To learn more about Janet McCullar and the custody process, visit her website at: https://janetmccullar.com/.
Thank you for listening! Find a transcript of this episode below.
Shawn Leamon: Shawn Leamon, here, M.B.A. and certified divorce financial analyst, here with Janet McCullar, board-certified family law attorney in Texas and author of the new book The Custody Lawyer. Janet, it's great to speak with you today.
Janet McCullar: Thanks, Shawn. I'm glad to be here with you.
Shawn Leamon: Why don't you give us a little bit of a background on you? You just wrote this great and informative book called The Custody Lawyer, but tell us a little bit about how long you've been practicing and why you wrote the book.
Janet McCullar: All right. I've been practicing for over 25 years. I was a teacher before that, then went to law school. Not too long after I finished law school, I started working in the divorce and custody area, and have mostly done custody cases in my practice.
Janet McCullar: I wrote the book because I noticed that when people come in to meet with me for their very first appointment, and they've got a custody case, and they have a lot of concerns, we have what I call an initial consultation. By the end of that consultation, I've seen their shoulders drop, the person's more relaxed, some of the fears that they have have been addressed, and some of the frequent misunderstandings that people have about the way a case works or what might happen to them goes away. I see [inaudible 00:03:54] relief. I love that initial meeting. I love that ability to really help somebody address those fears and concerns.
Janet McCullar: And so, I started thinking about all the things that I told to people in those first meetings and put it together in a book. Also, just tried to address how a trial works and some special areas like parental alienation, which I hear about from people all the time.
Janet McCullar: So that's sort of a little bit about me and why I wrote the book.
Shawn Leamon: No. That's great. I want to get into parental alienation at a high level in just a little bit, but for someone who doesn't know anything about custody, but they know it's going to be an issue. It doesn't necessarily have to be a divorce-related issue, though of course, custody issues, I imagine, are often happen in divorce context. But for someone who just knows that they're going to have a custody question or a custody battle on their hands, what's the first thing someone should be doing to prepare for that?
Janet McCullar: Well, I think the first thing you should do, of course, is contact a lawyer like myself, and set up a meeting with them. Even if you're not sure you're going to be going through a divorce, or if you're not sure you're going to be having a custody case, going and meeting with the lawyer will give you the opportunity to get some ideas about things to do in case that happens in the future. For example, I often tell people who just want to consult with me to keep a diary or a calendar where they're marking the things that are happening. So if they're having a dispute about when visitation should be or if they're having their child's coming back from a visitation with the other parents, and the child is acting out in some way, they're making a record of it. Over time, these kind of chronologies are extremely useful to me in putting together a case for somebody.
Janet McCullar: Also, going and finding out just some basic information about what happens and what do you need to plan for.
Shawn Leamon: To that extent, is there sort of a flow to how a custody case works or a specific process that one goes through when someone comes into your office? What does that look like? I know for most people, you have no idea what they're about to face or how that process even goes.
Janet McCullar: Right. So, there's usually two ways that people come to see me. Either they are splitting up with a partner and they have children, or they already have been divorced and they're going to be doing what's called a modification of the prior orders that were made by a court. But let's talk about the first instance when somebody's coming in for the first time.
Janet McCullar: Not everyone, these days, is married that is going through a custody case, but many people are. What happens first is you come in, you meet with me, we talk about what's going on in your situation, and I give some guidance on whether a case needs to be filed. Not everybody needs one. I sometimes recommend that people go and try some other things first, such as going to counseling. And then if that isn't working or somebody's ready to separate from their partner, then we will file a lawsuit, usually a divorce. In that, it's going to include the things that we need to figure out about the child or the children.
Janet McCullar: Once that process is started, which is filing some sort of lawsuit, which I think a lot of people don't really think about that, but that's just what it is. It's a lawsuit. A divorce is a lawsuit. Then it's a matter of are there urgent matters that need to be tended to right away or are we going to go through a process then where we're gathering information that will eventually lead us to a trial, where a judge will make decisions, or before a trial, a mediation, where the people will work together with a neutral third party to help them resolve the case through a process called mediation.
Janet McCullar: Along the way, a lot can happen. It just depends on how complex the situation is. If it's a very complex situation, for example, that say parental alienation is involved, we're going to have steps in between where we're going to be asking a court to appoint some professional to do, for example, an alienation evaluation to find out if that is going on. Or we're going to ask the other side for information through a process called discovery.
Janet McCullar: I try to go through in my book a little bit about what happens at each of those stages because it is a very mystifying process for most people because most people don't go through lawsuits in their lifetime.
Shawn Leamon: Yeah. That makes a lot of sense. The other thing you mentioned as well is modifications. That's something that I imagine comes up quite a bit, or often I imagine some people don't know that they can modify a previous order, or some people might be afraid that it does get modified. Could you talk a little bit about that process as well?
Janet McCullar: Sure. A modification is a change of a prior order. What that usually means, pretty simply, is that the divorce decree or the last order that was put in place is not working for some reason or another. For example, maybe somebody, you know, wants to move out of state. Maybe visitation that was ordered under the decree or the divorce decree isn't working. Maybe the children are refusing to come and visit the other parent. Maybe the other parent isn't facilitating visitation. Maybe sometimes something big happens like a parent was arrested for driving while intoxicated, or they have developed a drug problem that the parent is starting to affect their ability to parent. All of those are the kind of things that I see when people are coming to me and wanting to change or modify what the original orders were.
Janet McCullar: A very frequent request is one parent may have been the primary parent, and now, the other parent thinks there are reasons that they should be the primary parent. And so that can result in people going to court and asking the court to modify or change the orders.
Shawn Leamon: Now, that's very helpful.
Shawn Leamon: Let's shift gears to, you know, there's a lot of different topics in the book, and I'd like to cover all of them, but don't have enough time for today, but one that you've mentioned a few times is parental alienation. What is that?
Janet McCullar: Parental alienation is situation where there is a preferred parent and a rejected parent. It is not necessarily the case that the preferred parent is engaging in a conscious plan to remove the children, but their conduct can be so subtle. Eventually, it can lead to a child flat out refusing to see a parent. Often, what I hear the favored parent saying is, "Well, I can't make the child go see the other parent. They refuse to go." Which poses an interesting question to me because if your child came to you and said, for example, "I don't want to go to school," would you just throw up your hands and say helplessly to the authorities, "I can't make my child go to school"? Or if your child needed medical treatment, parents don't, I've never heard of a parent who says, "I can't make my child get the treatment that they need from a medical provider."
Janet McCullar: But so often, people will say that in terms of a custody. "I can't make them go." Of course, you can. Every parent can make their child go and visit the other parent. And they need to make them go. When that's not happening, that is one of the biggest signs that there's some alienation going on.
Janet McCullar: It can start off in a very subtle way, but so often, it starts with a gradual, you know, the child stops going to visit, or they don't like the circumstances of the visitation, or they, you know, act out when they come to the other parent's house. All those things can start a path towards alienation or, at a lesser degree, estrangement.
Shawn Leamon: And that last term that you use, estrangement, what does that actually mean?
Janet McCullar: Estrangement is a milder form of alienation. That's a situation where, I often see a parent befriending their child and sharing with the child information about the other parent that's not appropriate. You know, saying things like, "Daddy is divorcing me and leaving us," is something I heard a mother say once. You know that most parents when they're going through a divorce want their children to know "your dad and I aren't going to be together anymore, but Dad loves you and I love you, and time with both of us is important." But a parent who is engaging in an estrangement starts signaling to the child that it's not okay to spend time with the other parent.
Janet McCullar: They can do things like, you know, refuse to let the child talk about what's going on at the other parent's house, forbid them from taking certain belongings to the parent's or from the other parent's house. In public settings, not sitting with the parent or sitting across the room, and if the other parent tries to join them, getting up and moving. Things that are sending to the child a signal that there's something wrong. Often, it gets into a very complex dynamic where the child wants to please the parent who is rejecting their other parent, and they know that as long as Mom, for example, is around that they can't be friendly with Dad or it hurts Mom's feelings too much, and they start taking on a caretaking role.
Janet McCullar: But estrangement is just a milder form of alienation. The child may still go to visitation, but there's a lot happening that is undermining a healthy relationship between both parents and the children. Another way of ... Go ahead.
Shawn Leamon: Yeah. You said the word complex, used the word complex, and it sounds like it. One of the questions I have related to that is given all of the examples you just provided, how does one prove that something's going on? I mean, these are, at best case, it sounds like almost anecdotal examples, but how would you win a case or defend someone or go after someone, just depends on the situation, when these behaviors are being exhibited? It's not like someone, there was a police report filed necessarily, or there was a video recorder going on. This is very subtle human interactions.
Janet McCullar: That's very true, Shawn. A lot of people come to me and they're worried about a he said, she said. You can imagine in family law of context and divorce and custody context, that's almost always the case. It's a he said, she said. One, I work with my clients to establish a lot of credibility with the court. I like to say it is they're going to say, but we're going to show example after example. Usually, I work with my clients to come up with very specific examples of the other parent's conduct that we can talk about. So that's one way.
Janet McCullar: But then so often, the kind of interactions that are happening between the parents are also translated into text communications, emails, postings on social media, all of those are frequent types of documents that I use as evidence to show that something is happening and to bolster what my client is saying.
Janet McCullar: People who cannot talk in terms of specifics, you know, if I ask the parent, for example, "Tell me how you encourage and support a positive relationship between your child and the other parent?" And they can't give any examples, that's going to be a thing that undermines their credibility in front of a court. But I'm going to have a client who's prepared to talk about and give example after example after example so that we can demonstrate it. That goes back to keeping calendars and journals and emails and screenshots of things that are on social media, and so forth.
Janet McCullar: In some districts, people make recordings as well. Tape recording another person is something that can be tricky. In the state that I live in, you can record a conversation that you have with another person. Just like if you and I were sitting down having a talk, I could record that conversation. I wouldn't even need to let you know it, and that would be lawful in Texas. But it's not everywhere, and so, before a person makes recordings, they need to be careful about doing that.
Shawn Leamon: No. That makes a lot of sense. Going back to the book, The Custody Lawyer, you cover a wide range of topics from the custody process, visitation, a spouse that's violent or bullying, kids with special needs, and everything else. For someone who, and I know there's many, every day across the country, someone who needs some advice, what's the best way for them to contact you?
Janet McCullar: They can go directly to my website, which is janetmccullar.com. Right on my website, there's a lot of information and also, the ability to set up a consultation with me, and I can talk to anybody anywhere at almost any time to talk about the particulars of their situation. And then secondly, would be to try and find a lawyer, and to have somebody who helps you. I think that a lot of people can save the cost of a lawyer by talking to me first, seeing if they even need to hire a lawyer or maybe I'll have some tips or strategies that they can use to help them position themselves well before they hire a lawyer.
Shawn Leamon: Well, that's very helpful. Well, Janet, it's great speaking with you today.
Janet McCullar: You, too, Shawn. Thank you so much.
Thank you for listening! Find a transcript of this episode below.
In this episode, I wanna continue discussing creating a marital history. Now, if you didn't
hear the previous episode, you should go back and listen to that one because it has a lot of
good information about the overview on why you should create a marital history, and some
important questions you should be thinking about when you create said history. And also,
some alternative methods to create a marital history and why it's so important to do. And
in this section, I want to continue with the marital history and provide some other areas for
you to think about.
This next area is called the health history, the health section. And, what should you be thinking about in here to include? Well, if there are any mental or physical problems that have happened in the past few years, particularly for either of you, but particularly if it affects the work ability, and also if it affects the way this divorce may go. Have there been any hospitalizations or major surgeries that have happened? Are there any substantial prescription medications that you may need to think about and someone may have? Also, if there are large out of pocket medical expenses, which I've had several cases where that is a substantial portion of their divorce and negotiation, that is very relevant as well.
The next section is education. You should, just for the record ... Or, I shouldn't say for the record, but for our records, give us any information on your educational background, degrees, advanced schooling, no schooling at all, whatever the case may be. And also, this is an interesting section, particularly for those who've been out of the workforce for a while. One of the things that you should think about between us and between your lawyer is if you are planning a second career, a next career, what that might look like. So, I've had clients who've gone to coding school, become real estate agents, become paralegals, become a variety of things. And, one of the things that you should consider is, if you are thinking about those things, how much it costs, how long it takes, and what life might look like after you get that advanced education.
The next section is employment. If you've been working, tell us where you've been working, about how much you make, how long you've been working there, what your salary is, what your job position is, what your future prospects are at that company. And if you haven't worked, that's okay too. Let us know. Or, if you've had a break from employment. I know some people who worked for a while, then they stopped for a while, then they've restarted their career. Whatever the case is, that's fine. Just let us know what has been going on, and also do the same for your spouse.
The next section is real estate. And actually, I just had a client send me an email 'cause they have a bunch of real estate. I said, "Just give me a list of all of this information for all of your properties. I'm just gonna run down it." For every piece of real estate you have, tell us when you purchased it, how much you spent when you purchased it, where the funds for the down payment came, how much of a mortgage you may have had, who's been paying the mortgage payments, have there been any substantial upgrades. Like, if you remodeled the kitchen, or if you added a wing to the house, or a new bathroom, or whatever the case may be. And, how you paid for those upgrades as well. And also, whose name is on the property, as well as whose name is on any debt.
And then, finally, is there other income that we need to think about, or unusual income, or unusual things in your finances? Things that might be unusual or other include income from rental property, substantial dividend income if you had a settlement. So, a lawsuit judgment that you won. If there is a trust, a spouse has a trust. If a spouse gets substantial stock options, or you get substantial stock options, something to think about. Or, if a big chunk of the income occurs in a year end bonus, or if the income is lumpy, or if there's a business involved. All of those things you kind of can toss into the other section to provide any additional explanation. And, I'll say that most people have ... not everyone, but most people have some sort of other that they need to include as part of the process. So, something else to think about there.
And, those are the main items. And so, what you do is go through each of these to the best of your ability. And, you should start filling them out. Once you have everything written down, it doesn't have to be in my order, and sometimes attorneys will ask for them in different orders, to the extent possible, you need to start gathering proof of everything, or evidence of everything. As I said, to the extent possible. If there are particular wage items that we need to be thinking about, or if there is a bank account, or if there is a mortgage statement, or if there is a medical history that we need to know about 'cause it could become a good deal, or if there was a specific instance of abuse that may be relevant, or if you've been seeing a therapist for a while, either you singular or as a couple, start gathering up that information. Anything that can ...
As I say oftentimes on many coaching calls, I'll say, "I understand what's going on, but do you have any proof that what you're saying has happened? Something with the kids?" It's better to have as much documentation as possible that proves what you're saying is correct, rather than not having it at all. And so, as part of that, you just go section by section and start getting the evidence you need, particularly if there's going to be, or if you anticipate, a dispute over something. So, a good example, let's just say, is a bonus. Sometimes spouses manipulate what their income actually is. And so, what you'll do is you'll need to go get the tax returns and say, "Hey. On the tax returns, here's what happened over the last five years. Here's five years of returns. Here's a good way to verify what the income is, or what the income has been."
Or, if there is a medical issue ... I've had a few cases where almost 100% of the divorce is about medical things. And if that's the case, then you need to have evidence of what medical treatments you've been having, what the out of pocket has been, who your doctors are, what prescriptions you take, and what the future prognosis is of that medical condition. If you're on disability, why you've been on disability, what prompted it, what evidence you have of it, why it might mean you can't work. Or, if you're the spouse contesting the disability, which I also have some clients who are contesting a client's disability claim, why ... You don't think that spouse is as disabled as you think they are, and here's some evidence. Here's a Facebook post of them running a half marathon, or doing an adventure sport, or playing golf and walking around just like they're fine, where they claim they can't work and they can't get out of bed.
So, whatever that is, anything that you're going to anticipate contesting ... It could be something for the kids. I don't know. But, start getting in the mode of gathering evidence now and including that in the marital history.
Another common one that people forget about, but if you have text messages, or emails, or in some cases, a little bit more extreme end, recorded phone calls or conversations, that is also evidence, or potential evidence. Make sure you don't violate any laws. But, if you take a screenshot of a text message conversation, or if you have nasty emails or nasty voicemails, or Facebook messages, or whatever the case may be, all of that type of stuff is also potential evidence that can help you with your claim.
So, what do you do? So, let's take a step back. Just giving you a week's worth of potential work. You start answering all these questions. There's no set form, per se, that you have to fill out. It's just what makes the most sense for you, and what the major items are, and what you wanna include. You can always add to it or revise it later. But once you have it, what next? Well, once you have that information and you have the evidence, you need to take a step back from it and keep it all organized as possible. Have a friend look over it, and say, "Hey, friend. Here is some evidence that ... Give a look at this. Is there anything I'm missing? Does it all make sense to you? Is it clear?" If you have a trusted friend, show them everything you've prepared.
And then, once you have that all prepared, and everyone's reviewed it and it's good to go, it's nice and organized, share it with your attorney. Or, if you're gonna book a coaching call with me, or book a call with another certified divorce financial analyst, or someone else, prepare it as well. And, send that information over and say, "Hey. I want you to review all of this in advance of our conversation." Or if you're gonna go to a meeting, bring it with you to the meeting, or ask to have it reviewed in advance. I have a document review call that I recently started offering where we go through marital histories, and other relevant documents, in advance of the call so we can dive deep and really understand what's actually going on in the divorce. And so, I would start thinking about those things, and share it with the people who are your trusted advisors. Be as honest as you can, and we will interpret the information to the best of our ability.
Also know this, is that your spouse may be doing the same thing. And so, sometimes it's helpful to hear ... Or, maybe not even helpful. But, sometimes we will hear the other spouse's side of the story as well. It's not just a one-sided process sometimes. We always work for the person who hires us. But, if you're kind of going through a collaborative process and you're on good terms with your spouse, have your spouse prepare their version of the story as well. It can be very helpful for all of us as we figure out what the appropriate course of action is, and how do we get through this process in one piece and minimize the amount of conflict, and make sure everyone gets, to the best of our ability, the outcome that we hope to get them to.
There's no right or wrong way to do a marital history. The more information you can include, the more organized, the better. There's not a template. There's not a worksheet you can fill out for this one. But, start thinking about it. Start preparing it. I guarantee you your attorney'S going to appreciate it. I will appreciate it. Everyone you work with will be very appreciative of a marital history when you create one.