YOUR COLORADO CUSTODY CASE: HELPING YOUR ATTORNEY HELP YOU

June 14, 2012

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Having dealt with hundreds of Colorado custody cases over the years, I am well versed in what is needed to effectively prepare for and litigate battles regarding visitation and decision making. The key to handling custody matters truly rests with preparation. However, this preparation is not just related to your final hearing. The preparation begins from day one of the attorney/client relationship. It involves changing behavior patterns, changing ways of thinking, preparing to deal with the custody expert(s) who may be involved in your case, changes in terms of how you speak to your children, and more.

We have all heard the catchy sports proverb, "there's no 'I' in 'team'." There should also be no "i" in "attorney/client relationship," though linguistically there are technically three. By this, I mean that preparation in a custody case truly takes a joint effort. The skill of phenomenal Denver custody lawyers, with great experience and courtroom skill, is only going to go so far without the input and assistance of his or her client. Attorney and client should truly be a team in preparing to go through the custody case.

Over the years, I have arrived at the conclusion that the best results are gained for a client in a custody case when he or she is involved from the ground up in terms of preparation. As such, I strive to inform clients of various things he or she can do to help. I also make it a rule to try to prepare my clients for dealing with custody experts and getting ready for their final hearing. Below are some of the tools I employ, which are ultimately designed to help you, the client:

1. Writing out your story: A Colorado custody case is not just as simplistic as "I'm a good mom" or "I'm a good dad." Each case has a potential history to it. There may be things that were said or done related to the child, with the child, or with other people that may matter. The littlest whiff of information may have a bearing on the outcome of a case. Perhaps I am being a little melodramatic, but some fact from two or three years back can be pivotal. I see it. As such, I will often ask my clients to write me out their "story" or a chronology of the good, the bad, and the ugly related to the raising of their child. This chronology should include statements or actions of the other party, important events in the child's life, areas of concern, etc. I will generally ask people to go back three to four years. I don't need to know about Timmy's, who is 12 years old, potty training at age 4. I do need to know about his dad yelling at him and calling him mean names for getting a C on his spelling test at age 10. By putting past memories related to the child on paper, particularly in chronological fashion, a client is forced to organize, conceptualize, and contextualize his or her thoughts. This can assist the client with getting ready to testify in court or discussing the case with a child and family investigator or parental responsibilites evaluator. Additionally, it provides me with a written summary of facts I may need to be aware of or may use to the client's advantage. On a financial note, I often say, "I can read in 20 minutes what would take us 2 hours to talk about." Though I would love to talk to my client for 2 hours, I would rather save him or her money and receive the information straight from the source, with the ability to go back to it for reference as needed.

2. Keeping a journal: As indicated above, the past history regarding a child is important. Recent or current history matters as well. Custody cases can take as much as a year, depending on the county. A lot can happen during that time period. It is important to have clients keep a journal of things that occur while the case is pending. This should include behaviors or things said by the other party, as well as the child. A journal might be admissible in court. It might be shared with a custody expert. If nothing more, it is a way to record newer occurences which I, the attorney, might find relevant. I always instruct clients to make sure they keep the journal secured, such that neither the other party, nor the child, can get to it. The time period in which a Denver divorce or custody case is pending can be emotionally charged. This may be a good time to record events related to your ex behaving badly purely out of the motion that comes with this type of litigation. As with the chronology, the keeping of a journal may also help save money on attorney fees.

3. Saving texts, e-mails, and on-line postings: In this day and age of electronic, instant information, people text, e-mail, and post information probably more so than speaking. This can be particularly true when you have two people engaged in an ugly case, both of whom have little desire to speak with each other. Human nature often leads to people stating nasting or damaging things when embroiled in a custody battle. Once a text or e-mail is transmitted, it can't be taken back. The content is preserved, ready for use in court. Though the other side could certainly deny that he or she said something in a face to face coversation, there is no hiding that which is put into writing. Social networking sites, such as the giant with the recent poor IPO performance, should also be reviewed, presuming access can be legally gained. The other side's wall or postings can be full of relevant information related to your custody case. Save those e-mails, preserve those texts, and print out those walls or postings. I ask clients to do these things, with the hope that some tidbit of information helpful to us when it comes time to set foot in court will arise. This should be an on-going endeavor while the case is pending. Of course, one should keep silent in terms of not letting the other side know what you are doing in terms of preserving this information. There is nothing greater to family law attorneys in Denver than being able to use what we call in evidentiary terms a "statement of a party opponent" in the courtroom. In essence, you can use the other party's words against him or her.

4. Gathering outside information: In some custody cases, issues can arise related to topics such as school performance, police interactions, or medical/mental health issues related to the child. In these cases, the attorney, or the custody expert, will likely need to see various documents. It is helpful to identify the issues early on. Once done, your attorney will then be able to ascertain what various documents might be needed. In most cities or counties, people can get police reports directly from the relevant department. Grade, attendance, and other school related documents can be gotten by any parent from a school. Medical and counseling records should also be easily gotten by a parent, depending sometimes on the age of the child. Once it is determined that outside documents are necessary, it can be helpful to get the client started with procuring those documents right away. It is better to know things sooner rather than later. One must keep in mind that some documents, such as police reports or medical records, may necessitate ultimately subpoenaing the documents and/or the person who issued them. This relates to authentication and admissiblity issues which I will not get into at this time. Other documents, such as report cards, will generally be admitted by the court without issue. Documents which might otherwise be inadmissible in court may come in if they have been provided to your custody expert and are part of the basis for his or her ultimate opinion. Having the client try to initially obtain the types of documents referenced above can also save on costs. Attorneys and paralegals cost money; subpoenas do, too. With documents available to the public, better to save the client money and have him or her go down to that police department to get that report.

5. Preparing to talk with experts on the case: As indicated above, some cases will involve the use of a custody expert, either a child and family investigator or a parental responsibilities evaluator. These are neutral third persons whose function is to investigate the relevant aspects of a custody case and report to the court. For further information as to these experts' functions you can refer to one of my prior blog posting on the subject of CFI's and PRE's.
Over the years, I have come to believe that every word, every move, and every fact in a custody case has the potential to affect the ultimate outcome. When experts are involved, it is extremely important for the client to know the right things to do and say with the expert. It should be noted that we, as Denver family law attorneys, do not generally get involved with substantively dealing with the CFI or PRE. They are not investigating the lawyers. As such, the primary burden of dealing with the expert rests with the client. Therefore, it is vital for the client to be prepared to interact with the custody expert. A client should be informed as to the expert's function, and the general methodology he or she may employ. A client should know what to say or not to say. The client should also have a grasp of what might matter or be relevant. The client should be informed about providing documents to the expert and how written communications with him or her may matter down the road, in court. I have seen countless cases in which the other party, even with an attorney, shoots himself or herself in the foot by saying and doing all the wrong things with the custody expert. At times, I am truly shocked. Though I would like to presume that all attorneys take the time to prepare their clients to meet with the custody experts, I know that presumption is wrong. In my cases, I generally ask my clients to set a time to speak with me roughly a week or less before their first interaction with the CFI or PRE. Though I cannot change the facts as they exist, it is very rare that one of my clients blows it when talking with the custody expert.

With any of the preparation tools set forth above, communication between attorney and client is the key. On the attorney's end, it is important to know what must be conveyed to the client to effectively employ these tools and obtain the desired information or results. For the client, don't be afraid to ask your attorney questions. Don't be afraid to raise concerns or point out areas which you believe need to be looked into. Help your attorney as he or she helps you. Being an effective team can greatly help in trying to obtain the best possilbe outcome in your custody matter.