Law, Family Law and Rules of Evidence: How it Actually Works (Hypothetical Example)
Let us suppose that a married couple is going through a divorce, and that they have one daughter who is a minor. Let us further suppose that this couple is engaged in a custody dispute wherein both parents are asking the court to award them primary custody of their daughter.
In our hypothetical example let us further imagine that the couple is separated and that the father has moved into an apartment, and that the daughter remains with the mother in the marital residence. This is a very common “fact pattern” that is seen routinely all over this country.
Let us further suppose that father is accusing the mother of preventing him from seeing their daughter, and that he has not seen her for some fairly significant period of time, let us say, two weeks. Let us further suppose that the mother admits that she has not encouraged their daughter’s time with her father, due to the daughter having told her that she is “uncomfortable” being alone with her father.
This hint of inappropriate sexual innuendo is not presented as a frank allegation of sexual misconduct, but its hinting is causing concern for the mother. She presents herself as acting protectively of her daughter. Let us further suppose that the mother alleges that the father has never been very involved in their daughter’s life and that as their daughter approached puberty, that the father behaved in vaguely inappropriate ways when in the company of their daughter and her friends.
Under such circumstances, it would not be surprising to imagine that these parents are very upset with each other, mistrustful and accusatory.
As a further independent variable let us also assume that an angry telephone conversation had occurred between the mother and the father wherein the father claimed that the mother told him that she knew that he had not done anything sexually inappropriate with their daughter, and that their daughter had made no such comment, but that she, the mother, was passively promoting this veiled allegation of sexual inappropriateness, and that she was doing this as an expression of her feelings of revenge, as well as being a tool for her to gain advantage in their custody dispute.
Let us further assume that the father had made an audio recording of this very conversation without the mother’s knowledge. Finally, let us assume that this occurred in a state, such as Florida, where the recording of telephone conversations without the awareness and consent of the person being recorded is illegal.
With this collection of facts and factors, let us now imagine that this couple is now in court, in front of a Judge who has been made aware of what is described above.
The attorney for the father makes his case for the father, alleging that the mother is attempting to keep their daughter from the father by creating a false allegation of his having been somehow sexually inappropriate with her. The father’s attorney argues that the mother is attempting to alienate their daughter from her father, and that all of this can be proven by the court listening to this illegally recorded tape.
The attorney for the mother then jumps up and expresses outrage at these allegations, and recommends that the father be prosecuted for the criminal activity of recording a telephone conversation without the mother’s awareness or consent. The mother’s lawyer then argues that the father has never been very close to the daughter, and that his now unskilled attempts at trying to get close to her has had inappropriate qualities that have alarmed the child. He also reminds the judge that since any such alleged recording is clearly illegal, that no such recording could be admitted into evidence.
The Judge clearly has a dilemma. The rules of Evidence do not allow for illegally gained evidence, but the court’s obligation to take into account the “Best Interest of the Child,” also gives the court the responsibility of looking out for what is best for the child.
Below are the various scenarios that could very easily evolve out of this myriad of facts and factors. It should also be pointed out that while the various scenarios are presented as being hypothetical, it should also be noted that they are not “made up.” Each one of scenarios described below have been witnessed in very real cases in Family Court. They are listed with the various descriptions of how a Judge might choose to resolve this issue.
Scenario 1: The Judge chooses to not allow the telephone recording at all, reasoning that its illegal status precludes its admissibility.
As a subset of this scenario, if the Judge has a proclivity towards mothers generally having custody of minor children, he could well rule that she be named primary custodial parent. He may view the father rather negatively due to his deceptive practice of apparently recording the mother without her knowledge. He may further reason that if he is capable of this, that he may well be capable of other similar acts, interpreting secret recordings as emblematic of his character.
This would likely have the effect of further tainting the Judge’s view of any further testimony and argument that the father may put forth. So under this scenario the mother would likely be named the custodial parent, with the father perhaps having long lasting supervised visits with their daughter.
As an alternate subset of this scenario, let us consider that this Judge may choose to disallow the illegal recording, but suspects that it may represent just what the father claimed, that is, the mother attempting to turn the child against him.
Under this scenario, let us assume that this Judge has some sensitivity and familiarity with the issue of parental alienation. He does not wish to allow illegal evidence, but has a suspicion that the mother might be vilifying the father to gain custodial advantage.
To get to the bottom this, let us assume that he appoints a Guardian ad Litem to perform an investigation.
If the child has begun to become alienated from her father, and if the GAL is unfamiliar with the problem of Parental Alienation, the literature tells us that this GAL will tend to side uncritically with the daughter’s wishes, and will probably report back to the court that the daughter’s resistance to seeing her father is due to their shakey relationship, and be less informed by the mother’s actions.
Under this scenario, the court would be likely to give the mother custodial responsibility, and order therapy for the child and her father, dismissing any concern about parental alienation.
In yet another permutation to this scenario, let us assume that the GAL appointed by the Judge is very familiar with the problem of parental alienation, and that the child has begun to be alienated from her father.
The result of this investigation might likely be that since the alienation is only mild in nature, that the mother should retain custody of the daughter, but that she should be in therapy with her daughter so as to help her, the mother, to not engage in alienating behaviors with the daughter.
The court would also likely order therapy for the father and the daughter to help him in his relationship with her. Under this scenario, while the mother would have primary custody, the court would generally find her to be more at fault, due to her alienating behavior with the daughter.
Alternatively, it is possible that the same GAL could recommend that the father have custody, and that the mother have visitation, which could be supervised or unsupervised. The reason for this variation is due to the fact that most appointees of the court have only moderate to very little awareness regarding the research related to Parental Alienation.
Therefore, even in the case of a relatively informed and knowledgeable GAL, one is likely to get widely ranging recommendations since such nuances are the domain of those very familiar with the literature.
This variation notwithstanding, the court would tend to see the father as being more of a victim of the alienation, and would tend to rule more in his favor in a general sense.
As yet another permutation of not allowing the recording, let us assume that the Judge decides that a Custody Evaluation should be performed to aid the court in determining what is best for this child. Perhaps surprisingly, this scenario might follow much the same pattern as the ones described above as in the case of the GAL, depending on the evaluator’s familiarity with the problem of parental alienation.
As there is currently a debate within the professional community about the causality and nature of Parental Alienation, the orientation of the particular evaluator relative to this debate could lead him or her to recommend a wide range of options.
These could range from the mother having primary custody, and the father having supervised visitation, to the father having custody, and the mother having supervised visitation, and everything in between. The former recommendations would be likely if the evaluator strongly identified with what has been referred to as the “Reformulated Model” of parental alienation, and the latter recommendation would be likely if the evaluator identified with the original PAS model of parental alienation.
It is unlikely that the appointing Judge would be aware of any of this, making this appointment quite unpredictable as to consistency of outcome.
Finally, and certainly less likely than the options described above, another exists. That is, the Judge could see the father’s taping of the telephone conversation as his admission of a criminal act, and could therefore recommend that the State Attorney prosecute the father. While this alternative would not necessarily have direct bearing onto the Family Case, it could impact it indirectly. Admittedly, this alternative is the least likely, but it is also important that it has happened.
Scenario 2: The Judge allows the tape recording into evidence, giving less weight to the Rules of Evidence, and more to the Best Interest of the Child.
Under this scenario, let us assume that this Judge gives more weight to the “Best Interest of the Child” responsibility and allows the recording into evidence. As above, there are multiple possibilities as to how this could be accomplished, again with widely ranging conclusions.
As the first possibility for this, let us assume that the Judge decides to listen to the tape in open court. If this is the case, this Judge might well take a rather hard position regarding the mother’s behavior, as he or she is likely to see her behavior, as revealed by the tape, as being radically not in the child’s best interest. This reaction would be likely if this Judge was quite sensitized to the issue of parental alienation, or if he or she tended to favor fathers, or if he or she tended to identify more with the father than the mother for whatever reason, in this particular case.
Alternatively, if the Judge was skeptical that this sort of behavior on the part of the mother was really all that harmful to a child, he or she might interpret this as only angry and “out of character” behavior engaged in by many divorcing parents, reasoning that is just not that unusual. This Judge might dismiss this as being relatively insignificant, and very secondary to other issues.
With these two different Judges, the first one might well order primary custody to the father, taking a strong position against the mother’s actions for the reasons noted above.
Alternatively, he or she might order equal custody divided between the parents, as this Judge might have a proclivity toward rotating or 50/50 custody, believing that this best resolves this sort of problem. Alternatively again, it is also a possibility that a Judge who has an understanding of Parental Alienation, might order custody to the mother, as they may intuit that the alienation is only mild at this time.
Any of these outcomes is possible. However, alternatively, the Judge skeptical of the whole Parental Alienation argument, might well award custody to the mother, and order visitation with the father. Again the range of outcomes is vast.
As yet another option, let us assume that the Judge has heard the recording, and orders a custody evaluation. As in the case above under Scenario 1, the outcome of this evaluation would be directly related to how the particular evaluator identified with the professional debates about parental alienation. This factor is the most predictive of how the evaluator would perceive the situation, and consequently, how they would see a solution. Again, the range of final recommendations to the court could include the mother having custody, and the father having visitation (which could be supervised or unsupervised), to the father having custody and the mother having visitation (also either supervised or unsupervised).
The first observation to be made from the discussion above is that the actual listening to the taped recording did not tend to predict the outcome of the court’s recommendation.
That is, regardless of the admission of the tape into evidence, and the trier of fact hearing it or not hearing it, the range of possible outcomes covers every option that exists. These options range, but are not limited to, the father having custody, to the father being jailed, to the father having only supervised visitation, to the father having unsupervised visitation, to the father having rotating or 50/50 custody and visitation, to the mother having custody, to the mother having unsupervised visitation, to the mother having supervised visitation, to the mother having rotating or 50/50 custody and visitation.
In all cases, the independent variable that predicted the outcome is less derived from the facts of the case and the evidence, than it is from a knowledge of and sensitivity to how the various appointees, as well as the Judge, perceive certain issues on a personal and emotional level that have nothing to do with the law.
Unfortunately, many attorneys do not appear to understand this basic observation that Family Law operates very differently than the other applications of law. Many parents are told that certain outcomes can “simply not occur” because it would be inconsistent with the law or with a prior order of the court.
The best example of this is the familiar situation heard in Family Courts all across this country, where joint custody and visitation has already been ordered, but the visitation has not occurred due to the actions of one parent. The other parent is often told that they have nothing to worry about, since the court had already ordered visitation, that a hearing to get the court to simply enforce its earlier order is all that is required. This is often presented in this manner, as though it is a matter of law, and only a legal formality with a highly predictable outcome. This very commonly is not the case, leaving the parent and even the attorney typically stunned.
While predictability and adherence to the Rule of Law might be the case in corporate law, or criminal law, such is very much not the case in Family Law. Success in Family Law has as much to do with modifying the presentation of the case to suit the audience (Judge) as it does with the law itself, probably even more.
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