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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.