TRYING A CUSTODY CASE TO THE BENCH PRACTICAL POINTERS

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1 TRYING A CUSTODY CASE TO THE BENCH PRACTICAL POINTERS Judge Larry Noll 408th District Court 100 Dolo rosa San Antonio, Texas (210) St. Mary's University Law_ School Homecoming CLE San Antonio, Texas March 12, 2010

2 LARRY NOLL DISTRICT JUDGE 408TH DISTRICT COURT Bexar County Courthouse 100 Dolo rosa San Antonio, Texas Phone: (210) / Fax: (210) Board Certified, Residential Real Estate Law Family Law Texas Board of Legal Specialization lno11c(])bexar.org Schools Attended St. John Berchmans ( ); HolyGoss High School ( ); St. Mary's University ( ) Undergraduate BA; St. Mary's University Law School ( ) J.D. San Antonio, Texas Legal Activities Licensed April 17, 1973; Member, American Bar Association, Texas Bar Association, San Antonio Family Lawyers Association, San Antonio Bar Association; Mexican American Bar Association; Former Director and Secretary of San Antonio Young Lawyers Association ( ); dlairman, Young Lawyers Drug Abuse Education Program (1976); Member, Fee Dispute Committee, San Antonio Bar Association ( ); Chairman, Fee Dispute Committee, San Antonio Bar Association ( ); Graduate of Court Practice Institute of Chicago, Illinois (1976); Director, San Antonio Bar Association ( ); Secretary, San Antonio Bar Association ( ); VicePresident, San Antonio Bar Association ( ; ); President, San Antonio Bar Association ( ); Admitted to Practice in U.S. District Court, (Western District of Texas); Arbitrator, U.S. District Court (Western District of Texas) (1986 to 1994); Board Certified Family Law and Residential Real Estate Law Texas Board of Legal Specialization; Director, San Antonio Family Lawyers Association ( ); Fellow, Texas Bar Foundation (1982 to present); Fellow, San Antonio Bar Foundation (1988 to present); Justice of the Peace, Precinct 2, Place 1, Bexar County, Texas ( ). Adjunct Professor, St. Mary's University Domestic Relations/Family Law (1988 to present); Member, State Bar College (1987 to present): Municipal Judge, Leon Valley (1987 to. 1997); Member, State Bar of Texas Grievance Committee Professional Enhancement Program (1998 to 2003); Member, Texas Supreme Court Committee on Professionalism (1989); Member, San Antonio Bar Association Family Law Section (1995 to present); Member, San Antonio Trial Lawyers Association (1990 to 2001); Member, San Antonio Family Lawyers Association (Board Certified 1980present); Board of Directors, San Antonio Bar Association Family Law Section (2002 to present); Member, San Antonio Bar Foundation Board of Trustees (2002 to present); Super Lawyer by Super Lawyers (2003 & 2004), a Texas Monthly publication; Democratic Party Nominee for election to 40gth District Court of Bexar County (2006); Voted San Antonio's Best Lawyers in Real Estate and Family Law, Scene in SA Monthly Magazine (August 2006); Elected November 7, 2006 as 408rh District Court Judge, Bexar County, Texas; Judge, 408th District Court, Bexar County, Texas (2007).

3 Other Activities Director, St. Mary's University Alumni Association ( ); VicePresident, St. Mary's University Alumni Association ( ); Presidentelect, St. Mary's University Alumni ( ); President, St. Mary's University Alumni Association ( ); Vice President, St. Mary's University Athletic Association ( ); President, St. Mary's Athletic Association ( ); President, Holy Ooss Center (a nonprofit organization) (1984 to 1992); President, Holy Cross Community Services of Texas ( ); Vice President, Board of Trustees, Holy Cross High School ( ); President, Board of Trustees, Holy Cross High School ( ); Board of Directors, American Cancer Society ( ); Board of Directors, Catholic Cable 1V of San Antonio ( ); Board of Directors, San Antonio Library Foundation ( ); Leadership San Antonio (1985); St. Mary's University Athletic Hall of Fame (1991); Holy Cross High School Hall of Fame (1999); Distinguished Alumnus, St. Mary's University (2000); Archdiocese of San Antonio 2004 Catholic Schools Hall of Fame Award; 1sr Vice President, Holy Cross O:>mmunity Services of Texas, Inc. (2003); Doctoral Achievement Award West San Antonio Cllamber of Commerce (2004).

4 I. INTRODUCTION TABLE OF CONTENTS A. Holley vs. Adams factors B. Desires of the child I C. Present and future physical and emotional needs of the child... 1 D. Present and future emotional and physical danger of the child E. Personal abilities of the person(s) seeking custody F. Available assistance programs G. Plans for the child by those individuals or by the agency seeking custody... 3 H. Instability of home or referral placement I. Acts or admission of a parent J. Any excuses for the act of admissions of a parent II. PICTURE OF THE CHILD OR CHILDREN III. CHILD OVER TWELVE (12)EXPRESSING PREFERENCE....4 IV. LET THE JUDGE SEE THE EVIDENCE V. BRING PLEADINGS TO THE COURT/HAVE YOUR DISCOVERY WITH YOU VI. TWO LAWSUITS IN ONE VII. PREMARK EXHIBITS VIII. REQUESTS FOR DISCLOSURE IX. SOCIAL STIJDY UPDATE IT X. EVIDENCE THAT PREDATES ORDER TO BE MODIFIED... 6 XL HIGH CONFLICT MERITS JMC? XII. CIVIL DISTRICT JUDGES CUSTODY SURVEY... (see appendix)... 6 XIII. CONCLUSION

5 Trying A Custody Case to the Bench Practical Pointers I. INTRODUCTION More and more, district judges in Bexar County are seeing an increase in the number of cases being tried to the bench involving custody. Actually, it is the right to determine primary residence of the child or children. The following tips are not intended to be exclusive but are meant to be tips from the author as to his experience with these types of cases. There are 13 Civil District Judges in Bexar County, soon to be.14, and every judge has somewhat of a different take on what evidence he or she wants to hear in resolving the issue of right to determine primary residence. With that in mind, I submit my practical pointers to assist you in trying custody cases before the bench. Later, I will present some of my colleague's pointers. Hopefully, this will help you draw your own conclusions as to what does and does not work in this important area in bench trials in the Courts of Bexar County in the custody area before the bench. A. Holley vs. Adams factors; 544SW2nd 367 (Tex. 1976). Even though this was a termination case, the Holley factors are commonly known as the starting point when you are dealing with custody issues before the bench. I always wonder if counsel has read Holley or knows of the Holley factors. Assuming that reiteration of those factors is a review and not new startling news, I for one like to see counsel develop the Holley factors in these cases. What are these factors? B. Desires of the child. Efforts should be made to determine wishes of the child even though not case determinative. My three year old granddaughter is equipped at her young age to make her feelings known. I am not advocating that a three year old be listened to but to get the point, some children are more equipped than others to express themselves and some attempt to determine their desires should be done. Although, as I said this desire is not case determinative, it is a factor to take into consideration particularly if the child is 12 or older or close to being 12. Caution has to be acknowledged because according to the best interest standard, a choice made by a child that is not in that child's best interest will rarely be granted. A child's choice is only one factor. Maturity of the child and absence of undue influence have to be proven to me to even consider choice before looking at best interest. C. Present and future physical and emotional needs of the child. Children need permanency and security; health care concerns have to be accounted for. For instance a child that is an autistic child, diabetic, or has ADD problems present real concerns. Failure to present evidence fully developing these areas for a child's well being is a disservice to the client and the child as well as the court. Dietary concerns for a grossly overweight child should never be overlooked or down played. The needs of a gifted child as well as a talented child should be addressed. Problems dealing with sleepwalking, bedwetting, nightmares, antisocial behavior, need to be addressed. D. Present and future emotional and physical danger to the child. Child abuse by the parent(s) of the child has to be related to the court. A parent's trouble with the law and/or, evidence 1

6 Trying A Custody Case to the Bench Practical Pointers of negligent supervision of the child or children needs to be related to the court. E. Parental abilities of the person(s) seeking custody. Evidence has to be developed that shows which parent is able to provide a safe and secure home for his or her child or children. The appropriateness of placement with a parent can not be overlooked. What kind of parenting abilities has either of the parents shown in the past? Were both parents involved in the feeding, bathing, clothing and caring for the child? Did either or both parents follow up on recommendations from a physician as to the need for eye glasses, dental work, neurological exam, dyslexia examination, changes in diet, tutoring programs, proper administration of medications, or any other evidence that shows action or lack of it in caring for a child with special needs. both parents explored with the local school district or the school that the child is attending to discuss this with counselors, teachers and administration to determine recommendations for improvement or alteration of disruptive behavior? If the child is musically inclined or artistically inclined, what efforts have the parents made to assist the child in furthering these talents? G. Plans for the child by those individuals or by the agency seeking custody. What plans have either parent developed assuming the child will live with dad or mom regarding the child's future? What school will the child attend; what extracurricular activities will the child be involved in; if medical intervention is needed in the future, what plans has either parent come up with to deal with future medical including dental, optical and hearing? F. Available assistance programs. Has either parent or both parents attended any parenting classes, obtained counseling to assist each other in dealing with the other or in dealing with the child or children whether or not they have special needs in this area? If the child has a special need such as in remedying reading difficulties or in rectifying a lack of proper social behavior, what have the parents done or failed to do with regard to obtaining assistance for the child? If the child is gifted and talented, is the child in AP classes and if not, why not? If the child is an extremely bright child, why is the child failing in school and becoming a discipline problem at school and home? What efforts have either or H. Instability of home or referral placement. How many homes have the parent or parents had in the last 3 to 5 years? What are the present living arrangements and how long have they been in place, or what are the intentions to change them in the very near future? Five different homes in four ( 4) years is not a good sign. I. Acts or admissions of a parent. Leaving a child unattended for periods of time, use nonprescription drugs as well as abuse of prescription drugs over time; evidence of drug addiction, alcohol addiction, smoking addiction; evidence of trouble with the law such as shoplifting, hot check writing, DWI, and DUI have to be related to 2

7 Trying A Custody Case to the Bench Practical Pointers the court. Failure to exercise visitation allowed by prior court order; failure to provide for medical insurance as previously ordered, failure to support a child according to one's abilities, and a series of broken promises to a child or children by a parent are important for assessment purposes. J. Any excuses for the act or admissions of a parent. Evidence needs to be presented that shows that one parent attempted to correct the other parent's activities especially the use of drugs or properly taking care of himself or herself when in ill health. One should develop evidence sufficient to show why they could not pay child support; why they did not visit; why they did not prevent another parent from the use of drugs, alcohol or smoking after learning that the other parent became pregnant. The Holley factors are certainly not the only factors for the court to take into consideration, but if one is to try a case and be successful in front of the bench one must know the Holley factors and present evidence on the foregoing or develop that there is a lack of evidence on the foregoing for the person claiming to have grounds for modification or original custody determination. I. PICTURE OF THE CHILD OR CHILDREN. The old adage that "pictures are worth a thousand words" is definitely true in trial to the bench regarding the right to determine the primary residence. Time and time again I hear cases where the parties discuss the child at issue. In jury trials the parties seem to always have a 3 II. picture of the child or children, but in a bench trial that is not always the case. I am always suspect when parties say they care so much for their child or children and want them but can't or don't produce a photograph. It is very telling when one is not produced. A plethora of cameras available nowadays makes a failure to produce a photograph inexcusable. Pictures should also exist with the parent and child or children. Show the child with your client on vacation, Thanksgiving, Christmas, spring break, summer, backyard parties, at a sporting event, church event. Pictures show involvement; don't overlook that! CHILD OVER TWELVE (12) EXPRESSING PREFERENCE. More and more there are motions for the court to interview the child in chambers. All of the judges, without exception, do not want child(ren) brought to the courthouse during school hours for this purpose. If there is going to be an interview of the child in chambers it needs to take place after school is out so the child misses no school. A better procedure would be to arrange for an interview with the Domestic Relations Officer for the county at a time after school is out for the express purpose of determining the maturity of the child to make the preference and secondly to determine whether the child has been promised anything for his or her choice. The Bexar County Domestic Relations Officer can not be called as a witness in such instance; the DRO is merely a fact finder to assist the court in determining the maturity and lack of influence exercised upon the child. The results of the interview with the

8 Trying A Custody Case to the Bench Practical Pointers III. IV. Domestic Relations Officer are shared with counsel in chambers. Once the information about the maturity of the child to express a preference and lack of pressure or influence by a parent is resolved, then the court examines the child m chambers to determine preference. LET THE JUDGE SEE THE EVIDENCE. Time and time again, parties m bench trials that are successful admitting evidence leave it in a place it can not be reviewed easily by the court. It is either left on the rail or counsel table or on the witness stand and not given to the judge for revtew. It is far better to review the evidence as the case moves along just as evidence is published to the jury once it is admitted. Once the case is concluded; unless the court takes the case under advisement, the ruling is forthcoming. If evidence has been reviewed during the trial it insures that the evidence has been considered in the final ruling. The courts are interested in reading the s, looking at the My Space page or the Face Book page to determine if what counsel considers important is really that important. Let the judges see the evidence and just don't give us stacks at the end of the case. BRING PLEADINGS TO COURT/HAVE YOUR DISCOVERY WITH YOU. Don't assume our present system is going to have all the pleadings at the time you need them. At the very least, bring the latest pleadings and order for the court to revtew. Make sure you have your discovery request with you in case the court wants to review the discovery when an issue comes up about v. VI. admissibility or production of evidence. Don't assume that the computers are always going to be prepared to print out a copy of the social study or custody evaluation done by mental health providers. Bring a copy with you to court in the event it can't be printed off the system maintained by the District Clerk. The Rules of Civil Procedure Apply To Family Law Cases. There is no a family law exception for failing to answer interrogatories, request for productions or request for disclosure. Supplementation of discovery ts absolutely essential. There ts no family law exception for failure to supplement. Failure to disclose yourself as expert witness on legal fees is one sure way to make sure you don't get paid if you win. Don't close without putting on your attorney's fees. TWO LAWSUITS IN ONE. The clients fighting over the right to determine primary residence is bad enough. Lawyers fighting each other because of personality conflicts means there are two lawsuits going on at once. You can't maintain your objectivity and represent your client when you get mired in a personal attack on the other counsel. Side bar remarks directed at counsel and their failings or short conungs are unprofessional. Comments such as "no he didn't" or "that's a lie" serve no purpose and are unprofessional interruptions to the court proceedings. PREMARK EXHIBITS. Preparation for a custody case before the bench is gomg to entail introduction of evidence in the form of exhibits. Premarking exhibits and preexchanging 4

9 Trying A Custody Case to the Bench Practical Pointers exhibits will increase the effectiveness of the presentation to the court and keep the court from being bogged down in this area. This whole process can be a great time saver plus it should be a help to the parties in evaluating their case to be presented. Granted, we don't like to play our hand when going to trial but remember trial by ambush is a thing of the past. VII. REQUEST FOR DISCLOSURE. Using this pretrial discovery tool should be an absolute must. Also, don't forget to supplement and update and follow the rules in regard to deadlines. Disclosure of persons with relevant facts and people who are intended to be called who have specialized knowledge "psychologist, psychiatrist, social workers" need to be disclosed if you intend to have them testify. The Rules of Civil Procedure Apply To Family Law Cases. VIII. SOCIAL STUDYUPDATE IT! Make sure the court has a copy of the social study or custody evaluation if there IS one. Don't count on the court being able to bring it up on the computer. Bring the hard copy with you to make sure the court has it. It is sometimes cumbersome to try and print the report off of the district court's computer system and what if the system is down. Secondly, check the date on the social study or custody evaluation. Has it been updated? What's the date on the original report? Has there been any significant thing happen since the date of the last report? The whole process may be stymied when parties are relying on a social study or custody evaluation that is a year old and no effort has been 5 made to provide the exammer new information that may or may not change his or her recommendations. IX. EVIDENCE THAT PREDATES ORDER TO BE MODIFIED. Time and time again an effort is made to go behind the last order. Remember, that in a modification, activity is measured from the date of the last order. Objection should and usually does prevent discussing matters that predate the last order. There are exceptions to this general rule but for the most part any objections are going to be sustained when evidence is attempted to be produced that predate the last order. X. HIGH CONFLICT MERITS JMC? It is always amazing to me when the parties are asked if are there any agreements that the parties have reached or stipulations that the parties have entered into and their response is that "we have agreed upon joint managing conservatorship," but can't agree on who is to determine the primary residence under this joint managing conservatorship. As the case unfolds and develops it becomes apparent that this a high conflict case where the two (2) parents have never been able to get along, continue to battle, have taken each other to court for various reasons over a stormy period that may be as little as six (6) months or three (3) years in the making and somehow or another these two (2) warring people are going to be able to work together under joint managing conservatorship to make decisions that affect this child or these children. Time and time again, these warring parties have agreed to be put on equal footing with one another to

10 Trying A Custody Case to the Bench Practical Pointers operate under the rights and duties allowed by the court when history has shown that is impossible. When there is high conflict, there is no way parties can agree, don't use JMC. One party should be the sole managing conservator and the other party should be the possessory conservator. All judges understand the underlying basic presumption is that the parties should be joint managing conservators but sometimes that is just not practical. XII. lies in creating a sense of injustice. Judges want to do the right thing and judges want facts not arguments and legal conclusions. Facts are the power to persuade; never lose sight of being professional in the presentation of those facts. CONCLUSION. Hopefully, using the suggestions herein will make your Bench Trial Custody Case a win for your client or at the least, improve your client's chances of winning. XI. CIVIL DISTRICT JUDGES CUSTODY SURVEY. Attached as an exhibit to this paper is a survey taken of the civil district judges on what they consider to be important in a custody trial to the bench. For your next custody case before the bench, you should review these results and concentrate on evidence where 50 per cent or more of the judges have agreed that certain evidence is more important than other evidence. The survey can be used as a primer to marshal your evidence, take your depositions, do your discovery and hopefully help you organize your case so a logical and persuasive case can be made for your client and that the best interest of the child or children will be telegraphed to the judge. Hopefully the foregoing will help you as you prepare for your next custody case to the bench. Remember that in a bench trial you only have one jurorthe judge. The first lawyer to make the facts come alive in a bench trial has a tremendous advantage. Remember that you are talking directly to a fellow human being about the gut stuff of life. What's right and what's wrong. What's fair and unfair and what's just and unjust. The power of persuasion 6

11 Trying a Custody Case to the BenchPractical Pointers APPENDIX A Trying a Custody Case to the Bench Evidence Judges Want to Hear Evidence that Bexar County Judges want to hear in deciding which parent is given the right to establish primary residence. Rate from 1 to 5 according to the following legend: 1. Unimportant 2. Somewhat important 3. Important 4. Very important 5. Case determinative Results of Survey of Civil District Judges: (Example 150% of the judges felt #4 in the legend applied;25% felt #3 applied;25% felt #2 applied) The questions are ranked by importance the actual survey is at Appendix B. 1. What type of situations/people has parent exposed the child (ren) to? (e.g. strippers, paramour, family members or friends who are convicted child abusers?) 90% 4; 10% 5 2. Which parent has shown that he or she can provide better for the child' s emotional and physical needs? 85% 4; 15% 3 3. Did either parent's conduct interfere with the best interest of the child (ren)? 80% 4; 20%5 4. The home environment of the parties. 75% 4; 25%3 5. Were the court's temporary orders violated in regards to possession and visitation? If so, by whom? 75% 4; 25%5 6. Does opposing parent have any problems with depression or mental illness? 75% 4; 12% 5; 12% 3

12 7. Are there any allegations/convictions for physical abuse of spouse, child (ren), or other person? 75% 4; 24%5 8. Which parent has been primary caretaker? 75% 4; 25%3 9. What type of relationship does the child (ren) have with parents? 75% 4; 25%3 10. Which parent can create a more stable environment for the child (ren)? (e.g. home environment, steady job/employment history, travels away from home and children?) 75% 4; 25%3 11. Which home environment is more appropriate for the child (ren)? 75% 4; 25%3 12. How much time does the parent spend with the child (ren)? 67% 4; 33%3 13. Did the parent with visitation regularly exercise it? 67% 4; 33%3 14. Where would the child (ren) have better social opportunities? 60% 2; 12% 3; 12% 4; 12%5 15. How well does parent supervise the child (ren)? (e.g. are left alone? Are they left with a sitter? How often? For what reason?) 60% 4; 40%3 16. What are the wishes or desires of the child (ren)? 60% 3; 25% 4; 15%2 17. Which parent retains the family home, if either? 11

13 60% 2; 25% 1; 15%3 18. Has parent sought any parental advise or advise about guidance of child (ren)? 60% 3; 25% 2; 15%4 19. Does parent appreciate and promote family structure and togetherness? 60% 3; 40%4 20. The testimony of experts and their opinions after evaluation of parties, and their recommendations. (Psychiatrists/psychologist) 50% 4; 25% 3; 25%2 21. Which parent would be better at granting and promoting access between the parents, child (ren) and extended families? 50% 4; 37% 3; 12%5 22. Which parent does the best job of keeping the other informed about the child (ren)? 50% 4; 37% 3; 12%5 23. Which parent encouraged the children's relationship with the other parent? (e.g. helping children shop for special occasion gifts and cards for the other parent, etc.) 50% 4; 25% 3; 12% 2; 12%5 24. Where would the child (ren) have better educational opportunities? 50% 3; 25% 2; 12% 5; 12%2 25. Are there any allegations of mental cruelty to spouse or child (ren)? 50% 4; 25% 5; 25%3 26. What type of support network does the parent have? (e.g. Friends? Extended family? Caretakers for children?) 50% 4; 40%3 27. What type of discipline does each parent use? 50% 3; 25% 4; 25%2 111

14 28. Which parent expresses a clearer plan for the child (ren) both now, and in the future? 50% 3; 37% 4; 12%2 29. Which parent has been more responsible in regards to the child' s education with regards to the following: Homework/studying? Absence/tardies? Meeting with teachers? Choosing schools? Involved with school? 50% 4; 50%3 30. Which parent is more consistent in their attitude toward the child (ren)? 50% 3; 37% 4; 12% Which parent focuses more on the needs of the child? 50% 3; 37% 4; 12%5 32. Would parent, if given right, be willing to remain if move would be unhealthy for the child (ren)? 50% 3; 37% 4; 12% How involved is parent in child's social activities? 50% 3; 25% 4; 25%2 34. Is parent patient or quick tempered? 50% 4; 37% 3; 12% If there is an ad litem, how does ad litem feel about child's residence, ifhas any opinion? 50% 3; 37% 4; 13%2 36. If parent has child (ren) by previous marriage, what is their relationship with the other children? 50% 3; 37% 4; 13%2 37. Does opposing parent show favoritism to one child over other children? 37% 3; 37% 4; 25%2 lv

15 38. Are the children close to the parent's extended family and what does the parent do to promote contact with extended family? 25% 2; 25% 4; 37% 3; 12%5 39. Does opposing parent have any history of problems with drugs or alcohol? Other areas Judges give importance to: 75% 4; 12% 5; 12%3 1. Appearance of clients; 15%2 2. Performance of attomeys;15%2 3. Use of demonstrative evidence (pictures, video, my space, recordings between the parties)l5%3 v

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