| CASE ONE (1) The parties each have a limited but adequate amount of litigation funds. Each of them hires a lawyer. (2) Lawyer A subpoenas witnesses and gathers evidence pertaining to each of the statutory custody factors. (3) Lawyer B subpoenas witnesses and gathers evidence pertaining to each of the statutory custody factors. (4) The witnesses are deposed, and each party's evidence is examined by the other. (5) A hearing date is set, for which the judge has allowed adequate time to hear all the evidence. (6) At the hearing, the witnesses testify in court, and the documentary evidence is introduced into court, all in accordance with the rules of evidence that have been developed to help assure the reliability of the evidence, and subject to cross-examination. (7) The judge makes a decision. Maybe it's appealed. And maybe it's not. But for now at least, it's... (8) Done. | CASE TWO, having the addition of a helpful professional (1) The parties each have a limited but adequate amount of litigation funds. Each of them hires a lawyer. (2) Lawyer A subpoenas witnesses and gathers evidence pertaining to each of the statutory custody factors. (3) Lawyer B subpoenas witnesses and gathers evidence pertaining to each of the statutory custody factors. (4) The witnesses are deposed, and each party's evidence is examined by the other. (5) A hearing date is set, for which the judge has allowed inadequate time to hear the evidence. (6) At the hearing, the lawyers rush through an inadequate presentation of their respective cases. At the end of this inadequate cursory hearing, the judge does not feel that he has sufficient information to make a decision, and so his ruling is for the appointment of a custody evaluator. (7) The parties are ordered to take a portion of their litigation funds and divert them to payment of the evaluator. When one of the parties objects, the judge makes a snappy quip poo-pooing this objection and pointing out that the party had plenty of money to hire a private lawyer and issue lots of subpoenas and do depositions. (8) The evaluator, a psychologist or other mental health professional who is not qualified by training to act as a judge or legal investigator and evaluator, let alone pose as an "expert" in these matters, nevertheless believes that he is the "eyes and ears of the court" and the all-around uber-mavin. The evaluator commences his untrained detective work.
He reinterviews some of each party's witnesses and ignores others. He decides that he needs to hear from different witnesses, aka "collaterals" who have not been introduced by either party and proceeds to send these people letters, and hold telephone and in-person interviews with them. Some of them he finds credible, and some not, and on his own, weights what they have to say accordingly.
He second-guesses the parties' respective presentations of the various custody factors, and decides that some of them, such as "morality" are not relevant. He ignores legal presumptions or burdens of proof applicable to others, because he does not understand these. He applies a criminal law burden of proof ("beyond a reasonable doubt") to factors that strike him as being similar to criminal matters. To others that he feels come within some area of his "scientific expertise" he applies the standard of "to a reasonable degree of scientific certainty" -- and if they don't meet that, discounts them altogether.
He has the parties and the children all sit for a battery of psychometric tests. He decides that there are diagnoses that could be applied to one or both parties, as well as issues they could have but did not introduce, and so includes these.
He does a home study.... etc. (9) The custody evaluator issues a report with recommendations, which may or may comport with what the judge in Case One would have decided, but frequently are somewhat or altogether different, and in some cases are completely crackpot, the result of ignorant thinking riddled with bias. But let's not presume anything for purposes of this exercise, and say only that Party A likes the recommendations and Party B does not. If Party B now has been drained of adequate litigation funds, a settlement might occur, and injustice quite likely along with it. If not... (10) A second hearing date is set, for which the court again allows inadequate time to hear the evidence because he thinks he can rely mostly on the court-appointed custody evaluator's recommendations. Even though the court has shortchanged the parties' time at both hearings, the combined time, especially with the addition of multiple interim hearings and discovery squabbling, will now likely equal or exceed what the judge in Case One had to provide. This second hearing is going to be primarily about, not the case, but the custody evaluator and what he did. (11) Lawyer A issues subpoenas and gathers evidence pertaining to the custody evaluator, his training, and the favorable and/or new witnesses and hearsay evidence he used in his report, in order to support Lawyer A's case at the upcoming second hearing. Some of this involves re-doing work already done for prior witnesses who, according to the evaluator's report, provided "evidence" more recent or otherwise different from that in their prior depositions. (12) Lawyer B issues subpoenas and gathers evidence pertaining to the custody evaluator, his training, his investigation process, his tests, and unfavorable and/or new witnesses and hearsay evidence he used in his report. Some of this is psycho-babble-specific work, which induces Lawyer B to hire a consulting forensic. Some of this involves re-doing work already done for prior witnesses who, according to the evaluator's report, provided "evidence" more recent or different from that in their prior depositions. (13) The amount of legal work for the parties and their lawyers now has been increased exponentially. Exacerbating this... (14) Party B hires a reviewing evaluator to help him prove that the court-appointed evaluator was inexpert, untrained, biased, or otherwise did his evaluation improperly, and plans to move for a second evaluation. (15) Lawyer A issues subpoenas and evidence pertaining to the custody evaluation reviewer, his training, his thinking processes, and depending upon how bad the court appointee apparently was, also may hire a consulting forensic... (...) At some point it's such a mess that no one remembers what the issues in the case originally were. Years may go by. Judges rotate and change. Parties run out of money. Lawyers withdraw for nonpayment. Tempers flare. Mistakes are made. Squabbling over discovery geometrically increases.. Because of the lengthy time in which the litigation continues, new events occur which have to be addressed. Temporary judicial orders based on inadequate and bad evidence have been repeatedly uttered, contested, and possibly appealed. A frustrated judge may order a parenting coordinator. One or the other party may be ordered into various supervised visitations or therapies at the recommendation of the custody evaluator, or of a guardian ad litem who thinks that custody evaluators know what they are doing. Parties positions harden and polarize. An inordinate amount of parental time and money, resources that otherwise should have gone to the family and for the children are forever gone... and it just goes on and on... An improvement, do you think?
...Children need This? |
