Summer 2017, Issue 3

Better Results in Custody Trials

Family law lawyers want to be able to tell their clients with custody issues the same thing they already tell their clients with financial issues: If sufficient child-related evidence is presented in support of a logical and practical outcome, that outcome will be largely achievable. Or conversely, if insufficient evidence exists, the initially-desired outcome is not likely, and another goal should be considered for settlement or trial.

However, the difference at trial between proving financial values and proving custody issues may seem like the difference between simple arithmetic and an arcane ceremony conducted on a dark night.

The genesis of the problem may lie in the law itself. For monetary issues, the parties are legally required, at minimum, to exchange information on both income and property early in the case, even if no hearing is pending. Typically, based on statutory formulas and case law guidance, attorneys will have analyzed income, obtained appraised values for major assets, dispassionately discussed valuation of a business, traced origins and uses of separate property, made provable reimbursement claims, and tax implications will have been explored. Bottom line, experienced lawyers who know the law on financial issues will have taken time-tested steps to prepare for settlement or trial.

In comparison, for custody disputes, with the stakes extremely high because court orders may permanently affect a parent’s core relationship with a child, there is no legal mandate to voluntarily exchange any information in discovery or disclosure before litigation begins. Evaluations of any type are conducted in only a fraction of all custody cases, and formal requests for such expert opinions are frequently denied over objection. Pertinent witnesses and documentary evidence are often ignored by the other parent until the last moment or kept secret until weeks before court. And to make the entire situation worse, party emotions often run high. All of this frequently convinces lawyers to go to custody hearings overly reliant on party testimony, and without the carefully planned evidentiary framework they would typically present in a financial case.

This article will use recent case law to demonstrate that precision in the preparation of custody evidence is not a dead concept. Careful adherence to the elements of law and careful planning of evidence and testimony will increase the lawyer’s ability to predict custody case outcomes for evidentiary hearings1 or trial.

Complex, Imprecise, Broad Discretion

Many harried family lawyers assume that if the facts in a custody case are generally and fairly addressed, proper decisions will be made. This is problematic because in comparison with financial law, custody statutes are frequently complex, imprecise, and give broad discretion to the judicial officer. Therefore, a marginally-prepared lawyer and an emotional client may lose a key custody decision without realizing that their presentation was unconvincing and incomplete.

Instead, lawyers must present their evidence in a way that emphasizes the pertinent elements of the law. Doing this will minimize vulnerability in at least three areas ripe for missteps: a) the judge knows more than the lawyer,
b) the judge does not know the law, and/or c) the judge prefers not to grant novel or nuanced requests.

Judge Knows More Law than the Lawyer

Recent case law demonstrates a classic custody trial problem: When the court knows the law better than the lawyer, the lawyer may fail to prove crucial elements of the law to the judicial officer’s satisfaction.

An April 2016 custody case with domestic violence allegations, A.G. v. C.S., demonstrates a custody presentation lacking in sufficient evidence to prove necessary elements, thus yielding an unpredictable result. Mother lost when she failed to prove the necessary legal elements of domestic violence and “was unable to establish a specific, credible incident of abuse.”2

At first glance, mother, who was self-represented at trial, would normally have prevailed. She gave evidence and had others testify to a huge number of facts alleging past physical abuse, alcohol abuse, stalking, fear, the need to be in a shelter with the children, harm to the children, etc. Despite all of this, father’s attorney was able to demonstrate, with surgeon-like skill, why each of mother’s allegations was either false, subject to interpretation, or based on impermissible hearsay. For example, father had been in an accident mother knew about, so he could not lift his arm to do what she said he did. This litigant’s poor credibility was obviously a factor in any findings made by the judge, but this case is a good example of how father’s attorney was able to overcome allegations by showing that elements of the law had not been proven by the accuser against the accused.

Mother also failed to prove several key legal elements in her response to father’s bid for sole custody. One of those elements involved whether father could be found to have abused alcohol as defined in Family Code section 3011(d). Mother offered proof that father had two DUIs and also obtained father’s admission that he drank four to five beers per day, three to four days per week.3 However, as bad as all of that may have sounded, mother lost the issue because she did not even try to prove that this level of consumption was “alcohol abuse,” a necessary element of the statute.

Courtrooms are filled with lawyers, not just self-represented litigants, who make similar mistakes by not sufficiently proving the elements of custody law before a knowledgeable and often cynical judicial officer.

Emphasis on the Imperatives

Another domestic violence case shows that sometimes a litigant can get hung up on a tangential legal argument such as, “you can’t prove I did anything wrong,” instead of affirmatively disproving the legal elements of the offense alleged when he has the burden to do so. In Evilsizor,4 a May 2015 domestic violence case with custody issues, the husband downloaded “tens of thousands” of text messages from his estranged wife’s phones, then began to use the messages to prove his case, but also to distribute them in ways embarrassing to his wife. Instead of seizing the opportunity to mitigate damages in a losing situation, the husband (Sweeney) placed “far too much emphasis on the fact that the trial court specifically declined to address whether Sweeney illegally obtained information from Evilsizor’s phones.”5 The lesson here is that the elements of domestic violence were left unrebutted while the husband asserted that he had a right to wife’s data. The trial court was easily able to issue restraining orders under the recently amended domestic violence statutes.6

In a continued desperate straying from the point of the hearing, on appeal, the husband framed his argument as a free speech question. The appellate justices held that the portion of the restraining order prohibiting further dissemination beyond the divorce case did not “amount to a prohibited prior restraint of speech.”7 But frankly, although the constitutional law question is interesting to lawyers, the father lost on the domestic violence question because he did not properly defend himself on the elements of harassment that mattered most in his hearing. Whether he obtained the data legally mattered not at all to the issue of whether he used the data to harass his wife.

In Stuard v. Stuard,8 a 2016 grandparent visitation case, grandparents won visitation over father’s objection because they successfully brought in evidence proving the necessary elements, namely that they had a long-standing relationship with their granddaughter that was in the best interest of the child9 to maintain. The burden of proof having shifted to father, the court found that father had not only helped foster the grandparents’ relationship but that he gave “no evidence of culpable misconduct”10 that would have made the termination of the grandparent relationship important to the child’s best interest. In other words, father evidently missed the “best interests” element altogether, so once a relationship was proven and the burden had shifted, he could not rebut. The seeming intangibles on the custody side of family law, such as “best interests,” may seem less concrete than proving the value of a home, but evidence must still be presented to prove or disprove these more nebulous elements of the law.

Know the Law Better than the Judge

A second problem for lawyers is making sure the judge is ruling based on the right law. Of course, no judicial officer, new or well-seasoned, knows all the law all the time. When a bench officer is not aware of the law, and the lawyer does not successfully educate the bench at the time of hearing, the ruling may be based on the wrong elements altogether.

In Stuard, discussed above, the judge got the issue of grandparent visitation resoundingly right, but was reversed and remanded for further ruling on three points of bright-letter law. Father had been forced to leave grandparents’ home for issues of rage, and was ordered, without findings, to take anger management classes for an indefinite time period. The trial court thus failed to rule on three mandatory elements of the counseling statute.11 When the grandparent visitation issue was affirmed on appeal, the appellate court went out of its way to ask the judge to correct her rulings on the counseling statute by making proper findings on best interests and affordability, and to establish a correct length of time for father’s classes.12 Although the judge had ruled incorrectly, neither lawyer had stopped the judge at the trial level from making the incorrect rulings.

Arguing the Right Law

Another experienced judicial officer made extensive factual findings but committed legal error by failing to consider domestic violence in his custody ruling in the August 2016 case, Ellis v Lyons.13 A multi-day hearing was conducted, including testimony from a teen who did not want to see her father, but the commissioner’s rulings appeared to ignore the need for mandatory findings when domestic violence orders have been previously made. The judicial officer made other findings: He criticized mom for forum shopping, and stated that a Massachusetts temporary domestic violence ruling was made in ignorance of the large file his court had accumulated on the couple. However, the appellate court stated that although they will sometimes “parse” missing findings from the available record to glean meaning, “there is no profit in such a task because it is clear there was error here—the family law court expressly relied on a consideration section 304414 forbids.”15

Another example of improper application of the law is seen in Rodriguez v. Menjivar,16 a December 2015 DVPA re-issuance case. The ex-boyfriend had committed physical violence in the past and had recently struck the couple’s child, making her lip swell. However, key to the court’s ruling was the fact that no new incidents of physical abuse were perpetrated directly on Rodriguez prior to her bid for re-issuance of the restraining order. In addition to striking his child, Menjivar regularly made unsettling statements to Rodriguez, that she testified disturbed her peace. For example, Menjivar threatened to slit Rodriguez’ teddy bear’s throat, “because that was what he wanted to do to her.”17 The well-respected judge had an off day. He did not find the new incidents rose to the level of abuse18 (the wrong test for re-issuance), and declined to reissue the restraining order or protect the child. Appearing to know the law, but perhaps being too subtle when the judge was clearly heading down the wrong path, the lawyer for Rodriguez asked a crucial question for purposes of appellate review: ““You’re making a determination that there was domestic violence in the past and that that is not sufficient to order a restraining order going forward?” The court replied, “That’s right.””19 As the appellate court concluded, “the court’s reasoning rests on an error of law.”20

Closing Arguments Crucial in Custody Litigation

Rodriguez’ lawyer appeared to try to caution the judge, but stopped short of expressly referring to the statute. Not criticizing a lawyer in the trenches, but using his dilemma to make a point—ideally, a well-prepared lawyer such as this, who realizes he is in such an unfavorable position, should insist on presenting closing argument. Although a frequently ignored tool for non-trial hearings, closing argument is ideal for such a situation. By having already presented facts on each of the elements of law, as this article advocates, then citing to, even quoting, the specific applicable sections of the statute in closing argument, a lawyer increases his or her chances to prevail.

Judges Hate Nuances

When considering what law to present at hearing or trial, experienced family law lawyers know that what was true last year may not be true next year. The recent change in domestic violence law is an example of this evolution of the law.

Judges tend to be traditionalists, so lawyers should try to stay away from the cutting-edge approaches for better predictability of results. If a tried-and-true legal argument will fit the same set of facts as a novel approach, it is always better to select a traditional trial theme to bring to court. However, sometimes getting into new concepts cannot be avoided. The strategy should be that the lawyer is even more precise with evidence, witnesses, and recitation of law when the lawyer is asking for a new application of the law, or for a new law to be applied. The more complete the presentation, the better decision the judge can make.

Three recent custody cases demonstrate the law-in-flux situation well. They are all from Dependency/Juvenile, so family law lawyers must replace the legal elements of harm or neglect with “best interests of the child,” but the factual issues for all three cases are also frequently contested in family law courts.

Imprecision in Medical Marijuana Litigation

In Drake M.,21 a 2012 case testing the then-new laws on medical marijuana, father’s children were removed because he was assumed to be “under the influence,” and therefore, the children were presumed to be in danger. However, the appellate court reversed, even under the old law, because although the lawyers for DCFS had proven father used marijuana and had argued generally that being under the influence of marijuana affected a user, they failed to offer any rebuttal on a key legal element—whether father was actually under the influence when he cared for the children. With recreational marijuana usage now legal, the nuances of whether the best interests of the offspring of a using parent are being protected will be temporary new territory in family courts, and will need to be even more carefully proven than what the appellate court required in its reversal in Drake M. In that case, father, whose children lived with him, used marijuana for an arthritic condition approximately four to five days per week, under carefully controlled conditions, at least four hours before seeing the children. The appellate court gave a specific critique of the evidence presentation stating, “DCFS … failed to provide any evidence such as police reports or other documentation, any controlling legal authority, any expert testimony, or any witness testimony to support”22 a “showing that four hours after smoking … father was still under the influence of marijuana and was unable to … care for a child.”23 In other words, despite having sold the trial court that a person using marijuana was probably intoxicated similar to alcohol intoxication, DCFS did not specifically prove up marijuana intoxication nor the elements of the new law as it applied to the specific litigant.

Mental Health Litigation Still Controversial

In January 2016, in another case about whether the parent’s condition affected the child’s well-being, the mother in Patricia W.24 had her child permanently removed without specific proof that her health condition was harmful to the child. Mother had stopped taking her schizophrenia medications for a while, but during the course of the case was able to improve her treatment, showed a better understanding of why taking the medicines were important to her and her children, and was able to stabilize her emotional and mental condition. As in Drake M., lawyers failed to prove a key legal element—this time, no evidence was presented that under mom’s new successful treatment plan, reunification would have been harmful to the child. Reversing, the appellate court criticized the department’s evidence as incomplete, and ruled similarly regarding this mental health issue as the California Supreme Court had ruled regarding a physical disability more than thirty years before in Carney:25 Even with conclusive proof of a disabling condition, without proof that there will be ongoing harm to the child, the condition itself is a legally insufficient reason to remove the child from its parent. Mental health issues are not rare, but are relatively infrequent in individual family law courts, so attorneys for either side must assist the court with the legal and factual nuances of the individual case, including a consideration of the psychological privilege issues, to avoid a Patricia W. ruling.

Litigating Marijuana Use Now Off Limits?

In a November 2015 case, Natalie A.,26 a father’s lawyer attempted to allege a Drake M. scenario, arguing that even if the department could prove father was illegally using marijuana, its use alone should not result in limiting father’s visitation. This argument is now beginning to be heard in family courts. However, unlike the previous two cases discussed herein, in addition to the fact that the allegedly-dangerous situation was then illegal, a huge amount of substantial evidence of harm to the children was presented at court: Father refused to submit to interim court-ordered drug tests. Testimony from neighbors and his own mother painted him as a negligent father. His one-year-old son suffered a burn on his hand when he pulled an iron down on himself while not being supervised by his only babysitters, the older children. Father had substance-abuse related arrests. And finally, father admitted to smoking marijuana one time in Las Vegas. The father lost custody because despite a possible temptation to go easy on a marijuana case, the evidence of neglect mattered. Family lawyers who are worried that there is a temptation to “go easy” on marijuana use, but who have the right case, should use Natalie A as a primer on the types of evidence that must be gathered to prove a need for restricted access to the children when there is a danger to health, safety, or welfare27 of the children due to any substance intoxication.

In all three of these nuanced danger-to-the-child cases, whether the individual parent should be around the children was more important than proof of the presence of the substance or condition itself. When the “harm” element was not successfully proven, the department lost. These three cases demonstrate the skill that must be used in proving an evolving law issue.

In conclusion, as demonstrated in the nine cases cited here, planning the evidentiary custody hearing or trial around the core principle of proving all elements of the law will lead to more predictable results in custody litigation. Better results will be obtained by ensuring that the judicial officer sees that the lawyer has proven every element, that the judicial officer knows the law upon which to rule, and that the judicial officer is sufficiently informed as to be empowered to rule on nuanced or evolving law issues.


1 Cal. FC § 217.

2 A.G. v. C.S., 201 Cal. Rptr. 3d 552, 557 (2016).

3 Id. at 560.

4 In re the Marriage of Evilsizor and Sweeney, 189 Cal. Rptr. 3d 1 (2015) (Evilsizor).

5 Id. at 11 (emphasis added).

6 Cal. FC §§ 6203(b), 6320(a).

7 Evilsizor, 189 Cal. Rptr. 3d at 13.

8 199 Cal. Rptr. 3d 821 (2016).

9 Cal. FC § 3104(a), (b), (f).

10 Stuard, 199 Cal. Rptr. 3d at 827.

11 Id. at 834.

12 Cal. FC § 3190.

13 206 Cal. Rptr. 3d 687 (2016).

14 Cal. FC § 3044.

15 Ellis, 206 Cal. Rptr. 3d at 697.

16 Rodriguez v. Menjivar, 196 Cal. Rptr. 3d 816 (2016).

17 Id. at 817.

18 Cal. FC § 6320.

19 Rodriguez, 196 Cal. Rptr. 3d at 820.

20 Id. at 821.

21 In re Drake M., 149 Cal. Rptr. 3d 875 (2012).

22 Id. at 886.

22 Id. at 882 (emphasis added).

24 Patricia W. v. Superior Court, 198 Cal. Rptr. 3d 1 (2016).

25 In re Marriage of Carney, 157 Cal. Rptr. 383 (1979).

26 In re Natalie A., 196 Cal. Rptr. 3d 303 (2015).

27 Cal. FC § 3011.