Leigh Travis - How To Write a Petition for Custody

HOW TO WRITE A PETITION FOR CUSTODY

Leigh Travis, Ph.D.

INTRODUCTION

Why write a Petition for custody?

First, it's the ONLY way you can understand your "case" for the custody of your child(ren). By thinking about, and writing about the eleven points of the Michigan Child Custody Act, you will be prepared to answer all the questions put to you by Friend of the Court case workers and, later, if you go to trial, the questions put to you by your attorney and your spouse's attorney.

Second, writing and filing your Petition For Custody is undoubtedly the quickest and least expensive way to win custody: the Petition is so intimidating, approximately eighty (80%) percent of the time, the other side "gives up," chooses to settle the case rather than go the expensive route of a trial.

And finally, it is not likely that your attorney will take the time to write a Petition For Custody: Michigan attorneys get no specialized training for child custody cases in law school, and, furthermore, get no training in either clinical or developmental psychology.

In other words, it's up to you to "win" your case! How to do so begins now:

Session I:

Oral and Written Communications

What are the differences between oral and written communications?

In the 60's psychologist Virginia Satir published a series of articles and books In which she wrote about what she called "the communications arc," or an analysis of how we communicate (and fail to communicate) with one another. The diagram of Satir's communications arc looks like this:

NOISE

SEND (encode) RECEIVE (decode) send

RECEIVE (decode)

NOISE

How does this "communications arc" work?

For example: I am now trying to send you people a message about the communications arc. I am sending this message to you orally, and in written form. You are receiving my message using your ears and eyes (reading) and brain: if you understood the message, you would indicate that understanding by verbally sending me the message "Yes, Leigh, I understand what you are talking about."

But it is doubtful that, right now, you fully understand my message: why? Because there is "noise" in the message interfering with my message, interfering with you fully comprehending the message, and this "noise" is in the form of (at least) three words:

"encode" "noise" "decode"

What do these three words mean in this context?

When you send a message to someone else, either an individual or a large audience, whether the message is oral or written, you try to put your message in words that you believe your audience will be most likely be able to understand: in other words, you put your message in the "code" you believe your audience will understand, you "encode" (put into code) your message, tailor the words of your message to the language skills of your audience, who then interpret (decode) the message you have "sent."

However, if there is excessive noise in the environment in which you are sending an oral communication - for example, a jack hammer at work - your audience will probably not be able to hear your words, and thus understand, your message, because the sounds of your words are drowned out by the excessive noise of the jack hammer (or jet plane, or noisy Dixieland band, etc.).

There are other kinds of "noises" that interfere with effective communications: your choice of words in an oral or written communication can also cause "noise," interfere with the successful communication of your ideas: you must, therefore, "encode" your choice of words, tailor your words to your audience.

It will probably be easiest for you to understand the concept of encoding by, first, thinking of trying to send a oral message to someone else who, for example, speaks only French: clearly, if you're going to communicate with such a person, your best bet is to send (encode) your message in French, right? The French speaking person would then be able to "decode," or interpret (understand), your message. However, if you sent your message in English, the French-speaking person would not understand you at all, would hear only "noise," would be unable to understand (decode) your message.

Thus, it is critical that before you send any message, you fully understand what "language" your audience speaks. The word "language" in the preceding sentence was put in quotation marks on purpose to call attention to the word as a word, and to indicate that the word "language" needs to be, and will be, defined here.

The word "language" comes the Middle English/Old French word "langue," or "tongue," because spoken words are produced by using one's tongue (and vocal cords) to create sounds that have recognizable meaning(s) to one's audience. Written language is the "tongue" rendered on a page in writing using the rules of the language's grammar, idioms, and other components. In both oral and written forms of any language, we must encode our messages in terms of the intended audience of our words, if we wish to successfully communicate our ideas.

For example, when speaking to, say, a child, we try to choose words that are simple, concrete, words that refer to persons, places and things, not abstract concepts. If your three year-old child, Nancy, asks you a question such as:

"What does 'divorce' mean?"

what do you say? Do you say that: "divorce is the legal dissolution of the marital contract"? Of course not: the words "legal," "dissolution," "marital," and "contract" are abstract concepts beyond the child's minimal vocabulary and the child's mental capacity to comprehend (they are "noise"). You will have to find words describing the abstract concept "divorce" in a concrete way, something "touchable," for the child to understand. For example, here's stab at an answer to the three-year-old's devilish question about the abstract concept "divorce:"

"Nancy, remember the poem we read last night about 'Humpty Dumpty'? He had a great fall, came apart, and all the king's horses and all the king's men, couldn't put Humpty Dumpty back together again, remember? A marriage that comes apart, that ends in divorce, is kinda like Humpty Dumpty.

Or, for another example, remember when your toy cradle came apart and broke into two pieces? That's kinda what 'divorce' means: a mommy and a daddy who were married to each other, were kinda stuck together, come apart and break into two people who live apart from each other."

This is a more concrete, "touchable" message for the child and while it is "touchable," it is still not likely that a three-year-old child will be able to fully "decode" the simpler, more "touchable," message without asking a great many more questions ("Can you fix a broken marriage with glue the way you fixed my broken cradle?").

Communications are tough.

All is not doom and gloom, however. When one sends a message orally, in a face to face communication with another person, you have a whole array of other communication tools besides mere words to draw on:

your facial expression(s)

your eye contact (or lack thereof)

your touch (handshake, a hug, a kiss)

the tone(s) of your voice

the pitch (loud, soft) of your voice

gestures (facial, hands, shoulders, the body)

your style of dress

your hair style

your grooming (fingernails, makeup)

the location you chose for the communication

the time of day you chose for the communication

the way you smell

the specific words you chose for the communications

Notice that this array of communications tools is available ONLY in oral communications: in a written communications, you essentially have only ONE communications tool:

written words

Thus, when you write a Petition For Custody, you are writing to:

(a) someone you don't most likely know (a judge);

(b) your to-be ex-spouse and his/her attorney;

(d) and you are writing in the language of law (which you don't most probably know).

Sounds like a tall order, doesn't it?

It's not that hard. The good news is that you do NOT need to know much of the language of law to write a Petition For Custody (writing a brief to the Court of Appeals is another story). You will need to know:

(a) What the legal form of the Petition is;

(b) How to word the opening paragraph;

(d) How to word the final, "relief" section.

These four (4) items are easily learned. The legal form you can copy from virtually any Petition, the wording of the opening paragraph is the same in all Petitions and Motions, the eleven (11) points of the Michigan child custody act are available to you in the Friend of the Court Handbook, and the "relief" section we will discuss in detail at the end of this seminar.

The Form: at the top of the first page of your Petition For Custody, type (or print: do not write in longhand):

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF (OAKLAND., WAYNE, etc)

JOHN DOE,

Plaintiff,

vs. Case No.

HON.

MARY DOE,

Defendant.

filling the correct name of the county your case is in, the name of the Plaintiff, your case number (if known), your judge (if known), and the name of the Defendant.

Directly beneath the Defendant's name drawn a line and (if known) beneath it put in the names of your and your spouse's' attorneys, their "P" numbers, their addresses and telephone numbers, like so (the names and other information are fictitious):

_______________________________/

PETER MOOR, (P-13422)

Attorney For Plaintiff

300 Elm Street

Anytown, MI 48197

(313) 483-7711

JOAN SMITH (P-32222)

Attorney for Defendant

415 Hill Street

Anytown, MI 49221

Phone: (313) 263-6666

_______________________________/

Next, put in the caption, in all capital letters, centered and underlined, on the page:

PETITION FOR CUSTODY

and beneath the caption, the opening paragraph:

NOW COMES (Your name), Plaintiff (or Defendant: whichever you are), by and through his/her attorney, Peter Moor, and says:

Or, if you are representing yourself, put your name, followed by "Plaintiff (Defendant), In Propria Persona," your address, and telephone number in the box, followed by the caption, and then the opening paragraph:

NOW COMES (your name), Plaintiff (Defendant), representing him (her) self, and says:

Now, actually write out your first page.

Then the body of your petition begins.

But, before we begin writing the Petition For Custody, let's take our next session to understand the rudiments of how law works, and thus learn some ground rules for the actual writing of the Petition.

Session II:

"Statements of fact"

How does law work? Law operates by the Court (the Judge) applying the Rules of law to the "Facts" of your case: the Decision(s) that results from this procedure determines who "wins" custody. Put into a formula, the procedure would be represented thusly:

R(ules) + F(acts) = D(ecisions)

As you can imagine, without all three elements of the formula, due process of law (the 14th Amendment to the Constitution) would not exist.

What is of major importance for you to understand, is that you are the "informational" or "factual" expert in your case - not your attorney or the judge. Without your factual input your attorney will be unable to "tell your story" or formulate a winning strategy. Without you doing your job as a team member, there is no factual basis to your case, and any decision from the Court is most probably not going to be to your liking.

Now, who knows the "facts" of your case?

You do: you are the informational "expert" regarding the "facts" of your case: no one else in the world knows it better than you. The communication problem you face is how to convince the Judge that your perceptions, your "facts," are believable. How do you do this?

First, you must understand what a "statement of fact" is, and is not. Paul C. Stern, in Evaluating Social Science Research, offers his definition of a "statement of fact" which I used when I taught research for thirteen (13) years at the University of Michigan (Ann Arbor) and which I now use working with clients preparing petitions, briefs, etc., for attorneys. Here's Stern's definition of a "statement of fact:"

"Any statement that you can try to confirm or disconfirm by looking at the evidence of the senses (or sensing technology) is a statement of fact."

Here is a statement of fact from a Petition For Custody under factor "g" of the Michigan Child Custody Act:

MCLA 722.23(g) The mental and physical health of the parties involved.

"That the Defendant-wife is an admitted alcoholic."

Notice the statement doesn't say "Plaintiff believes that the Defendant-wife is an alcoholic:" that would have been a statement of belief, not a statement of fact.

The statement of fact ("the Defendant-wife is an admitted alcoholic") can be confirmed, or disconfirmed, by looking at the evidence of the senses and/or sensing technology: with this evidence, the statement becomes believable. Furthermore: to be believable, the statement of fact must be confirmed by the evidence of the senses of not only yourself, but of other witnesses as well.

For example: say the statement, above, was followed, in the Petition, by the following statements of fact:

"That the Defendant-wife is the type of alcoholic who drinks heavily everyday, that this daily drinking has occurred for the last three (3) years at several different taverns, and that there were seven (7) witnesses who have signed affidavits stating they had observed the Defendant-wife in what appeared to them to be an intoxicated state, each day, for the last three (3) years (See Exhibits "A," "B," "C," "D," "E," "F," and "G," attached)."

The statement of fact is now becoming believable because it is being confirmed by the senses of the witnesses (who may, or may not, be credible: what were they doing in those taverns observing the alcoholic wife?).

Let us say, furthermore, that the Defendant-wife had been twice arrested, in 1992, for driving under the influence of liquor ("DWOL"), had "blown" 1.8 alcohol levels both times, had earlier been twice hospitalized in 1991 for alcohol poisoning in addition to the later two DUOL arrests, and the emergency room physicians had measured blood alcohol levels of 2.6 and 2.7, and that you had assembled all of this written evidence in another Exhibit.

The 'statement of fact' would then have been confirmed not only by the sensory observations of others besides yourself (the seven witnesses, the doctors, the police), it would have been confirmed by the sensing technology of the breathalizer tests, and the sensing technology used to determine the blood alcohol levels at the emergency room.

If you did NOT have either witnesses or evidence from sensing technology the statement of fact ("The Defendant-wife is an admitted alcoholic") would have been disconfirmed, made not believable. Without such confirmation, there is no "fact," and it would be foolish to write anything about the wife's alcoholism that couldn't be proven, even if she were, in fact, an alcoholic.

If we can't prove something, if we cannot confirm our statement of fact with one or more of the five senses and/or sensing technology, in other words, we don't write it. Period.

* * * * *

Remembering that we will be sending a communication (the Petition For Custody) not only to the Judge and the Friend of the Court worker, but to our soon-to-be ex-spouses (and his/her attorney), let's apply the principles learned thus far in this session to factor "a" of the Child Custody Act, which reads:

MCLA 722.23(a) The love, affection, and other emotional ties existing between the parties involved and the child.

How can we measure such abstractions as "love, affection, and other emotional ties"? How can we create statements of fact about these vague notions that can either be confirmed or disconfirmed using one or more of the five senses (or sensing technology)?

The trick here is "emotional ties": what are "emotional ties," where do they come from?

The answer is that emotional ties are the result of shared experiences, things you have done with your child or children - with, not for (unless the child is an infant; see below). Thus our entry under "a" might include something like the following (the child in question here is two and one-half [2 1/2] years of age):

8. That the Plaintiff is a fit and proper person to have the temporary and permanent care, custody, control, maintenance and education of the minor child of the parties as a review of the eleven (11) factors of the Michigan Child Custody Act ("Best Interests of the Child," MCLA 722.23 et seq) will show, to-wit:

MCLA 722.23 (a) The love, affection, and other emotional ties existing between the parties and the child.

9. That the Plaintiff, DAVID J. SMITH, a medical doctor, was present in the delivery room for the natural childbirth of the minor child.

10. That by way of example but not limitation, there are loving emotional ties between the Plaintiff-father and the minor child, MIKE, now two and one-half (2 1/2) years of age, as a result of shared activities together, including, but not limited to: the Plaintiff has prepared meals, on a daily basis for the minor child, washed the minor child's clothing, taken the child to his pediatrician, played classic, jazz and other forms of music for the child and clapped hands together to the music. Plaintiff and the minor child go to the local park to play on the swings, to play in the sand box, climb on the wooden playground equipment and have gone to the beach together, gone visiting Plaintiff-father's mother (who lives in the same apartment complex as does the Plaintiff-father), played ball together and played with school building blocks, gone for walks together to touch leaves, trees, pebbles, rock, grass (etc.) and learn the names of same, "read" together (naming pictures), watch television together ("Sesame Street." cartoons. "Mr. Rogers," etc.), and so on.

This is from an actual Petition For Custody (the names of the Plaintiff and all other parties have been changed) and, because of the age of the child, we included a couple "doing for" items as well as "doing with" items. (Examples from this particular case, which we won, will be used throughout the remainder of this seminar.)

Notice how short, and to the point, paragraph #10, above, is: there are several reasons for this. First: the child is so young, there simply hasn't been enough time for the father and son to do many things together; second, no matter how old the child, no matter how many things the father may have actually done with the child, we have our reader's time tolerance to consider. One paragraph (approximately one full computer screen) can be easily and quickly read, making the necessary impression we want to make. Less than a full paragraph is too little; more than a full computer screen paragraph tends to lead to an impression of overkill, a rather nervous impression we do NOT want to leave.

Finally, it would be best if we had witnesses and/or video tapes showing all those activities of the father and child together at home, clapping hands to music, or in the park, although under factor "a" courts are not particularly stringent in asking for confirmation of the truth of the allegations made - but we'd better make such allegations, lest the Friend of the Court worker and the Judge be left to their fertile imaginings!

Factor "b" is a kind of companion piece to factor "a" of the Michigan Child Custody Act. Factor "b" reads:

MCLA 722.23(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

Notice that there are really two components to this factor: the question of the "capacity and disposition" of the parties to provide the child(ren) with "love affection and guidance," and the capacity and disposition of the parties to provide for the religious upbringing(s) of the child(ren).

Usually, there is no dispute between the parties regarding the religious upbringing of the child(ren). When this is the case, we merely write what follows under factor "b:"

That there is no dispute between the parties regarding the religious upbringing of the minor child(ren).

As regards the "love and affection" component, if we have done our job under factor "a" we write:

That the Plaintiff has the capacity and disposition to provide the minor child(ren) with love and affection, as above shown (factor "a," above).

Finally, there's the question of which of the parties has the "capacity and disposition" to provide the child(ren) with guidance, and this is a critical factor, requiring our utmost diligence and careful writing: the question of who can best provide guidance for the child(ren) can win (or lose) the case for us.

Some definitions are in order: in this context "capacity" means "the ability or qualifications to do something: aptitude" (Webster's College Edition); "disposition," in this context means "the power or authority to arrange, settle, or manage; control," and "an inclination or tendency" (Webster's College Edition). In other words, a person can have the "qualifications" to provide discipline merely based on the fact that they are the parent of the child(ren), but not have the necessary "inclination" to impose discipline on the child(ren) (set bedtimes, require chores, insist on the child[ren} being punctual, etc.). What is here important is what you, or our client, have taught the child how to do: how to tie their chores, how to brush their teeth, how to "mix and match" colors and dress themselves, how to become self-reliant, grownups.

Parents who do not teach their children how to do things for themselves are often what Anne E. Grizzle (Mother Love, Mother Hate: Fawcett Columbine, New York: 1988) calls "devotional" parents, parents who by "devoting" themselves to their child(ren) rob the child(ren) of learning how to be self-sufficient, deny them the right to be self-sufficient adults. The result is an "adult" who is still a child, an adult stuck to his/her mother, loving her and hating her both (there are also "devotional" fathers who do the same thing, although there appear to be fewer of them). These type of "devotional" parents have the capacity, but not the disposition, to provide their child(ren) with guidance, because this kind of parent can't say "no."

To return to the question of religious upbringing: sometimes there are situations in which this component of factor "b" becomes a significant part of the case. For example, in our case of "DAVID J. SMITH," the issue of religion was a major issue because Dr. Smith's wife was a religious zealot, almost a religious maniac. Under factor "b" in Dr. Smith's Petition For Custody, we wrote:

14. That there is a profound dispute between the parties regarding the religious upbringing of the minor child inasmuch as the Plaintiff wished to raise the minor child in virtually any Christian church (the Plaintiff was raised Presbyterian, but permitted the child to be baptized in the Catholic Church), whereas it is abundantly clear that it is the Defendant's intention to indoctrinate the minor child into the chanting and other practices of her particular religious cult.

15. That the Plaintiff has the capacity and disposition to give the minor child love affection, as above shown, and has capacity and disposition to give the child guidance inasmuch as the Plaintiff has taught the minor child, age approximately two and one-half (2 1/2), how to put his spoon in a dish, how to put food on his spoon and negotiate said into his mouth, how to put his arms through his coat sleeves, how to put his shoes on, how to brush his teeth, how to throw a ball, how to drink from a cup, how to wave "bye-bye," how to say "please," "thank you," "you're welcome," and so on.

16. That because of her obsession with her religious cult, the Defendant has shown little or no capacity and disposition to give the minor child love, affection, and guidance, and may, in fact, be psychiatrically incapable of providing said for the foreseeable future.

Often a cultist religious streak in the personality masks a deeper psychological malfunction, perhaps serious (psychotic), and would be further treated under factor "g" of the child custody act, which factor we'll get to in our sixth session.

Courts cannot decide what church we do or do not attend: our constitution separates church and state, and the church/state issue was one of the major reasons we fought our revolutionary war against Great Britain. Thus, what is really important under factor "b" is how the personalities of the parties reveal themselves in a religious context, not what their religion is, or is not.

Factor "c"

Factor "c" of the Michigan Child Custody Act reads as follows:

MCLA 722.23(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

The definitions of "capacity and disposition" we used in factor "b" apply here as well.

The importance of factor "c" in awards of custody appears too obvious to warrant much comment: what judge would award custody of child(ren) to a person who didn't have the capacity to provide the child(ren) with food, clothing, medical care and other material needs?

The answer is: it happens all the time. The Friend of the Court routinely recommends that custody go to the personal least capable of paying child support, least capable of providing the child(ren) with food, clothing, medical care and other material needs, and judges routinely rubber-stamp the Friend of the Court recommendation. Why?

Collecting child support is big business for the Friend of the Court: the FOC gets paid a percentage of every dollar they collect under a government program called "Incentive Payments to the States." These percentages are paid the FOC out of our tax dollars, and the FOC is therefore more than anxious to recommend that custody go to the parent least capable of paying support so that the FOC can collect child support from the parent most capable of paying it.

But factor "c" can also reveal the personality of the litigants. In our case of Dr. Smith, under factor "c" we wrote:

17. That the Plaintiff, a practicing medical doctor, has the capacity and disposition to provide the minor child with food, clothing, medical care and other material needs.

18. That the Defendant, who holds an M.A. degree in clinical psychology, is unemployed, having been recently fired from her position as a psychologist with the Wayne County Department of Social Services (Latino Outlook Program) for reasons unknown to Plaintiff. Defendant has been fired at, or quit, several other jobs in the Dominican Republic (Defendant's native country: Defendant is a legal citizen of the United States).

If a party has been fired from many jobs, clearly it is doubtful that they have the capacity and disposition to provide the child(ren) with food, clothing, medical care and other material needs: it would also appear - if not clearly at least highly suggestively - that a person fired from many jobs has some kind of personality disorder.

Finally, the component of factor "c" that refers to "other remedial care recognized and permitted under the laws of this state in place of medical care" is again a church/state issue protecting the right of certain religions (e.g., Christian Scientists) to practise their own form of "medicine" without interference from the government. It is possible, but not likely, that a case can be won on the basis of this component of factor "c" in an instance where the practise of a certain religion directly threatens the well-being, the "best interests," of the child.

Session IV:

Factor "d" of the Michigan Child Custody Act

Factor "d" can be an extremely critical factor in any child custody case, and for this reason an entire two hour session has been devoted to it.

Factor "d" reads:

MCLA 722.23(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

What this factor refers to is what is called "an established home environment:" if there is, in fact, an established home environment, then there's most likely a person in that environment who has been the "primary parent" for the child(ren), and that primary parent has got a very good shot at obtaining full custody of the child(ren).

What, specifically, does "length of time" mean? Generally speaking, if the child(ren) have been cared for primarily by one parent for six (6) months, there is an "established home environment," and we are under Section VII of the child custody act which requires "clear and convincing evidence" to alter this established home environment. The relevant portion of Section VII reads as follows: ("the court may")

(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered (emphasis added).

The critical elements in this section have been underlined for emphasis. Critical here is the definition of what constitutes an "established custodial environment, namely, that the child(ren) "naturally look to the custodian in that environment for guidance, discipline, the necessities of life and parental comfort," and this environment has been in existence for "an appreciable time." How much time is an "appreciable" amount of time?

In practice, an "appreciable" amount of time appears to be six (6) months. What this means is that if one of the parties accuses the other party of Sexual Child Abuse, the court will award temporary custody of the child(ren) to the accusing parent, and the investigation of the criminal charge will usually (although not always) take at least six (6) months, creating an "establish home environment" with the accusing parent, requiring "clear and convincing evidence" to alter the temporary custodial environment.

What is "clear and convincing evidence? Black's law dictionary offers the following definition(s):

Clear and convincing proof. Generally, this phrase and its numerous variations mean proof beyond a reasonable, i.e., a well-founded doubt. Some cases give a less rigorous, but somewhat uncertain, meaning, viz., more than a preponderance but less than is required in a criminal case.

Proof which should leave no reasonable doubt in the mind of the trier of facts concerning the truth of the matters at issue. In Interest of Jones, 34 III, App. 3rd 603, 340 N. E. 2d, 269, 274.

That measure of degree of proof which will produce in [the] mind of [the] trier of facts a firm belief or conviction as to allegations sought to be established; it is intermediate, being more than preponderance, but not to extent as such certainty as is required beyond reasonable doubt as in criminal cases. Fred C. Walker Agency, Inc. v Lucas, 215 Va. 535, 211 S. E. 2d 88, 92.

This is a civil law definition: a CSC charge is criminal law, and requires proof "beyond a reasonable doubt" to overcome the allegation(s). The CSC charge is often called "the atomic bomb" of child custody cases, and is extremely difficult (and expensive) to overcome, and beyond the scope of this seminar. Let's therefore go back to the meaning of an "established custodial environment" in civil law.

In the 1970's, and to a lesser extent in the early 1980's, women usually stayed home with the child(ren), men worked, and as a result women were usually the "primary parent," the primary caretaker of the child(ren), and almost invariably won custody of the child(ren). But the "mom-at-home-dad-at-work" division of labor is now true of only approximately FOUR (4%) PERCENT of parents in the United States: most moms, and most dads, have to both work. Just because a woman is a mother, in other words, doesn't automatically mean that she's the "primary parent" for the child(ren).

Let's say, however, that she is. The question is not whether or not she's at home, but rather what kind of a parent is she at home? How "stable," how "satisfactory," is this home environment that she provides, and how desirable is it that the "continuity" of this environment be maintained?

In the case of Dr. Smith, his wife had been fired from her job and, consequently, she was at home with their child: what kind of home environment was this? Under factor "d" in Dr. Smith's case, we wrote:

19. That the minor child was born in the United States and remained with the parties until the infant was approximately six (6) months of age; at approximately six (6) months of age the parties and the minor child went to visit Defendant's parents in Santa Domingo, Dominican Republic. The visit became prolonged because Defendant began psychotherapy in Santa Domingo and was unable to return to the United States until some six (6) months later, at the minor child's approximate age one (1) year. During this six (6) month period while Defendant was undergoing psychotherapy, the Plaintiff commuted between the United States and Santa Domingo on a monthly basis, for periods from seven (7) to ten (10) days. When Defendant's mother threatened to have the Defendant institutionalized, the parties returned together with the minor child to the United States in February, 1989.

20. That the Defendant provides virtually nothing stable or satisfactory to the home environment of the minor child and has never done so. It is not desirable that there be any continuity whatsoever of the environment provided for the minor child by the Defendant (ceaseless incantations, utter neglect of the household, assaultive "educational" programs); it is in the best interests of the child that the Plaintiff assume total control of the minor child's environment both at this time and permanently.

Thus, it is not as important that one parent be at home, acting as the "primary parent," as it is what the quality of that parent's care of the child(ren), in fact, was and is now.

A home environment can be "stable," but not "satisfactory," as in a case where the parent at home watches television all day, forbidding the child(ren) to play outside for fear of them being injured. Such a home environment is "stable," but not in any way "satisfactory" in that the TV parent is neglecting the developmental needs of the children to exercise, play with friends.

But there's virtually no way a home environment can be both "unstable" and "satisfactory." An unstable home environment is one in which there is abuse of alcohol or other psychotropic drugs, where there is poor sanitation, insufficient food and medical care, physical and emotional abuse of the child(ren): there is no way such a home can be deemed "satisfactory," no matter how long such an environment has been in existence.

Suppose the home environment has been long established with both husband and wife working, coming home at night after one of them picks up the child(ren) from daycare, and each and every night there are disputes between the parents - loud, screaming shouting matches - over, say, money. These arguments almost invariably occur at dinner, right in front of the child(ren): is this a stable, but "unsatisfactory," environment and, if so, so what? What kind of case can be made here?

It depends. In court the woman can say he started the fights, he can say she started the fights: and they will both probably not be believed. What we have to do is look very closely whenever there's a fight over money: who was, in fact, mismanaging the money? Can this be shown by records of bounced checks? Foreclosed mortgages? Repossessed automobiles? Often, an inability to manage money has behind it a childhood with an alcoholic parent or alcoholic parents: is that true here?

Factors "e" and "f" of the Michigan Child Custody Act

Factors "e" and "f" are as follows:

MCLA 722.23(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

MCLA 722.23(f) The moral fitness of the parties.

Let's take a look at "f" first, as it is by far the easiest of the two (2) factors to write about.

What does "moral character" mean? Morality has to do with the person's ability to distinguish between right and wrong, and to act accordingly. Thus, rather than getting into a long-winded dissertation on what is or is not what you consider "right" ideas, what you must look at very carefully is the conduct of the parties: have either of the parties ever been arrested and convicted of drunk driving? Burglary? Assault? Battery? Embezzlement? Murder? Sexual child abuse? Adultery? Have either of the parties been arrested for a felony and had the charge reduced to a misdemeanor? In other words, it is behavior, what people actually do, that counts, not philosophy.

Most of the time, either you or your client will have a felonious background (you will probably find a lot of drunk driving tickets and marijuana use): remember, the importance, under this factor, is a conviction, not an arrest (one can be arrested for anything), and you will usually write under factor "f" something like the following:

That the Plaintiff states s/he is of good moral character, makes no claims against the Defendant, and leaves Defendant to his/her strictest proofs.

Factor "e" is more complicated. Let's look at is again:

MCLA 722.23(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

How do we define the abstraction "permanence?" How do we make "permanence" measurable?

One way is to look at where the parties live: do they own, or are they rending, their home? A home that is owned is more "permanent" than one that is rented, or at least has the appearance of being more "permanent" in that it requires much more of a financial commitment than does a rented home.

Another factor is an office or business workshop at home: rarely will courts require that a home where one of the parties makes his/her living be sold.

"Permanence" in this factor, however, is modified to mean "permanence, as a family unit:" what does that mean? Black's Law Dictionary defines "family" in many ways (mother, father, children living together), one of which definitions is as follows:

When used in constitution of [a] benefit [to] society, declaring its purpose among others as that of aiding the families of members, the word means such persons as habitually reside under one roof and form one domestic circle, or such persons as are dependent on each other for support or among whom there is a legal or equitable obligation to furnish support and in its widest scope it would include all descendants of a common progenitor. Logan v St. Louis Police Relief Ass'n, Mo. App., 133 S.W.2nd, 1048, 1049, 1050.

But this somewhat awkward definition does not tell us what is meant by "family unit" in the statutory law before us: we must, therefore, define it ourselves.

"A 'family unit' is a group of two or more people who function cooperatively together to discharge the normal tasks of everyday life.

Thus, the "permanence" of the family unit has to do with how well the members of the unit function together, how well they get along with one another. If they get along well together, it is probable that they will want to stay together for the foreseeable future: the "permanence" of the family unit is measured by the love of the members of the unit for one another, and the only way that can be "proven" is essentially by their testimony.

Section "e" also connects the question of "permanence" to the "existing or proposed custodial home or homes." What does this mean? If one of the parties is now renting, and intends to purchase a home in the future, and has actually put money down on the "proposed" home, that future home has an aura of "permanence" about it - but only if cash has been paid, if there has been an actual behavior behind the words to substantiate the seriousness of the intent.

Session VI

Factor "g" of the Michigan Child Custody Act

Factor "g" is brief and straightforward:

MCLA 722.23(g) The mental and physical health of the parties involved.

The question of physical health is critical: can a parent in a wheel chair care for a child or children and, if so, precisely how is this done? Can a parent with Leukemia care for a child or children? Can parent suffering from terminal cancer care for a child or children? Can a parent suffering from arthritis care for a child or children? Can a parent with severe allergies care for a child or children? Can a parent with only one leg care for a child or children? None of these questions has easy answers, and great precision is required to argue these matters, as well as consultations with qualified physicians in these areas.

The question of "mental health" is even trickery. In Dr. Smith's case, under Section "g" we wrote:

24. That the Plaintiff avers he is in good mental and physical health and leaves Defendant to her strictest proofs.

25. That the Defendant has suffered in the past from hypo-thyroidism and goiter which have been medically treated.

26. That the Plaintiff hereby expresses his grave concern for the mental and emotional health of the Defendant inasmuch as the Defendant has:

- submerged herself in cultist activities including, but not limited to, daily incantations since approximately 1985 (after the marriage of the parties) and/or listening to tape-recordings of same

- has become obsessed with her incantations, for

preparations, and religious readings, which consume her daily attention almost totally

- has been fired from her most recent employment with the Wayne County Department of Social Services

- has shown herself incapable of being on time for any appointment, anywhere

- has shown herself incapable of managing money

- has shown herself incapable of performing normal,

everyday tasks such as grocery shopping without losing her purse or getting "lost" in the parking lost

- has shown herself virtually incapable of relating to reality in even the most rudimentary ways, inasmuch as Defendant's obsession with her religious cult appears to "block out" virtually all of reality

- has been fired from or quit every job she has had

- has yelled, uncontrollable, for hours at a time

- has been advised by her church that she seek

psychotherapy to gain control over her anti-social behaviors (See Exhibit "P" attached)

This catalogue of horrors did the trick in Dr. Smith's case: the judge granted him an "Ex Parte" order of temporary custody, which has since been modified to permanent custody.

In Dr. Smith's case, the "mental health" component of factor "g" was relatively simple to write about: in other cases, it's not quite so easy.

For example: is a person who is a reclusive bird watcher mentally ill? Is a person who likes to "cross dress" in the privacy of his/her (usually his) home mentally ill? Is a person who smokes cigarettes and cigars mentally ill? Is a person who is addicted to "soap box operas" mentally ill? Is a person who is a fanatic football fan every weekend mentally ill? Is a compulsive gambler mentally ill? What are the differences between a neurotic person and a psychotic person, and how does one tell the difference? And it goes on and on.

The only person who can make such judgments is a professional, a licensed Ph.D. psychotherapist or an MD psychiatrist, not the writer of a Petition For Custody. MCLA 722.27(d) provides that the court may:

(d) Utilize the community resources in behavioral sciences and other professions in the investigation and study of custody disputes and consider their recommendations for the resolution of the disputes.

If we had a genuine concern about the mental health of one of the parties, we would request that there be psychological evaluations done of all the parties to the custody dispute, and courts routinely grant such requests.

Session VII

Factors "h," "i" and "j" of the Michigan Child Custody Act

Factor "h" has to do with the behaviors of the child(ren):

MCLA 722.23(h) The home, school, and community record of the child.

If the child(ren) is/are performing poorly in school, if they have had behavioral problems in school and in the community, it is most likely that there is something wrong at home. If there are no provable problems, the converse is probably true.

Schools are required under the "Federal Education and Privacy Act" to furnish school documents to any parent who requests them if (a) the child(ren) are enrolled in public schools "even slightly" supported by the United States government, and (b) so long as there is no court order preventing the parent from seeing the school records of his/her child(ren). (Rheologies schools are a different matter, and it is sometimes extremely difficult, if not impossible, to receive school records from them if you are a non-custodial parent).

Factor "i" is problematic:

MCLA 722.23(i) The preference of the child, if the court deems the child to be of sufficient age to express preference.

"The court" means "the judge." Judges in Michigan are required to ascertain the preference of child(ren) by interviewing them, off the record, in the judge's chambers. The meeting is entirely confidential and is sometimes tape-recorded where the judge fears that the child(ren) may have been "brain-washed" in a hotly contested child custody case.

There are at least two (2) problems we see with factor "i:" one, the judge most likely has had absolutely no training in either developmental or clinical psychology, and two, what does "of sufficient age" mean? In other states there are laws that specify at which age a child can choose where and with whom he/she wishes to lives: not so in Michigan law.

The Court of Appeals has held that a lower court judge erred in failing to ascertain the preferences of two six (6) year-old twins, but it is unlikely that any court would take the preferences of six (6) year olds very seriously in most cases. The rule of thumb here is: the older the child, the heavier the weight given to any preference expressed, and, in Michigan, a fourteen (14) year-old person can essentially dictate to the court where he/she wishes to live. "If we don't let them live where they want to live," judges say, "they talk with their feet," that is, run away from home.

III

Factor "j" is as follows:

MCLA 722.23 (j) The willingness and ability to each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

If the case is just beginning, and if the parties remain living together, separately (not sleeping or having sex together), there will usually be no visitation denials or disputes to write about. In Dr. Smith's case, we wrote:

29. That the parties continue to reside together, separately, in the marital apartment, and there have been no visitations disputes.

However, Dr. Smith's wife was being anything but cooperative:

30. That the Defendant has called the Southfield Police three (3) times since approximately March 19, 1989, each time falsely accusing Plaintiff of spouse abuse. There have been no charges filed and no arrests. Plaintiff believes it to be in the best interest of the minor child that the Defendant be removed from the marital apartment, either voluntarily or by the court.

What would Dr, Smith do if he were awarded custody?

31. That should the Plaintiff prevail in this cause, Plaintiff would facilitate and encourage a close and continuing parent-child relationship between the Defendant and the minor child by encouraging liberal, supervised visitations between Defendant and the minor child, until such time as Defendant was able to show to the court that her mental illness had been medically treated and brought under control to ensure the safety of the minor child while in Defendant's control.

Finally, factor "k:"

MCLA 722,23 (k) Any other factor considered by the court to be relevant to a particular child custody dispute.

This is a grab-bag factor. In Dr. Smith's case we wrote:

32. That the Plaintiff's mother lives in the same apartment complex as does the Plaintiff, and is available for child care. The Plaintiff's sister, who has a ten (10) year old son, is also available for child care, and Plaintiff's contacts as a physician in Oakwood Hospital (and elsewhere) provide him with an extensive source of competent, professional day-care providers and day-care facilities both across the street from the hospital and elsewhere.

Next time we'll discuss the final, "relief" section of the Petition For Custody.

Session VIII

The "Relief" Section of the Petition

In the "relief," or final section of the Petition For Custody we ask the Court to give us some things. First, we ask for custody:

WHEREFORE, Plaintiff(Defendant) prays:

(A) That the Defendant be awarded the temporary care, custody, control, education and maintenance of the minor child(ren).

or joint custody:

(A) That pursuant to MCLA 722.26a the parties be awarded the temporary Joint Physical and Legal Custody of the minor child(ren), pending final adjudication of this cause.

or we ask that the preceding court order be modified:

(A) That the Judgment of Divorce be modified and the temporary and permanent care, custody, control, education and maintenance of the minor child(ren) be awarded the Plaintiff.

we ask that attorney fees be borne separately:

(B) That attorney fees be borne separately.

we ask that we be paid child support:

(C) That there be a Friend of the Court investigation and Plaintiff be ordered to pay child support according to his/her ability to pay and the needs of the minor child(ren).

or we ask that there be psychological evaluations:

(D) That pursuant to MCLA 722.27(d) there be psychological evaluations of the parties, Plaintiff and Defendant to be individually responsible for the costs of their individual evaluations and conjointly responsible for the costs of the evaluations of the minor children, the domicile of said minor child(ren) to be with the Defendant during the pendancy of said evaluations, copies of the written evaluations to be provided the attorneys for the parties and this Honorable Court, or until further order of the court.

we say that we are telling the truth:

I DECLARE UNDER PENALTY OF PERJURY THAT THE STATEMENTS ABOVE MADE ARE TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.

and finally, we bow to the judge's power:

(E) That Your Plaintiff may have such other and further relief in the premises as shall be agreeable to equity and good conscience.

And then we sign the Petition at the bottom.

And pray.

DR. SMITH'S ENTIRE PETITION FOR CUSTODY

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

DAVID J. SMITH,

Plaintiff,

vs Case No:

HON.

MARIE. SMITH,

Defendant.

_____________________________/

THOMAS G. JONES (P-22198)

Attorney for Plaintiff

6743 Arbor Park Road, Suite 17

Waterford, Michigan 48054

(313) 666-9000

_____________________________/

PETITION FOR CUSTODY

NOW COMES Plaintiff, DAVID J. SMITH, by and through his attorney, THOMAS G. JONES and states:

1. That the parties to this cause were married the 18th day of December, 1989.

2. That there has been one (1) child born to the parties, MICHAEL ALLEN SMITH (dob 01/19/88).

3. That on or about the 27th day of March, 1989, Plaintiff filed for and obtained an Ex-Parte Interim Order granting him the care, custody, maintenance and education of the minor child of the parties.

4. That as of the date of this Petition Defendant has filed no objections to the above mentioned Ex-Parte Order.

5. That the parties remain living together, separately, since the filing of the above mentioned Ex-Parte Order.

6. That the Defendant is a member of "The Church Universal and Triumphant" a religious sect based in Livingston, Montana. Said Sect appears to require its practitioners to recite "chants" from two (2) to eight (8) hours per day, in a monotone (both English and apparently Chinese). A typical section of said chants, in English, includes, but is not limited to, the following:

Blaze the light of the Darjeeling [six] Council and Saint Germain into the very core and root of

that problem! Burn thought and root out all

hate and hate creation.

Bind then all opposition to the activities of

the Great White Brotherhood upon earth!

Bind then all opposition to the messengers and chelas [sic] of the ascender [sic] masters!

7. That while devoting herself to the recitation of her chants, daily, for hours, the Defendant has neglected the daily care and nurturing of the minor child, DAVID, age two and one-half (2 1/2) years, and her household duties (See Exhibits "A" through "N" attached).

MCLA 722.23 (a) The love, affection, and other emotional ties existing between the parties and the child.

9. That the Plaintiff, DAVID J. SMITH, a medical doctor, was present in the delivery room for the natural childbirth of the minor child.

10. That during the delivery procedure the Defendant read her religious prayers throughout labor and the final delivery of the infant and refused to physically embrace her child following the delivery. Plaintiff cut the umbilical cord, cuddled the child and preformed the post-delivery medical examination.

11. That while the Defendant produced ample milk for the minor child the Defendant was totally incapable of breast-feeding the minor child. There was no strictly medical reason found for this biological incapacity. Both parties bottle-fed (and bottle-feed as of the date of this petition) the minor child, as well as feed the minor child baby food, dress, change the infant; the Plaintiff alone plays with the minor child (the Defendant is doing her chants).

12. That the Plaintiff has prepared meals, on a daily basis for the minor child, washed the minor child's clothing, taken the child to his pediatrician, played classic, jazz and other forms of music for the child and clapped hands together. Plaintiff and the minor child go to the local park to play on the swings, to play in the sand box, climb on the wooden playground equipment and have gone to the beach together, gone visiting Plaintiff's mother (who lives in the same apartment complex as does the Plaintiff), played ball together and played with school building blocks, gone for walks together to touch leaves, trees, pebbles, rock, grass (etc.) and learn the names of same, "read" together (naming pictures), watch television together ("Sesame Street." cartoons. "Mr. Rogers," etc.), and so on.

13. That the Defendant spends her days singing and/or listening to her "chants," and has rarely, if ever, played with the infant. Since the minor child was approximately eleven (11) months of age, the Defendant has been attempting to teach the child word-recognition and mathematics using "flash cards" on a periodic (4-5 times daily) basis to cause, and causing the minor child great emotional distress (the minor child responds to Defendant's onslaughts with tears).

MCLA 722.23 (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

15. That the Plaintiff has the capacity and disposition to give the minor child love affection, as above shown, and has capacity and disposition to give the child guidance inasmuch as the Plaintiff has taught the minor child, age approximately two and one-half (2 1/2), how to put his spoon in a dish, how to put food on his spoon and negotiate said into his mouth, how to put his arms through coat sleeves, how to (almost) put his shoes on, how to brush his teeth, how to throw a ball, how to drink from a cup, how to wave "bye-bye" and so on.

MCLA 722.23 (c) The capacity and disposition to the parties involved to provide the child with food, clothing, medical care or other medical care recognized and permitted under the laws of this state in plea of medical care, and other material needs.

17. That the Plaintiff, a practicing medical doctor, has the capacity and disposition to provide the minor child with food, clothing, medical care and other material needs.

18. That the Defendant, who holds an M.A. degree in clinical psychology, is unemployed having been recently fired from her position as a psychologist with the Wayne County Department of Social Services (Latino Outlook Program) for reasons unknown to Plaintiff. Defendant has been fired at, or quit, several other jobs in the Dominican Republic (Defendant's native country: Defendant is a legal citizen of the United States).

MCLA 722.23 (d) The length of time the child has lived in a stable satisfactory environment, and desirability of maintaining continuity.

MCLA 722.23 (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

21. That should the Defendant choose to depart from the present residence of the parties, Plaintiff could remain in said residence, a 820 sq. ft. two-bedroom apartment in Southfield, Michigan; however, should the Defendant refuse to depart from said residence, the Plaintiff proposes to relocate to a new residence in Farmington Hills, Michigan.

22. That the Defendant has sought application to relocate at "The Inner Retreat" Box A, Corwin Springs, Montana 59021, apparently some sort of volunteer ranch service for members of Defendant's cult. (See Exhibit "O" attached).

MCLA 722.23 (f) The moral fitness of the parties involved.

23. That the Plaintiff avers he is of good moral character, makes no claims against the Defendant and leaves her to her strictest proofs.

MCLA 722.23 (g) The mental and physical health of the parties involved.

24. That the Plaintiff avers he is in good mental and physical health and leaves Defendant to her strictest proofs.

25. That the Defendant has suffered in the past from hypo-thyroidism and goiter which have been medically treated.

26. That the Plaintiff hereby expresses his grave concern for the mental and emotional health of the Defendant inasmuch as the Defendant has:

- submerged herself in cultist activities including, but not limited to, daily incantations since approximately 1985 (after the marriage of the parties) and/or listening to tape-recordings of same

- has become obsessed with her incantations, for

preparations, and religious readings, which consume her daily attention almost totally

- has been fired from her most recent employment with the Wayne County Department of Social Services

- has shown herself incapable of being on time for any appointment, anywhere

- has shown herself incapable of managing money

- has shown herself incapable of preforming normal,

everyday tasks such as grocery shopping without losing her purse or getting "lost" in the parking lost

- has been fired from or quit every job she has had

- has yelled, uncontrollable, for hours at a time

- has been advised by her church that she seek

psychotherapy to gain control over her anti-social behaviors (See Exhibit "P" attached)

MCLA 722.23 (h) The home, school and community record of the child.

27. N/A, as the minor child, age two and one-half (2 1/2) years, has not yet complied any such records.

MCLA 722.23 (i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

28. N/A, as the minor child, age two and one-half (1) years, is not now of sufficient age to express a reasonable preference.

MCLA 722.23 (j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

29. That the parties continue to reside together, separately, in the marital apartment, and there have been no visitation disputes. Plaintiff works approximately fifteen (15) days per month, and is, therefore, available to care for the minor child, full-time, fifteen days per month. Plaintiff is available every night of the month to care for the child, and has so done. Defendant cares for the infant when Plaintiff works; however, the quality of Defendant's child-care is at best compromised by Defendant's obsession with her religious/cult incantations and other rituals, thus effectively depriving the infant of a full-time caretaker during those times when the Plaintiff is at work as a medical doctor.

MCLA 722.23 (k) Any other factor considered by the court to be relevant to a particular child custody dispute.

WHEREFORE, Plaintiff-Petitioner prays:

(A) That the temporary and permanent care, custody, control, maintenance and education of the minor child be awarded the Plaintiff.

(B) That there be a Friend of the Court investigation and Defendant be ordered to pay child support according to the needs of the child and Defendant's ability to pay.

(D) That all visitation between the Defendant and the minor child be supervised by the Plaintiff and/or his agents temporarily and permanently, or until such time Defendant can show competent psychiatric evidence that she is psychiatrically able to care for the minor child during her visitations with said.

OR, IN THE ALTERNATIVE

(E) That pursuant to MCLA 722.27(d), the parties undergo psychiatric evaluations, costs of their individual evaluations to be borne by the parties themselves and costs of the evaluations of the minor child, if any, to be borne conjointly by the parties, residence of the minor child to be with Plaintiff during the course of said evaluations (or with both parties as is the status quo), copies of the written evaluations to be provided the attorneys for the parties and this Honorable Court, or until further order of this Court.

(F) That Plaintiff may have such other and further relief in the premises as shall be agreeable to equity and good conscience.

I DECLARE UNDER PENALTY OF PERJURY THAT THE STATEMENTS ABOVE MADE ARE TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF.

___________________________________

David J. Smith, Plaintiff