The father's custody case.

Custody is no longer automatically awarded to the mother. Fathers, too, can prove they will act in their children best interests.

Until about 25 years ago, custody of a divorcing couple's children was awarded by statute to the mother. The "tender years doctrine," a tenet of family law for more than 100 years, required that young children (of tender years) remain with their mothers after divorce.

The basis for this mandate was the widely held belief that women were more "naturally suited" to parenthood than men. In the early 1970s, a political commitment to racial and gender equality forced repeal of the tender years doctrine. New laws across the United States declared that "the best interests of the children" must be the primary consideration in custody decisions.

But the overt gender bias inherent in the doctrine has survived. A father's attorney must often convince the client that the case is winnable. Too often, a father fails to inform his attorney of relevant facts that could win a custody case, simply because he accepts as a foregone conclusion that custody always goes to Mom.

It is imperative to advise the client that times have changed. One of the most significant developments in family law over the past two decades has been the elimination of the maternal preference in custody decisions. More and more, fathers are fighting for custody--and winning.

Despite the emotional chaos and legal wrangling that surround him, a divorcing father must find the time and energy to maintain or strengthen his relationship with his children. The quality and depth of this bond are important. Evidence that a strong link exists between a father and his children carries significant weight in family court proceedings and in settlement discussions.

A divorcing father may also need to provide evidence that he can perform duties that are often presumed to be a mother's exclusive domain.

The following summary, compiled from experience and discussions with family law judges and practitioners, lists parental attributes, behaviors, and attitudes that have influenced family court evaluations of parental competence.

To be recognized as a good parent, a father is expected to

* exhibit genuine love and concern for his children;

* take an active interest in the children's physical, social, emotional, and academic developments;

* arrange regular visits to doctors and dentists;

* attend the children's athletic events, music and dance recitals, school plays, debates, science fairs, and so on;

* meet with the children's teachers regularly;

* impose and enforce (but not with corporal punishment) reasonable rules of behavior;

* shop for the children's food and clothing;

* foster church or synagogue attendance and moral development;

* ensure the children are bathed and properly dressed;

* help with homework and with school projects;

* assist the children in solving problems; and

* encourage and support the children's creative tendencies.(1)

Regardless of overall parenting capabilities, a father will generally be judged unfit if he

* abuses drugs, alcohol, women, or children;

* gambles compulsively;

* exhibits violent tendencies;

* exhibits symptoms of mental illness;

* neglects the safety, nutrition, or educational needs of his children; or

* interferes with the children's relationship with their mother.(2)

The strategy for a divorcing father seems obvious. If the client has been hovering at the edges of his children's lives, it is time for him to become an active participant. He should meet his children's friends and the friends' parents. He should take the children on bike rides, to the zoo, to ball games, to the theater, and to the library. He should spend quiet time with his children, read to and with them, talk to them, and be a good listener.

The mother's counsel in these cases still holds a significant advantage. All things being equal, most attorneys believe that a mother is more likely to win custody. You may be able to convert your opponent's presumption into a real advantage at trial.

If you can convince your client to adhere to some basic "dos and don'ts," he may dramatically improve his chances of winning. If the opposition presumes custody will be conceded or awarded to the mother, take advantage of the situation.

Advise the client to watch for the mother's missteps that can provide helpful evidence later at trial: incidents of corporal punishment, negative comments about the father made in front of the children, lapses in parenting competency, and incidents of neglect.

At trial, it can be frustrating if the father knows the mother has engaged in activities that would be enlightening to the court, but he cannot specifically recall the circumstances surrounding the behavior. Therefore, advise the client to keep reports of these incidents to refresh his memory.

Tell the client not to refer to these reports as his "diary." In many jurisdictions, diaries are subject to discovery.(3) However, reports and memoranda that a client prepares for an attorney should be privileged. Your client should turn over his reports to you on a periodic basis. You will then be able to help him narrow or expand the scope of information as the case demands.

Perhaps most important, stress that once the custody issue comes to the forefront of the litigation, the client will be in the spotlight. The mother and her attorney will relentlessly search for even the slightest meritorious ground on which to ask a judge for temporary exclusive possession of the house and custody of the children. If a judge accedes to the mother's request, this will establish her as the de facto custodial parent. Help your client understand how to be vigilant against any development that could alter the status quo.

Pre-trial conduct

Perhaps the greatest mistake fathers make during a pending divorce action is to leave the family home. Whether this is in frustration or anger or in response to the mother's request for "more time and space to think things through," devastating consequences can result.

Separation of the children and father must be avoided. The evidence at trial will show him to be a father who turned his back on his children. Once out of the home, he will face great difficulties getting back in. He will have established a status quo in which the litigants are separated.

Instead of being with his children on a daily basis, he will likely be forced to abide by a visitation schedule. Also, the client will probably be paying support and making mortgage payments on a home he no longer lives in.

Often, mothers will use ex parte orders of protection to obtain tactical advantage. The client must know how to handle disputes. He must understand that any violence or the implication of violence, even defensive in nature, will severely undermine his case.

Violent behavior usually results in an order of protection, giving the mother temporary possession of the children and even exclusive possession of the family home.(4) Fighting the protection order will tax the client's resources and will place the client's case in a defensive, rather than offensive, position.

Whether he is living in the home or elsewhere, the father should establish a rapport with his children's teachers, school principals, doctors, dentists, clergy, babysitters, coaches, and activity leaders. He should inform them that a divorce case is pending and ask them to observe and note any changes in the children's behavior and/or habits.

The father should periodically discuss the children's behavior and attitudes with these people, and he should ask them how he can get more involved. They can provide helpful testimony at trial if the mother is less involved than the father in the children's lives. If the mother is involved, the father's regular contact with these people may neutralize any favorable testimony they give for her.

It may be beneficial for the children to begin seeing a mental health professional to help with emotional adjustment. In addition, if a therapist is engaged early enough, he or she may be able to assist the court in any temporary custody proceeding by making recommendations based on observations about the children's concerns, school, and social involvement.

The client must have a plan showing how he can care for the children 24 hours a day, every day. Who will get the children up, feed them, get them to school, watch them after school, help with homework, and do the shopping, cooking, and laundry? Do not let the father take the stand unless he can explain, minute by minute, how he and the children can get through a week without the mother's help.

The old adage "a picture is worth a thousand words" still applies. In a custody case, a picture of a father and his child is worth even more. Advise the client to take photographs of himself and his children during the litigation--at neighborhood birthday parties, baseball games with friends, visits with extended family, holidays, and other events. Older photographs and videos showing his ongoing participation in child-rearing are also helpful.

Pictures that include the children's friends may demonstrate the father's involvement in the children's social life. A picture that includes the parents of those friends may help develop those parents as credible witnesses or may undercut damaging testimony from them.

Discovery

Written discovery should be conducted early. Request the identity of each expert the mother intends to call as well as the names, addresses, and extent of knowledge of everyone able to testify to each party's parenting skills. An aggressive and strategic discovery campaign may severely restrict the mother's opportunity to raise frivolous allegations and may undermine any allegations brought later.

The mother's deposition is often critical. If taken early enough, it may head off false allegations of child or spousal abuse. If the mother commits to a particular set of facts early on, her later allegations must account for the prior inconsistent statement. Developing these committed statements takes time, however, so plan on taking a long, arduous deposition.

Any positive statement by the mother about the father or his family may be useful at trial. Simple statements that the children enjoy being with their father or thrive on his attention are crucial.

Pursue questions about the paternal grandparents. If the children enjoy visiting the father's parents on a continuing basis, there is possible evidence of a close-knit family unit on which the children and father can rely for emotional support and nurturing.

A request to produce should also be sent early in the case. Do not overlook the obvious: the children's school and medical records, the mother's canceled checks and telephone records. Obtain the mother's medical history and examine records carefully to determine if her mental health might be an issue. Although these records often are considered privileged and beyond discovery, by seeking custody, the mother has put her mental health at issue.

The mother's personnel file from her employer may reveal traits that might affect her parenting ability, such as absences, late days, or evidence of a substance abuse problem.

Home study

Most courts will order a court-supervised social worker to examine the parties' homes, interview the parties with the children, and submit a report to the court containing a recommendation as to custody. Because the court will confer a great deal of authority on the report, the father's counsel must take every possible step to learn of the social worker's background and biases. This information may help to impeach credibility or show gender bias.

If possible, help the client complete any questionnaire provided by the home study reporter. Tell the client to clean the house before the home interview. He and the children should be neat and clean and appear relaxed. The reporter expects the client to be on his best behavior. If your client fails to live up to these expectations, even the slightest blemish can be magnified into a health concern.

Have the client set aside adequate time for the interview. If the children are rushing off to an after-school activity, the father will not have as great an opportunity to exhibit his close relationship with them.

Mental health experts

As a general rule, do not take a custody case to trial without a mental health expert witness. Obtain psychiatric or psychological evaluations of the mother, father, and children well before trial. You should assume your opponent will do the same. When custody and visitation are disputed, the psychological makeup of the parents is an issue.

Testimony about the mental health of the parties and their abilities to support and nurture the children emotionally is often vital to the case. Take time to prepare and present the evidence in the best possible manner. It is not enough simply to hire a mental health expert to examine the parties and prepare a report.

Verify that the experts in the case are licensed, preferably in your jurisdiction. It sounds obvious, but many divorce practitioners do not bother with this simple detail. Also verify that the experts are experienced with custody cases. Many experts will tell you off the record that they did not begin feeling comfortable until they had performed at least 75 evaluations.

Even experts make mistakes. Depose the mother's expert. Have him or her explain the methodology of the interview processes used and the theory behind each test given. Ask the expert what each test result says about the mother/child relationship and the mother's ability to provide adequate parenting skills. Look for any evidence of gender bias on the part of the mother's expert.

If possible, have the father's interview with the opposition's expert videotaped, or at least have a court reporter present. Clients often deny having made certain statements in the opposing expert's report. Even if the client has made a harmful statement, the interview transcript can help place it in its proper context.

Whenever possible, have the client bring the children to his interview. There is a great psychological advantage in having the father see his children before he meets with the expert.

The trial

Each trial takes on a life of its own. If you have taken adequate discovery and the client has properly conducted himself, you should be prepared for the custody issue. Go slowly and surely. The mother's counsel may make many mistakes with no ill effect, but the father's counsel cannot afford to make even one. Appeals in custody matters seldom result in reversal because the firsthand impressions and observations of the trier of fact are given great deference.

Remind the client that custody litigation is like no other part of his divorce case--lives really do hang in the balance. The father should reflect this sobering reality and understand the emotional aspects of the case. He must, of course, be neat, clean, and polite. In summary, he must appear to be the perfect parent.

If the client loses the custody dispute, remind him that he has not lost his parental rights. Before the custody judgment is finalized, a specific visitation schedule should be submitted to the court. Avoid using the term "reasonable visitation" in lieu of setting up a specific schedule. The definition of reasonable visitation varies, depending on who is asked, and it almost always results in conflict, confusion, and renewed litigation.

Generally, a typical court-ordered visitation schedule allows a father to see his children on alternating weekends, one evening during the week if it is geographically feasible, on alternating holidays, and for four to eight weeks each summer. Additionally, a noncustodial father should have frequent telephone communication with his children.

Usually, the custodial parent is required to immediately notify the noncustodial parent of any medical emergencies involving the children. The noncustodial parent should also have access to the children's grades and other educational information.

Advise the client that it will be up to him to make a concerted, consistent effort to keep his rightful place in his children's lives. He should try to restructure his work, vacation, and social schedules to accommodate his children's visits. These visits should be as much like the family life the father and children shared before the divorce as possible.

Until truth, justice, compassion, and common sense prevail consistently, a father seeking custody of his children must plan carefully, negotiate skillfully, and fight fiercely to preserve his natural rights and constitutionally guaranteed freedoms.

Notes

(1.) See, e.g., In re Marriage of Ramer, 405 N.E.2d 401, 403 (Ill. App. Ct. 1980): In re Marriage of Quindry, 585 N.E.2d 1312, 1314 (Ill. App. Ct. 1992).

(2.) See In re Marriage of Wiley, 556 N.E.2d 809, 813-14 (Ill. App. Ct. 1990); In re Marriage of Soraparu, 498 N.E.2d 565, 569-70 (Ill. App. Ct. 1986): In re Custody of Williams, 432 N.E.2d 375 (Ill. App. Ct. 1982).

(3.) See, e.g., Johnson v. Frontier Ford, Inc., 386 N.E.2d 112 (Ill. App. Ct. 1979}.

(4.) See In re Marriage of Blitstein, 569 N.E.2d 1357 (Ill. App. Ct. 1991).

RELATED ARTICLE: `Keep Our Families Safe' Web site launched

ATLA President Mark Mandell's "Keep Our Families Safe" initiative has expanded to the Internet.

By logging onto http://familysafety. atla.org., Internet users can access information on family safety news, receive e-mail on related issues, and share pertinent case stories.

Mandell developed the idea to provide parents, children, and other concerned individuals with information about issues affecting the lives and safety of those they love.

"Protecting the health, safety, and well-being of our families is among ATLA's top priorities," explained Mandell. "We bear no greater responsibility than that which we owe our children to educate them fairly, to raise them wisely, and to protect them physically. The `Keep Our Families Safe' Internet site will help us achieve this important goal."

The newest ATLA Web page, launched in November, is dedicated to presenting helpful consumer news and safety tips, as well as to providing a forum where visitors can exchange information. The site is being maintained separately from ATLA's official ATLA NET Web page (http://www.atlanet.org), which continues to focus on legislative, judicial, and related topics affecting members and their clients.

Several cases that have made families safer appear on the "Keep Our Families Safe" Web site, such as the stories of five-year-old Valerie Lakey of Raleigh, North Carolina, and Richland, Oregon, resident Steven Sharp. Both suffered severe injuries because manufacturers either failed to properly warn customers about safely installing a product or failed to install a safely mechanism.

When Valerie sat on an uncovered drain in a North Carolina public swimming pool, she was sucked onto the opening and became trapped. Although she survived the accident, she lost most of her intestines. Valerie now spends 14 hours a day hooked to tubes that supply the nutrition she needs to live.

Her parents, David and Sandy Lakey, learned, with their attorney's help, that the manufacturer never warned customers that the pool's drain cover needed to be screwed into place. The company also knew of other children killed or injured by suction entrapment but never took steps to prevent this danger. In fact, a 2-cent design modification could have prevented these accidents.

In another case reported on the page, Steven Sharp lost both arms because the manufacturer of the tractor he was operating didn't install a 70-cent part.

In addition to case histories, this new page includes features like these:

* "What's New" provides visitors with a short synopsis of the latest family safety news.

* "Mark's Column," a weekly commentary written by Mandell, offers consumer information on topics ranging from toy safety to health care.

* "Links" takes visitors to site with similar themes.

For more information about the new Web site and how you can help, call ATLA at [phone], ext. 334, or send an e-mail message to carlton.carl @atlahq.org.

Jeffrey M. Leving, a Chicago attorney, is author of Fathers' Rights (Basic Books 1997). Caryn M. Kenik practices in the Law Office of Jeffrey M. Leving. This article is an updated version of a paper originally presented at ATLA's 1995 annual convention.