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Crass Calculations for Custody

I always tell my clients that everything in family law has a dollar value and therefore can be and should be evaluated from a cost/benefit analysis. Everything, that is, except for one thing, the children.  When the issue is the children you leave the realm of apples to apples comparisons and enter the land of apples to oranges, or more correctly, apples to antelopes or atoms or the andromeda galaxy.  When custody is at stake, how can you ever place a dollar value on it?

Family law attorneys know this well.  This is where the cynical canines come out, snarling, perhaps drooling over the money to be made by spendthrift parties as they attack their frightened ex spouses over custody of the children.

Case in point: Dad has supervised visitation.  On a Saturday afternoon, I receive an email from the Guardian ad Litem announcing that dad has to have visitation on either Christmas Eve or Chistmas Day.  This is the first time this issue has been raised.  The first time in years, actually, since, when the parties divorced, dad wasn't interested in any time at Christmas because dad is not a believer and mom practices that faith. 

I forward the email to my client, asking for her thoughts on the subject.  Monday morning, as I am in trial on a whole other matter, the Guardian files for an emergency hearing contending that we refuse to communicate with her.  Mind you, historically in this case we have been very flexible with the visitation.  The guardian's rush to the court house was unprecedented and unwarranted.  When that happens, I know I'm either dealing with idiots or something else is up.

We show up for the Emergency Hearing.  The court, understandably and predictably wants the attorneys to talk first.  We've already filed our response brief letting the court know that the guardian had filed her motion less than two business hours after she had sent her email and that we were quite open to Christmas visitation.

We talk.  After the calendar call, while we are waiting for the judge to call our case in for the hearing, we talk.  Then, and not until then, the guardian and opposing counsel ambush us with their big surprise.

They aren't just interested in a few hours of Christmas visitation, they want it unsupervised and they want it for days and nights on end.

"Ha, ha," they think.  They have us on the ropes.  We were caught with our pants down.  With stealth, with chicanery, they have triumphed.

Fortunately, I didn't think I was dealing with idiots. I knew ambush had to be their strategy.

I asked for face time with the judge in a pre-trial conference. 

They laid out their case, their justification for suddenly, surprisingly moving this dad from supervised visitation to multiple day and overnight visitation at Christmastime. 

Then it was my turn.  I provided a copy of the Settlement Agreement where dad never wanted Christmas before.  I provided a copy of the visitation supervisor's report which detailed some rather unsettling events which repeatedly occurred during the supervised visits.  I cited to hospital records which were directly related to the children's exposure to dad. 

At the end of the day, at the end of all that, dad got a few hours on Christmas Eve in the morning and a few hours on Christmas Day.  Supervised.

The purpose of my story is not to toot my own horn, though I was pleased with perceiving the opposition's strategy for what it was.  All told, at the end of the day, five attorneys and one paralegal spent their day on this issue to this resolution.  Over $10,000 of this family's money was burned through that day, and for what?  For dad to surreptitiously gain the upperhand and accomplish unsupervised visitation in his larger quest for custody? Yes.  For dad to crash and burn miserably, being caught red-handed using underhanded tactics and the judge getting a preliminary view of how dad's time on task with the children has really been going?  Yes, that too.

You see, dad just got his year end bonus.  $40,000 by report.  "A fool and his money..." A spendthrift dad using his economic prowess to attack his ex, the mom, over custody of their children.

And of the attorneys who teed it up to swing for the fences, even though they struck out?  you see, they didn't really strike out. They weren't really playing on that ball field at all. Their game was something else entirely.

Apples to Antelopes.  Lucrative comparison, don't you think?

Michael Manely

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