Beaverton, Oregon family lawyer and mediator on divorce, Laura Schantz, was interviewed by Divorce Magazine and asked her thoughts on the various aspects of divorce mediation and issues that may arise during the process. Click below for the audio of the podcast, or read the full transcript below.

Child Custody Case Preparation

What are the first things to think about after a custody case has been filed?

When a custody case has been filed, the attorney will have an in-depth talk with the client about winning custody. Sometimes clients have an unrealistic expectation about what might happen. Sometimes they don’t really know what can happen in a custody case. The attorney would want to really listen to the story of their family, their lives, who’s been taking care of the kids, how involved both parents are. A lot of times in today’s day and age both parents are very involved. That’s when it’s really a close case for custody and what kind of parenting plan there’s going to be. Clients must know what the realistic expectations are and what kind of strategies they may have to try to maximize their chances in a custody case.

What is a custody study and when would someone need to have one?

A custody study is a way for a neutral evaluator to meet with the entire family and other contacts and professionals to do an investigation into what would be in the children’s best interest in a parenting plan. For instance, an evaluator could be a psychologist or a licensed social worker. That psychologist is an expert, and that expert would meet with each parent, meet with the children, talk to teachers and other professions, friends, family, and make a recommendation about which parent should have custody and what the parenting plan would be for the children.

How do you pick a good custody evaluator? What questions should you ask?

In Oregon, family law attorneys have a small handful of evaluators that are used over and over again. These evaluators know that in order to get an attorney’s business, they have to be fair, even-handed, and they can’t be biased.

Because there are not enough evaluators, evaluations can take a long time because evaluators are so backed up. Family law attorneys talk to each other and think about the last time they used that evaluator. Did it seem like that person had any biases towards moms and dads, did they like private schools or public schools, do they like 50/50 parenting plans or do they like one parent to have more time, do they have problems with marijuana use? Attorneys kind of keep a list in their minds of the things they found out about these different evaluators. Then when it’s time to pick one, they try to pick one that they think is going to be best for the particular case and client. A lot of times it’s just their instincts as family law attorneys and with what they know about the evaluators.

What people should a parent ask to write letters or talk with a custody evaluator on their behalf?

When a custody evaluator is chosen and the client starts the process of a custody study, the attorney tries to have a few meetings with the client before they meet with the evaluator where they just sort of prepare them and pump them up about going through the evaluation process. The parent must paint a picture for the evaluator of how they take care of their children – a day in the life, really let the evaluator hear about how close the client is bonded to the children and what kinds of things he or she does to take care of them on a daily basis.

In terms of people that would be writing letters or talking with the custody evaluator, clients should pick neutral people. If it’s your mom, dad, or sister, those people are biased towards you and they’re not going to have as much weight as somebody like the basketball coach, teacher, neighbour who was neighbour with both of you, or long-time friend who was friends with both of you. Those people, if they’re going to side with you and say really good things about you and/or negative things about the other parent, they’re going to be much more impactful because they’re not your best friend or your mom or your dad, they’re a neutral person.

When would you need to appoint an attorney for the children?

That’s a very unique issue attorneys for children have more and more these days. A court in Oregon is required to appoint an attorney for a child during their parents’ divorce if the child writes a letter and requests an attorney. It’s mandatory in that case.

In other cases, if one parent asks for an attorney for the children, then the judge has the discretion to decide whether or not to appoint one, and oftentimes the judge sees how difficult it is for these two parents and then will just appoint an attorney for the children just because the judge thought it would be helpful in the case.

An attorney for the children meets with the children and talks to them. The attorney shouldn’t try to push them into saying who they want to live with and what kind of parenting plan they want, especially if they’re little kids, and instead should find out about them, kind of hear stories, kind of ask them how they’re feeling about the parenting plan if their parents are already separated. Do they feel like they get to see Mom and Dad enough?

Think about whether or not there is anything you want your attorney to tell the judge. That’s what an attorney can be, a voice for the children. That’s why sometimes they’re very important and valuable in a custody case, to have the judge hear about from their own attorney what they’re thinking and how they’re doing. Children clients, almost in every case, wish Mom and Dad would stop fighting so much. That’s what kids have to say a lot of the time.

Is it possible to settle a child custody dispute without a trial?

It’s very possible, especially when you have a custody study, because when you have a custody study, the evaluator has taken, typically on a good day, four months to get the evaluation completed. On a bad day, it can take much longer than that because the evaluator is so booked up that things go much slower than expected. In any event, the evaluator has done an in-depth look into the family. Sometimes the evaluator has done psychological testing on the parent, the evaluator has typically met with each parent separately for several sessions and heard everything about the family and the children that that parent wanted the evaluator to know.

The evaluator sometimes goes to the home of each parent and watches the parent interact with their children in the home. Other times the children come to the evaluator’s office and the evaluator watches the children interacting with each of their parents in the evaluator’s office. Then the evaluator will talk to the children separately in private and then, of course, talk to all the third parties.

With all of that information, the evaluator will make a recommendation, and because courts listen to those recommendations so strongly and are almost always going to follow the recommendation of a custody evaluator, most times that will settle the case. Whatever the evaluator says is the recommendation, the parents normally are going to agree with that recommendation and settle their case and not go to trial.

What steps does an attorney take to prepare clients for trial?

Sometimes the attorney decides to go straight to a trial and not have a custody evaluation. Custody studies can be very expensive, and sometimes clients can’t afford to pay for a custody study and would just rather try to go to trial without one. The thing that you’re missing when you don’t have a custody study or a trial attorney is, it’s very hard to get in the voice of the child that way unless the child is actually in the courtroom.

What you do is you kind of put together the same case that you’re making because you’re kind of making a case to the custody evaluator. You’re bringing in the people that would have written to the evaluator or talked to the evaluator, or you’re bringing them directly to court. You’re preparing your client to tell the judge all of the things that a client would have told the evaluator in a custody study and just trying to present to the judge all the strongest witnesses and the strongest testimony from your client to prove to the judge that your client should have custody and the parenting plan that you’re recommending.

What kind of witnesses should a parent suing for custody have at trial?

Sometimes there are lots of witnesses. An attorney will interview the witnesses. Sometimes the witness seems like they’re going to be just a great witness, but then when the attorney interviews the person, you may not get as much information out of them that your client thought they would get. Or you might find that one witness is really good and sounds very good when they’re talking, so they would be a good witness on the stand. Another witness just doesn’t talk that much and doesn’t provide a lot of information, and it’s like pulling teeth.

An attorney will often just interview the witnesses and decide which ones would be the best ones to have at the trial. Typically, you can’t have a trial last forever; it has an ending. It’s typically a day long, maybe a couple of days. The judge is going to be wanting you to make your case and get it done as quickly as possible, so the attorney has to pick the very best witnesses, the most neutral witnesses, and the ones that have the most important evidence that’s going to help a client win whatever position the client’s taking in terms of a parenting plan and custody.

How does the court decide who gets primary parenting rights if both parents want it?

The court is required to determine one parent – a custodial parent in Oregon or a primary residential parent in Washington. A lot of times parties can agree to do what’s called “joint custody” or “joint residential parents”. That is only when the parties agree. If they will not agree to joint custody, then the judge has to decide one or the other, and there are a lot of factors in our statutes that go into determining which parent will win. The witnesses are proving to the judge certain factors – such as one of the factors would be, which parent was the primary parent while they were still married? That’s one of the big factors in getting custody.

You would bring in witnesses to say this person was always at home with the children, the other person wasn’t as home as much, and try to describe to prove that one parent was the primary parent. Another factor would be, which parent is most likely to encourage and assist the children in having a good relationship with their other parent? You would be bringing witnesses in and/or your client would be testifying that the other parent was refusing to let the kids see the parent, was making it very difficult for that parent, was saying negative things about that parent to the children. That would be helping to prove this parent is not the kind of parent that’s going to facilitate the relationship with the other parent, which is another one of the factors in determining custody.

The judge has to look at a whole list of different factors when he or she is deciding what is in the best interest of the children. That’s what the judge has to do, is decide what’s in their best interest when determining which parent will be awarded custody.

What weight will a judge give the children’s stated preference regarding custody?

The children’s stated preferences are always given weight by the judge, and that can come in a variety of different ways. It can come in the custody study; the evaluator would have talked to the children and will be able to state what the children’s preferences are. If there’s an attorney for the children, that attorney would be able to state a preference that they may have perceived after talking to the children and, in a rare case, a child might come to court and state their preference.

The judge is the final decision maker; the child doesn’t get to choose what custody will be or what the parenting plan will be. A child gets to choose when they’re 18, and that’s when they’re out of the jurisdiction of the court and they’re adults.

Obviously, if a 10-year-old has a preference, it’s going to be taken into account. If it’s a 16-year-old who has a preference, it’s going to be taken very strongly into account, because common sense will tell you that a 16-year-old, if he doesn’t want to be with one or the other parent, he’s not going to go, and it’s very difficult to make a 16-year-old go when he doesn’t want to go, and judges know that. The older the child is, the more likely the judge is going to lean in the favor of that child.