us a few questions since daycare and transportation were two of the issues brought up by S's L.  While S's L was figuring he would adjourn the case w/out giving a temp order so exgf could obtain counsel, she thought there MIGHT be a chance he'd order a 50/50 split b/c of her experience w/this particular judge.  His ruling was as follows:

50/50 physical custody

Joint legal custody (with a warning that if they couldn't cooperate, this would not be possible long term)

Daycare goes to GM (Me! )

Can you even believe it?

They return to court at the end of September.  His L is writing up the order and also requested an attorney for their D.  We are on CLOUD NINE!

exgf's father blew up at me while we were still in the courthouse.  I told him when he wasn't so upset we could talk.  He continued so I walked out of the room.  He texted me an hour later blowing up again.  exgf was very emotional after we left the courtroom too and verbally attacked my S.  Then she texted me a little while later asking me to help her figure out the visitation arrangement so she could have her days off w/the baby. 

To all of you who have taken the time to offer advice, guidance, support and prayer, I am beyond grateful!  Battle One has been a success and you all share in the victory.  Thank you, from the bottom of my heart.

[livednlearned]

50/50 physical custody

Joint legal custody (with a warning that if they couldn't cooperate, this would not be possible long term)

Daycare goes to GM (Me! )

Wow! That's wonderful. And you providing daycare 

How is your son doing? He must think family court is this great place where amazing things happen. (I don't even know what the emoticon would be for that  )

I have found it impossible to predict what the judge's demeanor means anymore. But my ex filed 4 appeals, and I learned that one of the reasons an appeal can be founded is based on whether there was evidence a judge was favoring one party over another.

Joint legal custody with a warning this won't continue if they can't cooperate --- you can count on cooperation being a problem. Usually the stuff court cares about is anything educational or medical. Since GD is so young, this might put a lot of emphasis on medical stuff.

[ForeverDad]

  I too think this is the best you could do at this point.  (It took me over two years to get equal time!)  Having 50/50 will take some wind out of the entitled sails.  The next two months will give them time to get used to equal time.  Hopefully they'll see it isn't as bad as they think it will be.  Look on the bright side, maybe there will be a few fences mended.  But it will still be a bumpy ride.

[david]

Save the texts, emails , etc. There are apps for the text messages so you can save and print them. They may be needed down the road. Stay focused on the child and her needs. Document everything. Over time you will figure out what needs to be documeneted and what you can relax on.

Let the other side attack and rage. Stay calm. This will help in court. Save all the messages.

I have a friend that shared custody with xhusband. She weighed the child every time ex got her for extended periods of time. The child lost weight every time. After the second time she took child to doc for a weigh in before and after. Went back to court and ex's time was restricted.

[catnap]

Happy Dance! 

Good outcome for temp orders.  Keep documenting. 

[Veronica2001]

Hi everyone,

Time for an update.

It's been almost 2 months with the temporary custody order and for the most part, it's gone smoothly.  His L told me recently there isn't a judge in the STATE that would have given the order this one gave them.  My son and his ex go back to court for a second appearance on Tuesday.  His uBPDex still does not have an attorney and I'm almost certain she never contacted the L appointed for their D.  Our meeting with him seemed to go smoothly.

I think his ex found a replacement so is not as consumed with my S's life.

But like clockwork, the closer we've gotten to the court date, the more dysregulated she has become.  This past Friday, she was supposed to pick the baby up at 4 P.M. after work.  She changed the time to 1 P.M.  S said okay.  Then she wanted to pick her up at 9:00 A.M. and he wouldn't agree to that.  She showed up at our house, refused to leave, and her father called the police.  They told my S that without any paperwork, they couldn't force him to give her the baby.  She had to come back at 1 P.M.

In retaliation, she later sent him a text telling him she slept with one of his best friends when they were dating.  Around the time she became pregnant.  His (so called) friend confirmed that it's true. He's devastated.  We're devastated. 

He will be calling his L first thing in the morning to figure out how to proceed.   This is just unbelievable.  We had NO reason to believe anything like this was even remotely possible. I should have known better.  Live. And. Learn. Indeed. 

Hope all of you are well~I've missed interacting on the boards.  Will keep you all posted.

[livednlearned]

In retaliation, she later sent him a text telling him she slept with one of his best friends when they were dating.  Around the time she became pregnant.  His (so called) friend confirmed that it's true. He's devastated.  We're devastated. 

How awful, in every way imaginable.

Paternity test?

The best friend... .not so much a best friend.

[Veronica2001]

Yes, there is no doubt he has to have a paternity test now.  I'm just not sure how that will affect their upcoming court appearance for custody. 

I wonder if they can get a postponement? 

We're all in shock about the fact that this was one of his closest friends who has witnessed everything he has gone through with this girl and never said a word.  It's unconscionable.  :'(

[maxen]

We're all in shock about the fact that this was one of his closest friends who has witnessed everything he has gone through with this girl and never said a word.  It's unconscionable.  :'(

yes, it is. my sympathy with all of you.

[livednlearned]

I wonder if they can get a postponement? 

I imagine there has to be a postponement. Or a special something given the circumstances. No court is going to want to issue an order to the guy who isn't the dad. 

This is a lot for a young guy to go through. I hope he's dealing with it ok, and that the paternity test won't take a long time so he can move forward knowing one way or another.

[catnap]

Veronica. . .oh no, this is horrible for your whole family. 

I am sure his attorney will know what to do--postpone until a paternity test is done. 

[JohnLove]

In retaliation, she later sent him a text telling him she slept with one of his best friends when they were dating.  Around the time she became pregnant.  His (so called) friend confirmed that it's true. He's devastated.  We're devastated.  

THIS!... .It's one thing for a BPD to punish but what the heck?... .shouldn't she be trying to sleep with his best friend now?... .what do you call this?... .a preemptive strike?.

Absolutely unbelievable, abhorrent, disgusting, putrid behaviour is what I would call it. I was devastated to read it.

She pulled this out of her bag of hate.

No one deserves this. I hope you son is coping OK.

I dont know how long this "relationship" lasted or how old this child is but I suspect your family has deep emotional bonds. if the paternity test reveals he is not the father he will be spared in having to deal with that particular pwBPD again. I realise that will also be devastating... .but if he is this is only the beginning. If he is the father he will need more than just the strength and wisdom required to raise a child.

A word of advice. Back up that text. Print it... .and any others. Show them to your L. They are admissible. Document everything... .for the judge.

My thoughts are with you.  

[ForeverDad]

Some states consider the father who raises the child as the parent of record.  And if that person learns that he's not the father he may have limited time to decide whether to step aside for the real father.

Lesson:  There is nothing too low for a pwBPD to stoop to.  I'm not talking about the infidelity itself, that's one category, I'm talking about her using her infidelity as a weapon to hurt him.

As for the friend, he may have kept quiet hoping it went away and would never be found out - compare the account of David & Bathsheba in 2 Samuel 11 & 12 - so I guess it's up to your son to determine how he wants to view this, who was the instigator and where the friendship goes from here.

[maxen]

Lesson:  There is nothing too low for a pwBPD to stoop to.  I'm not talking about the infidelity itself, that's one category, I'm talking about her using her infidelity as a weapon to hurt him.

this was my experience also.

[Veronica2001]

Thank you for the support, everyone.  We haven't told any of our family members or friends so all of your words are an extra appreciated comfort. 

My son's L explained to him that if he requested a paternity test and it was determined that he was not the father, he would immediately lose any rights to seeing the baby.  If he continued to claim paternity whether he was bio dad or not, by next year, he would be deemed the father and a paternity test would not be allowed.  Basically, he had very little time to decide if he wanted to risk terminating a relationship for the sake of knowing whether or not he was the father and having the results admissible in court.   Can you even imagine?   He's 19.   :'(

He decided he needed to know and wanted to go ahead with the request for a paternity test.  The judge said that since we may be "assizing a legitimate child" he is not certain there are grounds.  They go back to court at the end of October for the petition for a paternity test.

He also gave uBPDex MORE time to find a L.  She's done nothing, never met with their D's attorney, nothing.  At this point, it doesn't seem to matter.  Their D's L's testimony was along the lines of, "from what I can tell, they're young and they need to grow up and get along".  We submitted documentation to him upon his request and he didn't mention any of it.  He did say he agreed that since the baby was so young, a paternity test would be a valid request. 

His L is concerned that if she does finally get some legal counsel, they will try to dismiss the request for a paternity test based on the grounds that he has already consented to being her father.

If the request is granted, it will be another month or so after that before we know the results.  We can have the DNA test done privately~for $600 w/out the mother's sample. 

And uBPDex is talking about her new love interest (which has changed in the last week) on social media.  This just seems so psychopathic!  His L advised my son to try his best to communicate and get along or the judge will award sole custody to one of them.  Absolute nightmare. 

Other lesson:  ALWAYS, ALWAYS, ALWAYS establish paternity when it involves someone even mildly disordered. 

In my reading the other day, I came across the Bible verse that states, "For there is nothing hidden that will not be disclosed, and nothing concealed that will not be known or brought out into the open."  Luke 8:17

I can only trust that the timing was as it needed to be. 

[ForeverDad]

His L is concerned that if she does finally get some legal counsel, they will try to dismiss the request for a paternity test based on the grounds that he has already consented to being her father.

But wasn't that before he learned of her claim saying he wasn't the father?

But like clockwork, the closer we've gotten to the court date, the more dysregulated she has become.  This past Friday... .  In retaliation, she later sent him a text telling him she slept with one of his best friends when they were dating.  Around the time she became pregnant.  His (so called) friend confirmed that it's true.  He's devastated.  We're devastated. 

He will be calling his L first thing in the morning to figure out how to proceed.   This is just unbelievable.  We had NO reason to believe anything like this was even remotely possible.

He's only known of this possibility since last week!  Why would he be expected to ponder whether the baby might not be his except for this recent revelation?

That said, I know laws in the past didn't have the option to offer DNA testing and so it was assumed or presumed the child resulted from the relationship and not one night stands or hidden affairs.

We can have the DNA test done privately~for $600 w/out the mother's sample.

Yes, all that is required is father and child.  Can't it be done less expensively and with quicker results even if it isn't admissible in court so that he can sooner have an idea where his path and legal strategy is heading?

[catnap]

If the request is granted, it will be another month or so after that before we know the results.  We can have the DNA test done privately~for $600 w/out the mother's sample.

The DNA test we did was court admissible and cost $400.  Well worth the money and done secretly.  The results were mailed in less than a week.

IMO, to do one privately now is in the best interest of your son.  If the results are known before the next court date might be very helpful in planning strategy. 

www.dnacenter.com/  has offices all over the US and the cost is less than $500. 

www.testmedna.com/paternity-testing-cost/ 3000+ Testing Centers   Legal/Court Ordered Paternity Testing Cost

$375

You can also Google to find more labs in your area for pricing.

[catnap]

I would also ask your L if the court where you are ONLY uses certain labs that the results are admissible.