Michelle O’Neil:
All right. Welcome back. Michelle O’Neil here with O’Neil Wysocki.
We're bringing you the Basics of Dads and Custody in Texas webinar today,
approved for 2.0 hours of CLE credit and a half hour of ethics credit.
Joining me today are Michael Wysocki, my partner at my law firm and Ryan
Segall, who's also a lawyer at our law firm. And we are going to move
into our second session talking about the strategies before suit is filed.
So Michael, you've got a client who calls you who says, I don't know if
I'm going to file for divorce yet, but when I do, I want to put myself
in the best position I can to file for custody and assume this is a dad
calling you. What are some things that you tell him to do now before suit
is ever filed to be in the best position he can be from a standpoint of
custody of the kids.
Michael Wysocki:
Sure. So first and foremost, I'd let him know that our rules don't necessarily
give a parent, one parent or the other an edge like we discussed earlier.
So under our laws, moms don't have an edge, dads don't have an edge. The
court instead looks at factors, but even with regard to those factors,
there's no statutory set of factors. And what that means is that under
our rules, the court is not given a list of things to determine or a list
of things to look at in order to determine what is in the best interest
of the child or children. Which is what the court is ultimately tasked
with under our code in determining which is best interest and so oftentimes
you'll have clients say, well what is best interest? Well that's a good
question. Every case is different, but you can try and zero the client
in on some things that courts typically look at and/or factors that have
been laid out by certain case law in our state and so what we often will
do is focus the client on, how involved are you as a parent? And when
we look at that, we look at things such as who wakes the kids up in the
morning? Who puts the kids to bed at night? Who makes the children breakfast?
Who makes the children dinner? Who baths the children? Who helps the children
brush their teeth? Who helps the children with their homework? Who schedules
the children's doctor's appointments? Who takes them to the doctor? Who
schedules the children's extra extracurricular activities? Who takes them
to the extracurricular activities in addition to taking them, there's
one parent or the other coach that the extracurricular activity teams
or is one parent or another on board for a particular activity involving
the children. With regard to school, who signed the kids up for school?
Who takes them to school in the morning? Who picks them up from school
in the afternoon? Again, is that parent, one parent or the other on PTA?
Is one parent or the other the classroom parent? Does one particular parent
or both or some type of variation go to all the parent teacher conferences?
We look at a number of things to help provide the court some insight into
who, and you've heard us use the phrase earlier, who has been and/or should
be the primary parent based on the role the parent plays in the lives
of the children.
Michelle O’Neil:
So that's a lot of stuff of stuff.
Michael Wysocki:
And that's just scratching the surface.
Michelle O’Neil:
Yep. So whenever a client calls me and asks me that question, one of the
things that I talk to them about is the positive parenting qualities.
Like how do you go about proving those positive parenting qualities and
putting yourself in the role of being, like you said, the primary parent,
but also just putting yourself into those positive parenting qualities.
You know, in an ideal case, both parents have a whole lot of positive
parenting qualities and very little negative, but we almost never see
the ideal case. So Ryan, what do you tell a client when they call, a dad
who calls and says, what can I do now to prepare for some time in the
future if I want to sue for custody?
Ryan Segall:
Sure. So going off what Michael said, I think that the big points to hit
are being involved and whether it is in school, so go into those parent
teacher conferences. Being there for open houses, things like that. Doctor's
appointments, no one's going to buy you being the primary caretaker if
you just leave your kid at home and go to work and have the other parents
take care of everything, that's never going to work. And so I always tell
clients, do everything that you can to be involved with this child because
if you're not being involved, not to say that you can't go to work, but
at the same time you've got to balance those two things because you can't
go into a courtroom and expect to get a 50/50 or primary if you're not
doing things that are primary parent would do, which is stepping up and
being there for your child, for those doctor's appointments, for the orthodontist,
cooking them breakfast, however the schedule is.
But make sure you're involved so that when you do get to court, if you
get to court, you can show this judge, Hey, I did this, this, this and
this and here it all is. The other thing, I mean going off that note,
I tell him to start documenting things because if you're not papering
this, it's going to be a he said she said. It doesn't matter which side
you representing. And the courts are gonna say, well I don't know. They're
both saying different things, but if you have text messages, photos, signatures
on doctors notes or things like that that you can prove, Hey, I was there,
I did this, this and this. That is going to go a long way in helping your
case, whether you're fighting for the 50/50 whether you're fighting for
primary so that the clients know, Hey, I might not be filing now, I might
be filing six months from now, but I can certainly build my case because
the court is going to look at the most recent things more than the things
that happened five years ago. So I mean that's where I tell the clients,
make sure that you're documenting and getting everything together because
if you're not, and you just go in there and say, yeah I took them to baseball
and I coach his baseball team. Okay, great good for you, but that's not
going to get you primary. What's going to get you primary is being there
for all those other things. So not just for the fun things, but for what
a primary caretaker would do. I always tell clients like as far as text
messages, emails with the other side, be the nicest person. I preach that
from day one of when my client comes in to when we go in courtroom, I
say, if you can beat me at being the nicest person in court, I'll go buy
you lunch. Because the judges want to give the benefit of the doubt to
people. And if you're a nice person and you're showing, being courteous,
not only to the court but in text messages or emails with a mom or a dad
and you're saying, Hey, how can we work this out? Things like that, that's
going to look a lot better than you cursing them out and belittling the
other person and it's just not gonna work well. And so showing those kind
of evidentiary things will certainly go a long way in your suit.
Michael Wysocki:
And it brings up a good point. He points out it another thing that I tell my clients is you have to think of it like as if you yourself were interviewing someone for a job. So if you were hiring, you're remodeling your house. If you were hiring someone, Michelle,
Michelle O’Neil:
Involuntarily remodeling by the way.
Michael Wysocki:
If you were hiring someone to tile your shower, you would want to know, have you ever told a shower before? Do you know how to tile a shower? Can you show me that you know how to tell the shower? Do you have examples of showers you've titled, well in the courtroom, the court's going to want to know, well, you want to be the primary parent. Have you ever been a primary parent? Oh, you have? Show me examples of how you've been a primary parent. What have you done to be a primary parent? And that's when all of these things that we talked about become important is because it's just like as if you were hiring someone to do a job, the court is determining whether or not the court's going to hire you to fill a position that the court has to determine who's in the best place to fill that position. And so that's why all of these things become important because the court wants to see them, the court wants to know that you're capable of doing them. So we talked about all those factors, but also when it comes to possession and access, the courts gonna want to see if you come in there and you say, well, I want to be primary, but I've never given any of the kids a bath. Oh, well, Hmm. Or I want to be primary, but as Ryan pointed out, but I've never taken a single one of the kids to the doctor. Hmm. Interesting. I want to be primary, but I've never gone to a parent teacher conference. Oh, okay. I want to be primary, but I've never set up a play date for any of my children. Well those are all things that we would anticipate that a primary parent would do, should do and would be expected to do. And so you need to be able to come into the courtroom and show the court that you're capable, that you know how to do a and that you've done them.
Ryan Segall:
And I've seen in the case that I was talking about earlier with the two-month-old,
the other side tried to cross my client who was dad, tried to cross him
on what type of formula does this baby have? And my guy answered it like
that and the judge kind of gave a little smile because they were trying
to trip him up and he knew right away what type of formula, the brand
of formula, how much formula when it was given to the baby. I mean, he
just nailed those things and I mean he got a pretty good result and because
he was able to show, Hey, this is what the routine is for this child.
And so he was ready to step up right there.
Michelle O’Neil:
I liked that, likening it to a job interview that the judge interviewing
for the best person to be the parent as if it's a job interview. I like
looking at it that way. I think that's a great way for clients to look
at it. But what about the guy who says, but Michael in our marriage, I've
been the one that's gone to work, and she's been the one staying home
and for X, Y, and Z reasons. I don't think she should be the primary parent.
So but I haven't been cause I've been working and I've been working a
lot. So what do you tell him?
Michael Wysocki:
So in that situation, we look at that and say, okay, well this is a situation
where you have, through choices designated this person to fulfill that
task. What the position you would obviously take with the court is that
that person has not fulfilled that task. Like, judge…
Michelle O’Neil:
She needs to be fired from the job.
Michael Wysocki:
He or she, this is the job they were supposed to be doing. This is what I anticipated they would be doing. They haven't been doing it. I have that client step up before we ever file and start filling the shoes. So that way we have a baseline or a basis to be able to show the court that it was necessary for that parent to step in and begin fulfilling roles and tasks that were not being appropriately completed by the other parent. And judge, we've had to file this case and move forward and because of these reasons which sometimes are bad acts, sometimes that parent is picking other things over the children. Sometimes it can be drugs, sometimes it can be alcohol. Sometimes it can be third party such as going and hanging out with their friends. Sometimes it can be third party in the sense of a pair more. They are choosing to go spend the night, spend the weekends, spend this and that with someone that they're having an affair with. And so what we see in those cases and what I always tell the court is judge, we can tell what this person's priority and or priorities are and those priorities are not the children. My client’s parties have always been the children even when he or she was at work because they were working to provide for those children. And so we know what this person's priorities have been. My client's priorities had been the children, whether it was at work or at home, this person's priorities have been X, Y, Z, anything about the children. And so in those circumstances, it's not a situation where, sorry you've allowed that parent to be the primary parent, you're out of luck. It's a situation where we need to address it.
Michelle O’Neil:
And I mean they are coming from behind if they've been the working parent
versus a stay at home parent.
Michael Wysocki:
Definitely coming from a different position and depend again, everything
is fact intensive. So it, depending on the facts and circumstances and
depending on whether or not that parent, because sometimes you'll see
these situations where the parent will come in and say, the other parent
staying at home, but they're not doing their job. Okay, well great. You
ready to jump in there? Oh, well, you know, Oh, I've got to work and I've
got, so you're not ready to jump. Okay. Well, so then the court has to
pick your poison. Do we pick the person who's been the primary caretaker,
but maybe not necessarily doing the best job or do we pick the one who
has not been the primary caretaker and who doesn't necessarily want to
be the primary caretaker? Well in that situation the court's probably
gonna pick the primary caretaker who hasn't necessarily been doing the
best job under those circumstances.
Michelle O’Neil:
So how do you go about, cause you were talking about gathering proof and
evidence and pictures. Like what are some ways that you can document without
going overboard to prepare for that custody case?
Ryan Segall:
I always tell clients start to, because the client is going to give you
stacks and stacks of screenshots and you're going to look at these and
say well it is going to cost you a lot of money for me to look at those.
What I always tell clients to do is pick a certain number, screenshot
certain things and then tab them. Maybe put them start a journal or a
binder or some sort so that it's organized. Cause if it's organized and
I can flip around through it's going to be a lot easier for everybody.
It's gonna be easier for me. It's just going to be easier for me to present
it to the judge. And I always tell them, categorize it by certain things.
So if some things are for doctors appointments, some things are for pickups
and drop offs. So that way we can say, Hey, he was picking up or she was
picking up on these days at these times. Here's all the proof of that.
Great. I've got those texts. And so I think that that's the important
thing. On that front, kind of going off what Michael was saying, I think
having a plan, if you're going to ask for a primary or 50/50 whatever
it is, and you're working full time, you better have a plan for where
that child is going to be when you're at work. Because if you don't and
you go in there, like Michael said, I would like primary. Okay, great.
What does that mean? I don't know, I just one primary, I know that and
without some sort of plan saying, Hey, this is what's going to happen.
I'm going to have my mother or somebody take care of the child while I'm
at work or I'm going to have daycare and I'm going to pick up and my job's
going to be flexible with me. That sort of thing is incredibly important
to show the court why the status quo of that typical stay at home parents
isn't working anymore and what we can do to kind of get this child to
the next level of where he's going to be. He or she is going to be in his life.
Michelle O’Neil:
I liked what you said about journaling because that's one of the things
that I talk to parents either in the middle of a custody case or preparing
for the custody case to talk about journaling. Keeping that journal, that
daily log. There's a lot of formats. You can have like a regular written
journal. You can have calendar entries. You can do it in a word doc that
just starts with the next day and just kind of goes and goes and goes.
But some form of documenting every day your involvement with the child
or what happened that day. Today got up, we had bath time. The kiddo was
really cute because they sang the rubber ducky song and then we went to
school and we stopped and got donuts and whatever. Having just kind of
that journaling and not the Johnny come lately journaling. But journaling
over a history of time I think is very effective to show that kinda day-to-day
mundane routine, every day I'm doing parenting stuff. I like that when
clients do that.
Ryan Segall:
I do that along the journaling, I also have them do timelines because I think timelines are incredibly helpful. I'll typically, depending on how long or how old the child is and what not, it depends on how detailed I'll tell them to be on the timeline. But I think the timeline helps, not only the client remember things and they can go back and pull certain text messages or things like that, but it also helps the attorney figure out, Hey, what do I need to stress in this case as we prepare for trial?
Michelle O’Neil:
So social media, friend or foe? Can it be a friend? Can it be a foe in this preparing for litigation type of a situation?
Michael Wysocki:
Of course. So it can be both and what you oftentimes see with these social
media sites, whether it's Instagram or Twitter or otherwise. As you see
people, you’ve talked me to go about a journal. And when we think
about things like a journal and oftentimes these social media pages as
you see people using them as almost like a stream of consciousness where
they're sharing their private thoughts, their private emotions. And oftentimes
they're private choices that aren't necessarily the best thoughts or the
best choices. And so they oftentimes can be a treasure trove of information
for the parent who's making good choices, but oftentimes they can also
be very damaging if your client is not the one who's necessarily making
the best choices and who has using that a social media account as that
stream of consciousness to display their bad acts for all the public to
see. So that pendulum can swing both ways.
Michelle O’Neil:
Yeah. I think a lot of people, when you talk about journaling, I think
a lot of people use Facebook as almost a journal of what I did today,
which can be good or bad. I mean, if you've got a lot of, not necessarily
one or two, but if you've got kind of a pattern or history of having pictures
of alcohol or I've seen a few where you've had pictures of drugs, but
not very many. Surely people are smarter than that at this point, but
some pictures of going out, drinking with the girlfriends, margarita is
on the table. I've even had a case or two where you have margaritas on
the table with the kiddos in the picture. Those can be the times where
Facebook or social media can be bad for a parent. But I also think they
can be good for a parent. I can think of one of our clients in particular
who does a fantastic job with social media. Emphasizing the parenting
role, active in the parenting role on social media. So showing being at
the soccer games and coaching and going to the PTA meetings or the school
or this or that. So I think it can be both. A can be your worst nightmare
if you're just kinda letting your, as you said, your private stuff, be
public. Or it can really be a help if you are showing the world and Facebook
the positive things that you're doing as a parent.
Ryan Segall:
That's right. And I always tell clients, be very careful and cognizant
of what you're posting because I'll never forget a case that I had a few
years back. We represented a dad and mom was saying that dad was this
drunk, he was this alcoholic, ect. And then mom, a week before she had
filed a TRO, mom had posted, what rhymes with Friday alcohol meme on her
Facebook. And the judge, she got hammered for it because, more ways than
one, but the judge gave her a stern talking to about how you can possibly
be accusing him of these bad acts when you're seemingly okay with them in yours.
Michelle O’Neil:
So moving out. At what point, so we're still in the prior to litigation,
at what point do you talk to fathers, to men, about moving out versus
staying in the house?
Michael Wysocki:
Sure. So a number of the things we've hit on are factors that aren't just
factors that we as lawyers look at, but there are factors that I have
been addressed in case law. Ryan talked earlier about having a plan. We
are now talking about stability and the number of these are factors known
as the Holly factors, which is all of us lawyers know as the case of Holly
v. Adams, Texas Supreme Court from back in the 70s. And stability with
regard to any children, whether infants or all the way up to nearly emancipated
teenagers, stability is always going to be something that the court looks at.
Michelle O’Neil:
I feel like that's the most important thing the court looks at, especially
in the very beginning of the case.
Michael Wysocki:
Of course. Stability and maintaining status quo. And so clearly the child's
residence, if it's a house that the kids have lived in for the past two
years, five years, ten years, is going to be significant and it's going
to be a situation where you have to, you can't make that decision as to
whether or not to move out lightly. And you have to base that decision
on looking at the facts and circumstances of the situation. So for instance,
maybe you have lived in a house for the past five years, but you're well
aware that we're about to request the court sell that house and we anticipate
that the court probably will. In that situation, it's going to be more
important to go ahead and set up a new stable residence quickly because
that will become the new status quo and you can be like, well judge, that
house is going away so it doesn't really matter who lives there. She's
living there right now, or he's living there right now, but that doesn't
matter because we're about to sell it. And so that is unstable. The fact
that that parent is still staying there and has not established a new
abode, a new point of reference for stability, is a problem. Whereas I
have and look at it. It's great. It's wonderful. It's beautiful. It works
perfect. If you have a situation where you have an existing residence,
but you only lived there a short period of time or the residents that
you're currently living in is a lease or a rental property as opposed
to a home that the parties own. You look at these factors in determining
what would be the best course of action here in it loops back around to
what Ryan talked about earlier with when we're presenting our quote unquote
plan for the children to the court.
Michelle O’Neil:
Don't you think though, especially in representing fathers, there's always
this balance in the question of moving out of if they're going to sue
for custody, they need to be there and be the primary parent and be in
charge and be directing what's going on with the kiddos. But on the other
hand, a lot of times when you're getting to that point of almost breaking
up, relationships can get a little volatile. And there've been known to
be times where women would trump up some stuff to kind of create some
volatility so that the police get called. And in my experience, the police
getting called always goes bad for the guy. And so you've got this like
balance of like do you stay because you've got to be there and be parenting
the kids? Do you move out because the police might get called? How do
you balance those two things?
Michael Wysocki:
Every case is different.
Michelle O’Neil:
Yeah, I mean it's a hard part for me in advising dads and when you get to kind of that point of, I always tell them, if things start getting volatile, if tempers start getting out of hand, you got to go. Because if the police come, if they arrest you, if you lose your temper, you're done.
Michael Wysocki:
And making that call effectively is something that comes with experience.
After you've tried enough of these cases, handled enough of these cases,
you get a pretty good feel of when you need to make that call. We needed
to make that call out of risk versus reward. Is the risk of a false allegation
worth staying there for the potential that the court would consider that
instability or is it a situation where you can show the court that the
risk of staying there was much greater and would have had a much more
negative impact on the children than the parent going ahead and having
moved out? You weigh those factors and that's why the attorney gets paid
to make those types of calls.
Michael Wysocki:
Well, and I think also that's when it's time to pull the trigger and file
the lawsuit. I mean if you're legitimately afraid that that's a problem,
that means it's time to go to court so that we can get orders in place
to deal with that.
Ryan Segall:
And nowadays, I mean heck, these small nest cameras, they're not very expensive.
And if you think that there may be a he said she said situation. I mean
I've told clients, put some cameras up because that'll solve some of those issues.
Michelle O’Neil:
And I think that's a good point. We've had a case where the cameras inside
the house were a factor in the very beginning of the divorce and proving
some things that happened or didn't happen. So I think that's a very good
point that the only thing I would caution is not to put cameras in a bedroom
or a bathroom or the shower, places where people are entitled to their
privacy. But definitely in the living rooms and kind of those common areas
where fights can go down. I mean that can be a help in proving what did
or didn't happen. Alright. So we're at about that 30 minute mark. We're
at the end of session two, the strategies before suit is filed. We're
gonna move to the session three. The next section is on navigating custody
evaluations. What to do about child custody evaluations, the strategies
for dealing.