FIGHTING FOR THEIR LIVES

Before the mythical champions of Fatherlove-before Mr. Mom, before Ted Kramer, even before Garp-dads were chiefs to their Indian princesses and coaches on the soccer team, but they weren’t moms. Divorced men who sought custody of their children were rare; those who received it, even more so. One friend was leveled by his lawyer when he inquired about his chances in a custody suit: “If you can’t prove that she’s doing tricks on one side and dealing dope on the other, you don’t have a prayer.” For a custody lawyer, that’s puttin’ it real polite.

Child custody fights are brutal. That much hasn’t changed. But what has developed is a trend toward fathers seeking custody and a new willingness on the part of judges and juries to give them a fair shot. That children and mothers belong together is no longer legally inviolate. A decade ago, the Texas Family Code was rewritten, and the custody law became sex-neuter. The official rewording emphasizes the “best interests of the child.” It’s up to the courts to decide in whose hands those best interests lie. “The Texas Legislature, in its wisdom, decided that divorce had become too nasty- too ’detective in a van,’ ” says forensic psychologist Dr. Robert Gordon, “so it came up with no-fault divorce, and the effect was to channel all that hostility into custody fights.”

The change in the code had little immediate impact on how the law was administered, custody attorneys say. But gradually, as parenting roles evolved and the science of trying custody cases was refined, the winds began to shift. In cases that go to trial today, a father is just as likely to win-some say more so-as a mother.

But the statistics are sketchy and can be misleading. Only about 10 percent of divorce-related custody cases are contested in court-the lion’s share are settled. In Dallas County, there are no records of how many verdicts go to fathers. But family court judges and lawyers estimate that dads win well over half the time. “You have to understand,” says family attorney Donald R. Smith, “that a good lawyer won’t put a father in court unless he’s damn sure he’s got a great case.”

Making a great case out of a good daddy is what custody attorneys are paid royally to do. But it is the public’s perception of parenting that has accounted for the sweeping changes that have affected custody law. The image of Dustin Hoffman botching the French toast in the 1979 movie Kramer vs. Kramer did much to further the cause of single fatherhood. Kramer gave the hard-nosed-businessman-turned-nurturing-daddy a grass-roots validity. His impact was sure and swift: Domestic Relations Judge Linda Thomas monitored the custody cases in her court for several months following the release of the film and found that every jury verdict had gone to the father.

Actually, the groundwork had been laid in previous years by the push toward women’s and men’s equal rights. In no other consequence of life have men suffered more discrimination than in divorce. A breakup in a man’s marriage almost always meant a loss in the day-to-day involvement with his kids. Unless there was some overwhelming evidence that the mother was unfit, the father was advised to pick up the pieces and start a new life.

But once we began to demand that Daddy be present in the delivery room and on hand for the 2 a.m. feeding, it hardly seemed fair to automatically relegate him, post-divorce, to odd weekends and rotating holidays. In families where both Mom and Dad worked-a new norm-neither parent had the odds-on advantage going in. Fathers who had had hands-on participation in their children’s lives began to stand up to the system and demand that they be counted as parents, too. Some of them were.

Others found an inbred bias toward mothers that was too powerful to overcome. That prejudice still exists. “Anybody who tells you there’s flat equality is crazy,” says Smith. Mike McCurley, the custody lawyer for Koons, Rasor, Fuller & McCurley, agrees: “If custody cases are on a l-to-10, you can count on spotting two points to Mama when you go in. But nothing is insurmountable. There’s nothing in a custody case that’s insurmountable.”

For a father to win a custody battle, he first has to wage a war. That means hiring the toughest, most tenacious custody lawyer he can find (see WINNING, next page). Or correct that to read finding the toughest, most tenacious custody lawyer he can afford. Because if there’s one inalterable fact about a custody fight, it’s that it’s going to cost a fortune. The big guns (none of whom admit to losing more than one case) charge big bucks: a $10,000 to $25,000 prepayment just to walk in the door and upwards of $250 an hour when that trickles out.

Assuming that a father has that kind of pocket change, he’s still not in the door. Most successful custody attorneys screen their potential clients with a piercing eye. What they hope to determine up front is a father’s motive in requesting custody of his kids. “Basically, there are three types of fathers who might walk in your door,” says Smith. “First, there’s the husband who feels he’s been wronged-maybe his wife was an adulterer-and he wants to file for custody as a negotiating tool in the property settlement. Type Two is the guy who sincerely wants some say in how his children are raised and more time than the routine visitation order allows-but on scrutiny, he really doesn’t want the full-time responsibility. We don’t take Type One as clients, and we won’t file a custody suit for Type Two. But with Type Three-a good father who wants his kids for the right reasons-we’re dead serious about it. We don’t play games with kids.”

Lawyers limit the number of clients for another reason: The cases are so time-consuming and psychologically draining that it isn’t possible to do more than a few a year. “Custody cases take a toll on your body,” says lawyer John Withers. “Every time I do one, I get backaches and tension headaches. It’s the hardest law on the books.”

Not only are the cases emotionally wrenching, they require an inordinate amount of a trial lawyer’s time. Unlike less feverish legal contests in which an assistant can hand over a stack of depositions the day before the trial, a custody case requires the full attention of the head honcho for a period of some six to nine months-perhaps an entire year. “There are three keys to winning a custody suit,” says Ike Vanden Eykel, a lawyer whose reputation is that of the city’s leading father-advocate, “preparation, hard work and preparation.”

The first task is to carve out the theory of the case, the hook that Dad will hang his hat on. If there’s no obvious theme-the biggies are abuse and neglect, gross sexual misconduct, alcoholism or drug abuse-the digging begins. In most cases, it starts with some serious soul-searching on the part of the father.

“The first thing I do is ask a father to compile four lists,” attorney Charles Robertson explains. “One for his good points, his bad points, her good points and her bad points. What you have to look at is, does he have the parenting skills now? And if not, can he acquire them in sufficient measure to sell his case to a jury?”

Robertson puts his clients through a rigorous regime; reading child development literature (and writing book reports), attending lectures and courses, visiting every adult in the child’s life-teachers, pediatricians, day-care workers, baby-sitters, neighbors. He has fathers map out a plan for the children’s lives-day care, soccer practice, ballet lessons, etc. At the end of what amounts to a boot camp for fatherhood, Dad has amassed a thick custody workbook and, presumably, has upgraded his parenting skills. “I want him to come out knowing that one of his kid’s feet is size 5 1/2, and the other is size 6.” Smith hits the bottom line hard: “Basically, custody lawyers are in the business of packaging parents.”

But even the best lawyers seldom rely on their judgment alone. Most ally themselves with a battery of experts whose evaluations may or may not be used as testimony in a trial. The professional most often called upon is the psychologist, who is assigned to meet with the client, the client’s children and perhaps even the estranged wife. What does he look for? Dr. Robert Gordon says that he attempts to appraise a father’s emotional status, parenting skills and attitudes, and to search for hidden agendas or signs of mental stress. He may rely on simply observing a younger child-say, one under 4-but may try to draw out an older child through conversation, drawings or games. A psychiatrist may be called when there’s suspicion of a problem in either parent or child. Says Smith, “Basically, psychologists are your testers, and psychiatrists are your analyzers.” Occasionally, Smith says, the more indirect probing involved in hypnotherapy can be useful if, for example, he suspects that a client isn’t being truthful or sincerely cannot remember an event. “We may get wind of some dynamite evidence the other side has, and my client honestly will not be able to recall what it might be-like if a guy went in to get a beer, and the kid fell in the swimming pool. In that case, one of those deep trances can be very effective. We tell our clients that we need to know all the dirt. There’s very little I can’t deal with in a courtroom-if I know about it in advance.”

What happens when a client shells out good money for a report that says he’s basically a bad guy? Simple, say attorneys. They either ditch the client (or convince him to settle), or they ditch the expert and go for a second opinion. “The good psychologists,” says Vanden Eykel, “can’t be bought and sold.”

In many contested cases, a judge will order an evaluation by the county’s Family Court Services. Trained counselors, often operating under severe time restraints, assess “a family’s dynamics” by interviewing the couple, the children and any other adults who have been closely involved in the children’s lives. They look at family background, parental stability and the individual needs of the children. What they don’t do is ask the child which parent he prefers. “Ten times out of 10, a child’s first preference is for Mommy and Daddy to stay together,” says counselor Flo Whinery. “But we never ask them to choose between Mommy and Daddy. It’s too much of a guilt burden, and besides, it’s dishonest. It presumes that they have the authority to make that choice-and they don’t.” One important criteria is either parent’s willingness to allow the other access to the child. Says administrator Mary Monroe, “If a parent, or even a grandparent, doesn’t want the other side to have contact with the kids, it may hurt them.” The recommendation handed down from a court-ordered counselor can pull a lot of weight with a judge or jury, according to some attorneys, because it carries a “big club of objectivity.”

Another expert who frequently appears on the scene of a custody trial is the private investigator. A detective may be assigned the relatively innocuous task of charting Mama’s comings and goings to “see what makes her tick.” Or he may be hired with the intent of proving a suspected sexual foray. “I probably use private detectives more than any other lawyer in town,” McCurley says. “A lot of litigants can’t stand the pressure that mounts before a custody trial. Sometimes I use that just hoping they’ll cave in.”

If an expert can provide courtroom testimony that will bolster a father’s cause, then, obviously, the lawyer will put him on the stand. But if the findings are of dubious value, the expert will be held at bay “in consultancy.” Before a recent change in the Texas Rules of Civil Procedure, attorneys could deep-six any findings that were negative. If queried, lawyers were required only to apprise the other side of experts expected to testify. Obviously, anyone with dirt to throw wouldn’t be invited to the trial. But as of April 1 of this year, attorneys must offer any professional findings acquired.

The amount of time devoted to a case is basically dependent on how much money a client has to spend. “Unfortunately, there’s rarely a day,” says McCurley, “when you can look up and say, ’Okay-we’ve got her. Now let’s go.’ ” But if hard work is essential to a successful custody suit, it is the skill of the trial attorney that will make or break a case. Custody trials, with their inherent emotionalism, may be the most “loaded” of legal battles. Everyone from the bailiff to the jurors can personally identify with a custody fight. Says Vanden Eykel, “I tell my clients that we’re on stage from the moment we step out of the car.”

The sharpest lawyers put their strategy in motion as early as the temporary hearing- when a judge or “master” decides who will have custody until the trial. “The tack I like to take is to ask for equal time,” says Robertson. “Let her take six weeks and him six weeks. That way, you can pretty well wash out the phonies. The guys who are doing it to hurt their wives tend to fade away.” More and more, masters and judges are assigning temporary joint custody as a matter of course. It saves the time of hearing the same evidence twice, and it has the added benefit of allowing each parent to perfect his parenting skills prior to the trial.

A lawyer has the option of trying a custody case before a judge or jury. If there is any point on which the top custody attorneys resound in unison, it is this: When representing a father, you virtually always request a jury trial. Family lawyers will tell you that Dallas’ Domestic Relations bench is generally unbiased and fair. But in the next breath, they’ll say there’s not a judge on it who they’d put a father in front of. Presumably, Dad’s best shot is with 12 ordinary folks. And in custody cases, a jury’s verdict is binding.

The selection of those jurors is crucial- perhaps more so than in other types of cases-because the stakes are so high and the players so real. The gamesmanship involved in interviewing and striking jurors approaches a sociological science. “What I do is go in with an optimum juror,” Vanden Eykel explains. “For instance, a Protestant female with a college education who’s between the ages of 40 and 59, married with at least one child. Then you measure all the candidates against that ideal. The trick is to make the other side take its six strikes, and save your own for the ones that will hurt you the most. Sometimes I’ll even take a psychic with me to watch how the jurors react.” McCurley agrees: “More work goes into selecting the jury than any other single process. I’ve been working for 10 years with a psychologist on a set of premeditated questions. The standard ’Where were you bom?’ won’t cut it.”

Once the jury is seated and the opening arguments begin, “then it’s war,” McCurley says. “Before that, everything’s real nice. But that’s when we let go with all our guns.” The side that goes first (always the petitioner-the side that filed the suit) has the advantage of throwing its contentions and allegations in front of the jury while the trial is fresh. Says McCurley, “Research shows that juries remember what they hear first, most and last.”

“If you asked me what a custody trial was like 10 years ago,” says Don Smith, “I’d have said a knock-down, drag-out, go-for-the-jugular brawl. If you ask me what a custody trial is like now, I’d say it’s a very expensive, very sophisticated knock-down, drag-out, go-for-the-jugular brawl.” Ostensibly at the core of a custody suit is the goal of choosing the individual with better parenting skills. In theory, the trend is toward building the client up rather than tearing the opponent down. “Actually, it’s a combination of the two,” says Robertson. “But saying bad things about her is by far the secondary strategy. It just doesn’t go down that well.”

But not all attorneys agree. “I don’t think it’s a contest in positive parenting,” Smith says. “When you get a guy who’s been devoting himself to work, to building a business, he doesn’t have a positive parenting background. You can’t put him up against that woman on positive parenting-you’d get stomped in the dirt. It’s not even enough to show he’s just as able as Mama. That won’t buy it. Either Dad’s far superior, or there’s something wrong with her.”

Where Daddy does have an advantage in the majority of cases is in the area of economics. More often than not, his income will outstrip hers. But, surprisingly perhaps, juries don’t put much stock in that. And a lawyer who trumps up the father as the better provider can expect to get socked with heavy-duty child support if he should lose.

A custody trial will see a parade of witnesses: the experts, the “grunts and groans” (“I see Rob all the time at the playground, and he seems to be a model father”) and fact witnesses who are called in to verify certain events. “The object is to turn every witness into something positive for your side,” Vanden Eykel says. “Say they spring a surprise witness on you that your client has never laid eyes on. No matter what he testifies, you follow up with something like, ’Now, Mr. So-and-So, do you even know my client here? No? Then you don’t have anything negative to say about his parenting skills, do you? No? No further questions.’”

Experienced trial attorneys have all sorts of quirky little strategies up their sleeves. Some seem quite obvious-like knowing when to stop questioning a witness. “You’d be amazed,” says Vanden Eykel, “how many lawyers don’t know when to sit down.” Other tricks-such as a favorite McCurley ploy-are more subtle: “If I know the other side has evidence they’re about to kill me with, I’ll pass out a whole bunch of photographs for the jury to look at and pass around. Hopefully, they’ll be distracted.”

Notably absent from the courtroom-at least in most cases-are the children. Jurors see photographs of the kids, video movies of the kids, drawings by the kids and any other evidence of attachment, but rarely does a lawyer put a child on the stand. An exception might be if the child is older and expresses a strong preference for one parent. Such a case may also be tried in front of a judge. Most family judges like to talk candidly in their chambers with children involved in custody disputes. According to the Family Code, the wishes of a son or daughter aged 14 or over must be honored. According to Vanden Eykel, a case “where you’ve got a kid that you want a judge to hear is a rare exception when you might not opt for a jury.”

Other than a certain reluctance to have children in the courtroom, there seem to be no holds barred. Cross-examinations of witnesses can and often do deteriorate to outright viciousness. “There are no honorable mentions in custody,” McCurley is fond of saying. “You either win or you lose.” The tougher lawyers will stop at nothing to make the other side look bad. If Mama has been fooling around, you can bet that all the sordid details of her indiscretion will be revealed. But sexual misconduct is not automatically the kiss of death. “If a client comes to me with an indignant report of his wife’s philanderings,” says Smith, “I’ll agree with him: ’Pal, she’s a lousy wife.’ But that doesn’t automatically make her a lousy mother. The key is, did her affair affect the lives of the kids?”



GIVEN THE BRUTALITY-not to mention the cost-of a custody fight, it’s a wonder that even 10 percent of cases ever make it that far. The issue of children can take on life or death proportions in the heat of a bitter divorce. But more than one father has confronted the reality and turned the other cheek. Are there alternatives for him?

The most talked-about compromise in recent years is joint custody, an arrangement whereby both parents share in the decision-making and the daily lives of their children. Contrary to popular thought, joint custody is not necessarily one week at his house and one week at hers. Some couples who are co-managing conservators (as they are legally dubbed in Texas) have, in reality, one parent with custody and very liberal access for the other. The distinction becomes critical when there are major decisions to be made: surgery, a choice of schools, a move out of state. Each parent has an equal voice.

In Texas, joint custody cannot be ordered by the court; a couple must agree to it on their own. In a divorce without acrimony, such a pact is plausible. But often the wounds are too fresh to permit a rational, workable, cooperative plan. Behavioral studies strongly suggest that the majority of children both desire and need the continued love and support of both parents. In families where it can work, it is a beautiful solution. But, as Vanden Eykel says, “Joint custody is like a miniskirt. It looks great on some people and ridiculous on others.”

The issue of joint custody has become something of a political hot potato among judges, lawyers, legislators and a group called Texas Fathers for Equal Rights (TFER). An organization that is in name educational but in fact a vocal lobbying group, TFER has argued for reforms in the writing of visitation orders, for the removal of a statute that would allow a man to be thrown out of his home without anyone having to show cause, and against the garnishment of wages for non-compliance in child support. The fathers in TFER are fervently in favor of joint custody, and they insist that a couple’s relationship need not be cozy for it to work. Says Larry Stogner, the president of the Dallas chapter of TFER, “The courts want to maintain stability for a child. But what is stability? A room in a house or the fact that both parents love him?”

If there is one message that custody professionals hammer home, it’s that any agreement a couple can come to on its own will benefit the family in the long run. Family Court counselors and private groups now offer mediation services to further that goal. Basically, mediation can be defined as free-flowing compromise with an objective referee. Says counselor Linda Hahn, “A couple is truly in the best position to work out a plan for their children. They know them; we don’t.”

Both legal alternatives are so new that family professionals are still studying the pros and cons. A certain amount of resistance has been offered by the “old school,” and it is generally conceded that any substantive change in Texas is unlikely. One consequence that has come from all of the upheaval in custody is an across-the-board liberalization of the standard visitation order. Nearly all the courts agree that the so-called “Six-Flags Syndrome” benefits neither parent nor child. But we are far from the cutting edge of social change. In some states (namely California), litigants automatically assume the burden of proving why joint custody won’t work. Mediated settlements are commonplace. But Texas seems in little danger of following too rapidly in the West Coast’s lead. If joint custody is to be written into law here, it’s more likely to be as simply another option at the judge’s discretion.

But neither is it probable that the trend toward fathers seeking and gaining custody will be reversed. If a generation of dads raised without nurturing-father role models has refused to take discrimination lying down, what changes will their sons demand? The custody trial can never be a mainstream solution, if for no other reason than its prohibitive cost. Is it fair that the expense of a custody battle is beyond a man of ordinary means? For that matter, is it fair that a wealthy man-perhaps with ignoble intent-might wrest his children from their mother simply because he could afford the attorney with greater skill? Somehow, a more rational means of settlement must be devised and generally accepted. If men can, indeed, be mothers too, there ought to be a less venomous way to prove it.