Fighting the Custody Battle Against a Selfish Parent | Cordell & Cordell

okay good afternoon everyone I'll try to move this along as we come close to the end of the day and hit the ethics portion which I'm sure everyone's here to listen to you get over this hump though and talk about custody I chose this rather provocative title to hopefully pique people's interests and let people think that maybe I'm going to be talking about the selfish parent and oftentimes in our case the selfish mother who's trying to protect her custodial rights that better not to lean down now I know I was told I should have to lavaliere okay here we go but what I'd like to do is the topic is really going to be focusing on custody today and what the recent case law has shown in relation to joint legal custody so legal custody joint physical and sole physical custody and what the appellate court cases have done in the treatment of these particular custodial scenarios so I'm going to be going through a number of different areas in our case law addressing those topics as we move forward in the presentation and I think the first thing we want to take a look at is there we go the statute that addresses custody which is Missouri revised statute 450 to 375 that specific statute defines custody as joint legal joint physical sole legal and sole physical that is what custody is pursuant to Missouri statute that's the authority that we look to and the courts look to when evaluating a familial situation at trial and making determinations regarding both physical and legal custody now joint legal custody we'll see the definition here its joint decision-making authority regarding the health education and welfare of a child unless otherwise allocated apportioned or decreed parents confer with one another that's the structure the very basic foundation of joint legal custody typically practitioners and certainly clients get confused as to what joint legal custody or what legal custody really is legal custody doesn't dress address the day-to-day decisions of a child whether a child's bedtime should be nine o'clock or 9:30 or whether a child should have a certain food in the morning for breakfast or these minor day-to-day decisions are not what joint legal custody speaks to it's speaking to the larger decisions regarding health care where this child might go to school what medical treatment this child should be receiving and then the catch-all of the welfare of the child is a more subjective determination but they'll still speaks to the magnitude of larger decisions that impact a child's everyday well-being joint physical custody pursuant to the statute it doesn't mean equal time with to two parents what the statute defines as joint physical custody is that each parent have significant time but not necessarily equal time with the children shared in such a way as to ensure frequent and meaningful contact with both parents and further on in the presentation we're going to see more definition to what significant means when evaluating whether a custodial schedule meets the criteria of joint physical versus sole physical custody the statute actually gives it actually gives an order of priority that the court should consider before making a determination as to what custody should be ordered in a particular case and it goes in order as set forth and for fifty two three seventy five point five one the court first considers joint legal and joint physical custody then if that is not appropriate for the particular family the court should next consider joint physical and so legal with one parent the third order of consideration is joint legal with sole physical and the fourth being so legal and sole physical and in the fifth being third party custody and in this would be in circumstances where parents are unable or unfit to fulfill their role as a parent as it relates to legal custody we're going to talk about a number of cases that are dealing with interpretations of legal custody and how the appellate court is treated that upon review of the trial court's decisions regarding legal custody the thing to remember and it's very important to realize and understand and we as domestic practitioners I think are fairly aware of this that the burden at the appellate level in challenging a trial court's decision regarding legal custody is extremely high in order to be successful the appellate court level at the appellate court level we have to prove that the trial court's decision regarding legal custody was against the logic of the circumstances was arbitrary and unreasonable the trial court's determination of custody of a custody matter is given more deference at the appellate court level than any other matter that is appealed and the case of Hankins versus handguns it's a 1996 Western District case in this particular case father was appealing a sole legal custody award to mother and substantial evidence was presented and found by the appellate court that disagreements regarding naps diet medical treatment preschools support supported the trial court's opinion that the joint legal custody was not appropriate for this particular family father was appealed and the appellate court affirmed the lower court's order stating that there was stan shil evidence presented to support wise joint legal custody would not be appropriate for this particular family and then the court then affirmed the lower court's finding you're going to find a lot of cases on appeal that are appealing the issue of legal custody or often affirming the trial court's determination because of this extraordinarily high burden of proof at the appellate level in Rey the marriage of Barnes is a 1993 case that speaks to what the statute provides in the earlier slide that we saw which was section 452 375 point 1 the order of determination as to what custody considerations the court must take or must undertake in making decisions and again that order of preference starting with joint legal and joint physical custody if joint legal and joint physical custody is found to be appropriate for a particular family the inquiry really at that point ends if not it moves on then steps through the statute through the remaining custodial options in this case merely affirms what the statute requires 452 375 0.2 1 through 8 are the 8 factors the court must undertake the evaluation of in a determining or assessing custody in both legal and physical custody these are 8 factors that the court has to communicate through a narrative in its findings before making a decision and in this particular the particular elements include the court must consider the wishes of the parents as to what custodial arrangement is best for the children the need for the children to have frequent and meaningful contact with both parents the interaction interrelationship between the parents and the child as well as the child and siblings and other individuals that are within their daily life in one or the other household which parent is more likely to promote frequent and meaningful contact with the child with the other parent being the fourth consideration the 5th is the child's adjustment to their school community and home life the sixth being the mental and physical health of the individuals including a history of abuse the seventh being the intention of either party to relocate so whether one parent is going to be leaving the marital residence or leaving the metropolitan area this is a consideration the court must evaluate and then finally the wishes of the child this becomes a and we'll see that this becomes a little more of a variable that depends on the age of the child the maturity level as domestic practitioners we found that children tend to be tend to have to be around the age of 12 or 13 where there's more substance and Authority considered by by the court of the child when they reach that level to express a preference but the preference in and of itself is not determinative of custody Hall versus Hall is a 2011 Western District case which r.e.m ffice eyes the necessity of a trial court to to engage in a discussion of each and every one of those points within the statute when making a custody determination in this particular case the court merely listed the eight factors and then concluded summarily that based on the courts assessment and evaluation of the eight factors that the best interest of the child were that it were to be were given based on a certain legal or in physical custodial arrangement with no further explanation about the actual elements of the statute and the appellate court on appeal reversed and remanded the case because the the appellate court said the trial court should not be just listing the eight factors that are set forth within the statute there should be a discussion of each factor and how each factor applies to the particular family situation before a determination is made by the trial court of both legal and physical custody when evaluating legal custody the what the court does in assessing the appropriate legal custody for a family situation is they go through an analysis of determining one the cut whether or not there's a commonality of beliefs concerning parental decisions and number two the ability of the appearance to function as a parental unit these are the two factors that the courts examined to determine whether or not the first legal custody scenario dictated by the statute would be appropriate for this particular family in in the Dunkel case this Eastern District 2005 case it spelled out more specifically the fact that and confirming that the legislative intent in Missouri has expressed a public policy favoring frequent and meaningful contact of parents and in this particular case mother was appealing an award of sole legal custody to the father and in the facts of the case were such that mother suffered from a bipolar disorder on for which she was on certain medication mother lived in st. Louis and father had relocated to Columbia Missouri and the court was concerned although I called it a closed case was concerned about the distance between the parents residences and concluded that so joint legal custody would not work therefore father was granted sole legal custody this case was then appealed by mother and the appellate court reversed that decision because they felt that the joint legal custody could not hinge on merely a factor of distance between parents that a more of a factual factor analysis under 452 3 75.2 was required for the court to undertake before making that final decision now although legal custody joint legal custody is a preference it's very specifically stated not a presumption by the court and the Mallo a case specifically stated that particular point in this case mother was appealing an award of what was referred to as primary legal custody which we know statutorily it's actually sole legal custody and it was currently awarded to father evidence of physical and verbal altercations between the parents and cluding a custody exchanges and was presented find us here and the court found that in this particular case that the joint legal custody was not a presumption that we had the trial court had to look to it but they did not have to order it in a particular case now there are cases out there and I as a domestic practitioner I think we've dealt with them where we're negotiating a settlement and the opposing party and counsel are suggesting that we enter into a legal custodial arrangement that provides for joint legal custody but it provides that we essentially the final decision on a final decision regarding the child would ultimately be made by one parent after conferring and consulting with the other parent this is something that people have done by agreement but this case of the brown case it's a 2010 Eastern District case specifically states that the court does not have the ability on its own to enter such an agreement or enter such an order the order itself the language of the judgment and this is an appeal by father of this legal custody stated that mother shall confer with father before making final decisions on issues affecting the growth and development of the children however in the judgments its references a joint legal custody the appellate court found that the language was inconsistent with the label and therefore the appellate court was not sure what to conclude as it relates to the actual legal custody in this particular case so ultimately the court reversed the order remanded it back to the trial court for a specific determination as to the custody was actually ordered Aubuchon V Hale is a recent 2012 case again dealing with legal custody in this particular case mother was appealing the judgment denying a request to modify the decree to grant her sole legal and sole physical custody the what happened in this particular case was the court entered an order that stated that the parties were to continue with the therapeutic supervised visitation program until they were released by the counselor and then when a counselor believes the relationship has been normalized the prior parenting plan as contain in the prior judgment because this was a motion to modify that the judgment would be in full force and effect and that the determination of a normalization shall be memorialized by a letter from the counselor to each parent and then a copy to the court so in essence what the court has done it is abdicated its authority to the determination of an outside non judicial therapist the court this was appealed and the court concluded that this was an inappropriate abdication of that power that a therapist or third party other than the judge should not be making these decisions in the trial court cannot structure an order that that's that authority in someone other than the court or the judge itself so that was reversed and then remanded this particular case makes it very clear it's just like I said in the 2012 ruling typically when dealing with legal custody arguments are often raised that these parties can't get along they're not able to work together it's legal custody is not possible because the two can I work as a parental unit which those are the buzzwords of course the court has to listen to and follow but it's not it's a very subjective determination which is why through the appellate court grants so much discretionary authority to the trial court when it comes to custody issues but the Vogel case is probably a good example of why you should not give up too quickly when you're dealing with parents and conflict I indistinct mother was appealing the denial of cross motions by both father and mother they were requesting a modification of a joint legal custody plan that was put in place by their original judgment and father felt sole legal was appropriate and the joint legal was not workable and mother felt the same thing that so legal was not appropriate or jointly was not appropriate and so legal with her with the appropriate custodial arrangement for these children this particular case although appealed because when ultimately happened the trial court denied both cross motions and maintained the existing joint legal custody plan despite the fact that two parties were seeking a change from joint legal to sole legal so the presumption that because both parties don't want are seeking sole legal doesn't necessarily mean that this joint legal will be disposed of in this case shows that very fact the courts felt that there was some alleged acrimony and they even went so far as to say there may be future acrimony but there was enough substantial evidence to show the parties efforts to work together and making decisions together that the trial court's ruling or determination that the joint legal custody plan should remain in place should be affirmed so in this particular circumstance this is an example where you might have two parents that they don't want so legal but joel joint legal remains in place in evaluating a legal custody plan one of the factors of one of the eight factors to be considered that we stated earlier in one of the slides regarding 452 375 0.2 and worked more specifically 0.6 states that a history of abuse is relevant in the determination of custody and again legal and physical custody this 2007 case from the Western District was a matter where father was appealing an order with sole legal custody of the parties children that was granted to mother on the grounds that father was not allowed to testify to alleged physical altercations or physical attacks by mother to father and a trial when father was attempting to testify to that mothers counsel objected on the grounds of relevancy the court upon further inquiry heard from counsel that counsel for mother claimed that it wasn't relevant because children weren't present during the alleged abuse event and the court agreed and excluded the testimony the appellate court disagreed and said that it's not regardless of whether the child was present or not physical abuse or a history of abuse between parents not involving the children is still a relevant consideration in determining whether legal cuts and in determining the legal custody result in a case so it was reversed and remanded for further testimony on that particular fact often times as domestic practitioners I think we've run into situations where clients come to us and are claiming that the legal custody arrangements are not working and cite a particular event or an occurrence to illustrate their point as to why it's failing this particular case decided in 1998 by the Southern District it was an issue where there were cross motions to modify that joint legal and so a joint legal plan to saw a sole legal plan mother apparently claimed that father was failing to keep her advised of medical decisions that father had made choices regarding the surgeon for their child for a tonsillectomy and have excluded mother from that decision and also taken the child to the ER without telling the mother until a week later and another allegation regarding a tetanus shot that was preserved actually an inoculation for tuberculosis that apparently was given to the child without mother's knowledge although mother the evidence showed that mother had also attempted to do the same thing the court found that these allegations in and of themselves were a non-recurring event and because of that they felt that did not rise to the level of changing the actual legal custody that's in place so the judgment ultimately was reversed and remanded back because the court the appellate court felt the trial court had taken a sledgehammer by changing legal custody based on certain individual events that were not recur again citing back to the public policy of trying to preserve the joint legal custodial arrangement that existed another more recent case this is a 2003 this again speaks to and I've tried to pull a lot of the cases out where legal custody on appeal was actually changed which is more rare obviously based on the burden of proof than those that are affirmed but it helps us see where the appellate court is willing to make a change in invade and make decisions contrary to what the trial court may have made and this is one of those cases where mother was appealing a judgement changing joint legal to sole legal custody to father apparently there had been evidence presented by father that mother was not forthcoming regarding certain insurance information for the child and even went so far as to say there were some disagreements regarding daycare placement and the choice of a particular parochial school which logically you look to that and think well these are joint legal duties of legal custody decisions that directly reflects or invade or deals with the welfare of the child dears with their education so perhaps the joint legal custody would not work the appellate court found that these disagreements did not appear to rise to the level that the parties could not make decisions regarding the well-being of the child in essence agreeing that the changing of joint legal the sole legal was inappropriate because these particular events were not of such importance as to require a disruption of the original legal custody plan so again a situation where the appellate court felt this would not be in the best interests of the child the next case this is a 1997 case a little bit older but also speaks to the joint legal custody situation where mother was appealing a joint legal custody award that father argued the trial court agreed that an award of joint legal is necessary to prevent mother's interference with father's rights to custody and this is apparently the trial court felt that the implementation of a joint legal custody award would somehow assist in preventing mother's interference with father's legal custodial rights so the trial court entered the joint legal custody to force the parents then to work together the appellate court disagreed they felt that legal custody was not meant to ensure that a parent maintains a relationship with a child again we're going back to what's in the best interests and the eight factors it's not it shouldn't be used to encourage a relationship between the parents because again going back to that two-factor test there was no evidence to show that the parents are no evidence to show that the parents could work together as a parental unit had a commonality of beliefs so going back to the basic elements of legal of a legal custody determination the court felt that this was not the proper reason to award joint legal custody now moving into the physical custody topic the statute again does not give specifics as to what joint physical custody is the case I have cited here is one of the first cases here in the Eastern District that dealt with this issue it's actually a case that we were involved in tried the case we represented father big surprise another firm represented mother we tried the case it was a situation where mother was a stay-at-home parent father would worked outside the home the children there were two children actually twins there were allegations of sexual abuse made by mother against father that were unsubstantiated mother was asking for sole legal and sole physical custody father was asking for joint physical and so legal although ultimately at the beginning it was joint legal but it was later amended the case the trial court came down with a ruling awarding two fathers sole legal and sole physical custody with a schedule that provided mother 43% of the custodial time during the school year and it was a sharing of the summer schedule during the summer break on appeal mother appealed a number of issues but the one that was successful was the appeal of the designation of the mother actually received although the trial court delineated the custody of sole League or sole physical custody the appellate court disagreed finding that that percentage of time that mother received with the children was significant and that in fact that the court had awarded her joint legal or joint physical custody so instead of remanding at the tree appellate court I was able to reverse and correct the judgment at the appellate level to real Abel the custody joint physical custody now having done that the question now becomes well what constitutes joint physical custody so I did a bit of research to find recent cases that have defined physical custody as what is joint physical found a recent case in the Western District in 2012 the Clark case in this particular scenario the parents father was granted custody at a schedule from 7:15 a.m. in the morning on Wednesday to 4:45 p.m. on Thursday and week one and week two it was 7:15 a.m. on Wednesday to 4:45 p.m. on Friday alternating holidays with the other parent and five consecutive days with the child during the summer break not even close to a 43% of the time in this case the appellate court confirmed and that that is a joint fees physical custody schedule they found that the Appellate Court for the Western District found that is significant time with a child and as a result is not sole physical with mother it's actually joint physical with mother although substantially different than the custodial time that mother has with the child in a similar case in Rand marriage of house which is actually cited by the Clarke case the parent has a schedule very similar to Seguin thaller which is in every of weekend schedule no midweek visitation though alternating holidays and one week in the summer and in coming to its conclusion in Clark they rely on house because house also concluded that schedule was in fact joint physical custody so in this situation physical custody in order to have sole physical it would have to be substantially limited which is really rather surprising based on the 2012 Clark decision but apparently a short of a long distance custodial arrangement where contact would be fairly infrequent as long as there is periodic frequent contact regardless of the extent of the length of time it seems to be fall within the category of joint physical custody now relocation is a factor that comes into play where truly and as a domestic practitioner there is a winner and a loser in these cases as in most of our other cases there truly it's a gray area but in this case when a parent wants to relocate with a child it's going to be enough thumbs up or a thumbs down and they're often very difficult to settle the statutory authority is of course 450 to 377 the statute is very sets forth a framework within which a parent who is relocating must notify the other parent within a certain period of time 60 days prior to the proposed relocation of the relocation with the child there there is a list of information that must be provided the notice including address contact information where the child might go to school it's very detailed and it's based on what the relocating parent knows at the time the notice is given and then there is also a structured response that the non relocating parent must follow in order to object in Indi in the Smith case we have the Smith case spells out very clearly after the most recent or the latest I should say amendment to 452 377 it shows what the burden of proof is for a relocating parent to prove or successfully proved that the relocation of the child is truly within the best interests of that child first they must show that the relocation was done or made or the proposed relocations done are made in good faith and meaning that that parent the relocating parent is not relocating the residents of the child to deprive the non Rowley relocating parent of time with the child and then secondly whether or not the relocation is within the best interests of the child which requires a 452 375 analysis of the eight factors in order to assess whether a relocation is appropriate for that particular child the schlattman case which is a 2006 western district case speaks to that more specifically in the sense that the court specifically found in that case that the relocation of a residence of a child still requires the analysis of a value of the 8 factors in 452 375 and again relocation is relocating the principal residence of the child so even though you might have a joint physical custody arrangement there is a parent who has the principal residence of that child which is typically based on the amount of time they're spending although not always and that principal residence is what dictates who the obligated parent is if they choose to relocate the residents and when 452 377 notice is required this isn't a rather interesting case that was decided back in 2011 it's in this particular situation it was a paternity action and in this case father had filed a paternity action when mother was indicating and intent to relocate to the state of Ohio with the child ultimately the court granted sole physical custody to mother but ordered mother to relocate back to Missouri the court the matter was appealed by mother and of course the appellate court concluded that unless mother agreed to relocate and absent any statutory authority because 452 377 is not authority that can require the court to order a parent back that the court did not have jurisdiction to order mother to relocate back the 452 377 authority is vested within the court to order the relocation of a child back to a jurisdiction which creates the need for particularly an objecting party to file along with their objection to relocate depending on their custodial circumstances a motion to modify so that the court then has the option if the custodial parent or the relocating parent refuses to return it gives the court the authority then to transfer physical custody of the child should the relocating parent not choose to return back to the state as I stated earlier the statute has very specific requirements regarding the notice of relocation this is a case it's a 2013 case very recent in the Western District where mother had appealed the denial of her relocation and in part relied on the fact that father failed to comply with the time restriction set forth and 452 377 to object to the relocation as the statute reads if there's a failure to object within the time constraints set forth in the statute the presumption is the child may then relocate in this particular case father did and it was an undisputed relocator did not provide the notice within the statutorily required period of time the court though still denied her relocation mother appeals the appellate court reviews the record and found that mothers notice provided a city and state of relocation also a brief description of a residence that she claimed was 4000 square feet but on further investigation of the evidence it was the trial court evidence showed that she did know of an address but did not provide the specific address in the notice and that the we address was actually a modular home and a small piece of land and not the 4,000 square foot home she had set forth in the notice because of that misleading information the courts felt that father was not given adequate notice and therefore could not comply with the restrictions of the time restrictions set forth in the statute finding his objection timely so although as a relocating parent you can there is a fairly bright line rule as to when a relocation notice must be objected to in order to prevent the relocation make sure that that relocation notice has as much of the information you know that's required to be produced pursuant to the statute this is an interesting case it's a 2002 western district case in the judgment and father appeals the judgment the judgment provided for a one-time right to relocate within a specific geographical area without either party having to comply with 452 377 and this was a ruling by the trial court Father appealed and the appellate court concluded that the trial court was not able to prevent are actually to prevent or not require a party to provide the requisite notice under 452 377 by granting this one time right to relocate that the trial court had stepped outside of its jurisdiction to make this order and was reversed and remanded for correction of that particular order so the question becomes if a court can't do that then can the parties agree to that there isn't case law that specifically addresses that but as as in other scenarios where you might have something that if both parties agree even though the court might not have jurisdiction an agreement may be able to be accomplished with that provision I would never advise you to do that simply because the statute is the controlling factor and in fact that the statute is requires the components regarding notice to be in every decree so it's a dangerous experiment that you're undertaking by doing that but certainly the trial court steps beyond its ability again its jurisdiction by ordering such a ruling lowry is a case it's a 2009 Eastern District case it speaks to the need for a relocating party in responding to an objection filed by a non locating parent to provide substantial evidence of the proposed relocation in order to succeed in this particular case mother was wanting to relocate with the child to the state of Florida and initially the trial court had granted the relocation father appealed and the appellate court reversed the relocation stating that there was a sip there was not sufficient evidence to prove or to allow the court to undertake the analysis of whether the relocation was in fact in the best interest of the child mother had presented no evidence regarding the living environment where the child would attend school where daycare provide a daycare provider for the child where mother would work there were these essential components that the court really required in order to do the 450 to 375 analysis of the aid factors and the appellate court felt that the trial court could not do that without this information so it was reversed and remanded for further consideration this is a 2011 case which I think helps us understand that relocations are rarely they're rarely ever done reversed they're rarely ever challenged at our challenge of the appellate level but the appellate level rarely finds grounds or substance to to reverse a denial of a relocation and go in reviewing cases involving relocation this becomes apparent that the majority of those where the relocation has been denied there is not a reversal I bring this up as one of one of the last topics to discuss today because this is a topic that many people bring up as reasons or for support of why physical or legal custody should be sole or joint challenging parents interference with another parents rights and contact with a child parent alienation syndrome and we find in domestic relation practice that many clients have heard this term and use it frequently and freely and I don't think a lot of us truly understand what we're dealing with when we're talking about parent alienation syndrome which is or pas it's actually a syndrome that was identified by dr. Richard Gardner he's an American psychiatrist who frankly identified this back in the mid 80s at a time when there was a tremendous spike in sexual abuse allegations and divorce cases and he identified what he describes as a syndrome that brainwashing and programming that it tends to occur in child custody cases he believes that specifically there are eight factors in evaluating whether a child is the victim of a parent alienation syndrome in such a syndrome there is what's considered a favored parent and a target parent the favored parent of course being the actor of the alienation the target parent being the alleged victim of the alienation the eight symptoms I've outlined before in this slide and then the four in the next first being the denigration or hatred toward the target parent the second being weak absurd or frivolous rationalizations for this deprecation and hatred by the child of the targeted parent the third being a lack of usual ambivalence about the targeted parent and then fourth being the lack of guilt over the treatment of the alienated parent and again these are symptoms the fifth is a reflexive support by the child of the favored parent then we have the sixth being the use of borrowed scenarios or phrases from the alien when talking to the child about the target parent strong assertions that the decision to reject the parent is theirs that the child is an independent thinker and that they are not under any undue influence from any third party and then the denigration not just at the targeted parent but also family members extended family friends of the targeted parent the important thing to keep in mind with parental alienation syndrome it's really not specifically recognized by the medical community and it's not typically recognized by the legal community in the sense that it it tends to outline a series of symptoms which are relevant to a custody determination but when you're encroaching upon a diagnosis of a syndrome that is not recognized you're going to run into evidentiary problems at trial when I looked through some cases to update myself most recently addressing parent alienation I came across a couple this is a Southern District in 2000 Southern District case in 2008 and in this particular case one of the most significant factors in granting joint legal custody of the child to both parents was the possibility of parental alienation syndrome what happened in this case is that the court felt that the behavior of one of the parents using dr. Gardner's label a favored parent apparently created concern about father's ability to participate in the upbringing of the child and the decisions of the child of the court was entering some sort of joint legal custody arrangement to help solve that problem this is a little contradictory because the case I had mentioned in the earlier earlier in this presentation indicated that you know joint legal custody was not meant to improve a relationship between a parent and a child yet this seems to indicate that it's appropriate to facilitate such a relationship I think there is a bit of a conflict we're dealing with an Eastern District case on the one and this is a Southern District however both are good law but this is a situation where the courts they're not affirming the existence of parental alienation but they're identifying it as a descriptive term of the behavior that the favored parent is exhibiting and causing issues or problems for the target parent a curious thing though I looking through these cases again because it is not a recognized medical condition or a psychiatric condition within the medical community this particular case and then the next one and I'm going to be citing no one at least the record did not seem to reflect a challenge of whether such evidence should be admitted into evidence and frankly this next case there was it's a 2010 Southern District case there was substantial evidence of a therapist opining that the children in this particular case there was it's a mother and father were divorcing six children all six children were believed to be the victims of mothers alienating behavior a father that the three were so old were of were teenagers they were seen as participants in the alienation to alienate the three younger children and what happened in this particular case is that the three younger children that father was granted sole legal custody of the three younger children because there was a belief that mother was behaving in such a way that it was against the best interests of the child and excluding father etc but when you look at the Dom the judgment itself you've got an expert testifying to parent alienation syndrome you've got a GL testifying to parent alienation syndrome and yet I couldn't find anywhere in the record where mothers attorney objected to the admissibility of that evidence using the Frye test I mean is that this and again for I versus United States the very basis of evaluating expert testimony and expert up and evidence regarding health conditions medical conditions of dominium just couple there's you would be successful in challenging that under the FRA test to prevent or exclude references and diagnosis of therapists and testimony from GA LS regarding a parental alienation syndrome or the existence of such a thing that doesn't mean that the behavior or the characteristics which were evidenced in the two previous slides regarding the eight symptoms certainly that evidence would be admissible in assessing or evaluating the legal and physical custody of parents but in and of themselves but to group them together label it a psychological condition or psychiatric condition it's really you're really on shaky ground I think if you're attempting to try and base your case on that tie on a parent alienation syndrome label so I think when dealing in this particular case again the the transcript is peppered with the diagnosis and the testimony but in looking at it the actual ruling the court doesn't make findings of parent alienation the Court did appropriately identify particular behaviors in their eighth factor analysis in supporting its conclusion giving father sole legal and sole physical custody of the three youngest children so I think from the appellate level or from the appellate perspective they could uphold that trial court decision because there is not a specific finding in fact it's really not addressed other than the recitation of the actual testimony about parent parental alienation syndrome so I think that's an example where evidence may be presented you can take that chance that there won't be an objection or an inquiry as to whether that's an actual syndrome that can be testified to and in this case no one did father was still successful in the trial court was savvy enough not to make findings on that particular syndrome which could cause problems with the appellate level but it's it's a buzz word or a buzz phrase that unfortunately a lot of clients tend to use for single incident single incidents of behavior that might fit within categories of the AIDS symptoms but over in and of itself might not demonstrate a practice or a history of this type of behavior so in moving forward again I'd focus on the symptoms and less on the label so in conclusion I have to say that again public policy favors joint legal and joint physical custody it's a it is a first consideration by the court in evaluating the appropriate custodial arrangement and then move to the next group whether it's so legal or so physical but it appears as though that the appellate courts are willing to reverse such orders if the proper analysis has not been done to save or preserve a joint legal and joint physical custody arrangement and if you have a case where you've got parents a parent who is indoctrinating behavior within the child that you believe falls within the general an unofficial label of parent parental alienation certainly the employment an expert is important but be aware of the potential admissible 'ti of that syndrome we have a few moments if there any questions breakout group maybe no we'll go ahead and take a break then and we'll come back

Channel: Cordell & Cordell

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Keywords: Child Custody (Legal Subject), Parent (Literature Subject), Family Law (Field Of Study), CordellCordell, Custody, Domestic, Law, Legal, Advice, Family, Battle

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Length: 53min 24sec (3204 seconds)

Published: Mon Jul 22 2013