edited by Laura Ramsey
“Ask Three Mentors” is a question-and-answer column, produced exclusively for Insights, that highlights the fact that members of AFCC are attorneys, judges, and mental health professionals. Many of our most experienced members are committed to mentoring and passing on the wealth of knowledge they’ve acquired through years of work in the field of family law. Each month we will pose a custody-related question to three members of our panel of exceptionally experienced and widely respected family law experts. Our readers will then have the benefit of hearing the answer from the perspective of a judge, a mental health professional, and a family law attorney. Please submit your questions for our Mentors here. For biographies of our Three Mentors panel members, go to this page.
Below our Mentors answer this question:
Which collaterals are typically most and least helpful as witnesses in custody disputes, and why?
Judge Michael Bishay
The mudslinging contest continues to be alive and well in family law, but this method is rarely helpful to the court. Instead, please consider giving the court helpful information and suggestions, not emotional ones. If this is your first request for order, the court wants to know the status quo. Find a credible witness who will corroborate each party’s duties and responsibilities towards the minor child (through a declaration). A teacher, for example, can corroborate which parent drops off the child, and each parent’s involvement in the child’s school and school work.
If this is a request for modification, and you represent the party who is requesting a change, identify the problems with the current schedule, propose a new schedule, and then find a witness who can corroborate the problem and/or the solution. A school teacher who observes that the child is always dropped off late by one parent but always on time when dropped off by the other, or homework is always of great quality and turned in on time when the minor is in the custody of one parent, but frequently inadequate and late when with the other, is very helpful to the court.
If you represent a party that has not been doing well (late arrival to school, past domestic violence against a child, etc…), try to avoid denying the allegations or attacking the other parent in the hopes that the court’s attention will be distracted. This method does not work, and only makes the court more concerned about your client. Instead, encourage your client to admit the wrong, apologize, commit to a new healthy plan that will benefit the minor child, and show the court the steps your client has taken to implement this healthy plan.
For example, In J.H. v. G.H. 63 Cal.App.5th 633, 1st District, Div. 3 (2021), father admitted to domestic violence, stated that he was ashamed of his conduct, and showed a clear desire to have a healthy relationship with his children. He had completed a 52-hour batterer intervention program, 12-hour parenting program, and was attending individual therapy to change his alcohol consumption habits. The professional supervisor testified that father did everything that was asked of him, showed interest in his children, and attentiveness to their needs. As a result, the court issued a DVRO protecting mother, but not the children (please see case for all the reasons for the court’s decision).
S.Y. v. Superior Ct., 29 Cal. App. 5th 324, 240 Cal. Rptr. 3d 137 (2018), father, who had minimal professionally supervised visits ended up with joint legal, joint physical custody only twelve months later. Father A professional visitation supervisor reported that the minor was comfortable with father, that his parenting style included teaching and structuring properly, and that he played with the minor and laughed together. In addition, father’s relatives testified that father played with the minor, corrected him appropriately, read to him, taught him English, and cared for him by feeding him and changing his diapers (please see case for all the reasons for the court’s decision).
We learn from these cases that it is best to ensure that your witness focuses on presenting the true facts, acknowledging fault and highlighting successes. Present the witness that is child centered and knowledgeable about the child and issues before the court. Where your witness may be lacking in eloquence, the court will always be quick to forget the mediocre delivery, but be grateful for the truth.
Our judges are bright, well trained, and can draw the truth from any witness. In re Marriage of D.S. & A.S. 87 Cal.App.5th 926, 6th District (1/23/2023), the appellate court expressed that family law Judges are expected to play a more active role in developing the facts. This means that the court has the authority, duty, and obligation to ask questions of the parties or witnesses and obtain all the facts necessary for the court to reach an accurate conclusion and make accurate orders.
An attorney shouldn’t be concerned if the witness is not as eloquent as the other side’s. Instead, ensure that your witness focuses on presenting the true facts. Where your witness may be lacking in eloquence, the court will always be quick to forget the mediocre delivery, but be grateful for the truth.
If you need to prep a witness, please tell him/her to:
Say it how it is, not how you hoped it would be
Admit to what it is, not what you want the judge to see
Don’t keep things as is, but show a willingness to change gently
Speak from your heart, the truth will set you free
Dr. Lyn R. Greenberg
I am writing this response from the perspective of a parenting coordinator (PPC in Los Angeles); I frequently manage cases in which there are disputes regarding a child’s medical condition or complaint of physical symptoms, mental health issues, special educational needs or other disability. These conditions can have a pervasive effect on all areas of child and family functioning, and increasingly require that the PC be able to translate and utilize information from systems (such as educational, medical, and legal systems) that do not always communicate well with one another. Physical and psychological symptoms and educational difficulties are also increasingly common, particularly among children who have been exposed to Adverse Child Experiences or prolonged parental conflict. Professionals involved in the child’s care, including both professionals and those who observe the child in various environments, are essential sources of collateral information. For evaluators, these collateral sources can be important in assessing each parent’s functioning level and abilities, and in assessing the child’s needs. For the PC or therapist, such informants are essential for decision-making and helping the parents understand information from professionals, overcome conflict for the benefit of the child, accept discordant information, and master any special abilities needed to assist the child. The PC or coparenting therapist may also serve an essential role in helping parties gain a more accurate understanding of what an external professional has told them, and cooperating to meet the child’s needs.
Toward that end, consultation with a child’s pediatrician may be essential in both understanding physical complaints understanding how the parents function, and what the child experiences, at appointments where both parents are present. A PC or therapist may also be of immense value to a pediatrician, educational or occupational therapist, or other professional who may be caught in the middle of the parental conflict but unfamiliar with the family law context. In such cases, the PC may serve as a buffer, allowing the other professional to focus on their own role while gaining valuable information to assist the parents.
There is always a tension between speaking with collaterals who are in the best position to observe the child and the difficulties that such cooperation may pose for the collateral informant and ultimately the child. Of course, the choice of collateral informants will depend to some degree on the issues in the case. For a situation without medical complaints but with allegations about parenting, a nanny or visit monitor may offer crucial information.
Finally – there are differing opinions about whether and how to consult with therapists, and whether there is useful information to be gained particularly from parents’ therapists. Some believe that adults’ therapists will just reflexively support the interests of the parent they are treating. Conversely, it may be useful to know what type of therapy a parent is receiving, whether a parent’s therapist is challenging dysfunctional behavior or simply supporting a parent’s perspective. In the latter case, a PC may be able to assist the therapist and each can offer the other professional valuable information. If collaborative relationships are developed and services are coordinated, the entire family may benefit.
Further information about these issues can be found in Greenberg, McNamara, Weisz, Altobelli and Davis (2023), just published in Family Court Review, which can be found , https://onlinelibrary.wiley.com/doi/10.1111/fcre.12730 [Greenberg, L. R., McNamara, K., Weisz, B. E., Altobelli, T., & Davis, F. (2023). Managing Children’s and Adolescents’ Medical Complaints Amid Parent Conflict: Strategies and tools for professionals. Family Court Review]
and in Greenberg and Schnider (2018), which was published in the AFCC-CA Chapter newsletter [Greenberg, L. R., & Schnider, R. (2018). Managing Special Needs Issues in Child Custody Disputes Practical Strategies in Changing Times. AFCC-ca Newsletter, 16, 4–7.]
Attorney Deborah H. Wald
Forensic psychologists and other child development/mental health professionals can be critical to developing the court’s understanding of best interests of a child, as well as to explaining concerns about a parent’s behaviors and the impact these behaviors may have on capacity to parent responsibly.
Other people whose connection to the case is through the child (as opposed to through a parent) also can be very helpful witnesses. This category includes teachers, coaches, the parents of the child’s friends, etc.
Typically, least helpful are witnesses who clearly are partisan – e.g. a parent’s family members or close friends – because these witnesses tend to be seen by the court as biased and therefore less credible.