Top Family Law Attorney Explains High Net worth Custody Battles & Co-Parenting
[Source: The Amicable Divorce Expert with Judith Weigle] https://www.podbean.com/site/EpisodeDownload/PB10C14866PUDT
Custody Battles and Co-Parenting for the Best Interests of the Child on The Amicable Divorce Expert Podcast
Judith Weigle: From center ring today, we have top family law attorney Christopher C. Melcher of Walzer Melcher LLP which was ranked one of CA’s best family law firms. I have known of Christopher since I’ve been in the family law business 2012, nine years ago. Such a well-respected attorney, very kind. I’ve gone to some of his seminars. I always feel better educated than I walked in. But Christopher is one of the very top attorneys in Los Angeles who really deals with the high-net worth clients, the business owners, the celebrities, the executives.
The thing I really love, on top of all of this, is your firm, Christopher, really tries to focus on settling cases out of court first and only uses trial as a last resort. Is that not true?
Christopher Melcher: The clients that we represent are risk-averse. They’re usually what we call the end spouse, the one that’s in control of the finances and doesn’t want to spend all of it on a divorce. That’s our typical client, is somebody who is pro-settlement, wants to avoid conflict, wants to be generous or fair in the resolution of the case, that’s who we’re looking for as clients.
We love mediation as really the only way to get rid of the case, to resolve it. Unfortunately, some people are slow learners and they’ll need to time to understand the process and what really can be accomplished in a divorce, or they just want to fight a bit or they’ll need pressure. Litigation is used as a tool to bring people back to mediation.
Judith Weigle: Do you use litigation in and out of the settlement? Not as the last resort, but just to get things unstuck for a little bit, is that what you were saying?
Christopher Melcher: Well, I almost look at myself as a defense attorney. Many times I’m responding to a lawsuit that’s already been filed… I’m not necessarily the one prosecuting or bringing the case, I’m defending it. But if it is pre-litigation, I’m looking at ways to avoid the conflict while protecting the status quo, meaning giving people the space to make a deal. We may say, “Hey, let’s not file right now. We’re not going to cut anybody off financially. We’re going to preserve all rights and remedies that everybody would have. We’re going to agree that there’s not going to be any sales or dispositions of property. We’re going to agree to full disclosure of whatever documents you want. We’re going to agree on a mediator so we have somebody to talk to and somebody to hold us accountable and set meetings.”
I would put into place this whole plan of resolution if I’m able to before the case is started. If the case is already there, then I’m going to be looking at ways that we can maybe continue a hearing on temporary support or custody to give us more time to settle, looking at temporary agreements that could be made stand still agreements, things that don’t hurt either party. This takes a lot of effort, and what I’ve seen is many attorneys settle in court and they’re in court every day and it’s because they didn’t have the time, client control, or the client to assist in doing all of this prework that’s required to get it into a settlement mode, and they’re just waiting for the hearing and then thinking about their case.
Judith Weigle: Or maybe, if I may, not all attorneys are created equal, there are those who really are compassionate and I look at you as one of the most compassionate. Could just tell by the sound of your voice, and then your reputation second. There are those who actually love the courtroom. Is my observation correct?
Christopher Melcher: Well, it’s very true. There’s people that have a need for conflict, and it’s sick, but they do. They gravitate towards conflict. We can find that in attorneys and we can find that in clients. There’s also people who are scared of settlement because they’re worried that they’re going to taken advantage of and get sued by the client. That is the fearful attorney who will take everything to court thinking that they can’t be blamed because they presented all the arguments and evidence that the client wanted and the judge just didn’t agree with them. We have all these dynamics. This is why I say is that family law is not that complicated. It’s maybe 5% or 10% math and 90% people. We have two parties and we have two attorneys, so that’s four people that have to all be reasonable to address a problem, and what are the chances of that happening?
Judith Weigle: Well they’re very high with you, I’m sure. Today we’re doing our celebrity divorce series. We’re looking at custody as the topic, and we’re going to look at this through the prism of the Brad Pitt, Angelina Jolie custody case. I just want to give the audience a little bit of chronology to put this in place and then we’re going to start talking about custody. 2004, they met, fell in love. 2006, they had their first child. 2007, they adopted a child. 2008, they became pregnant with twins. Now in 2014, they married. This to me is significant. I’m going to throw this out to you in a second. They had been together 10 years and then they married. It was either August or September that they filed for divorce. I got two different dates as I was doing my research, maybe you know better, but same ballpark.
August or September 2016, Angelina initiates divorce, therefore, she’s the petitioner. But, and here’s where the custody issues come in, the day before the filing, Brad was reported and we’ve all heard in the news, Brad was reported to have hit his son, Maddox, no longer I believe a minor child, but a minor then, while on a private plane. Domestic violence was cited in the petition when Angelina filed. Therefore, or as a result of that I’m assuming, she filed for what we call sole custody. A year after that, Child Protective Services was called, and then in 2019, the divorce was finalized except for custody. It’s still the ongoing issue to this day because we’ve seen other news accounts. This is where we begin. First of all, before we tackle this, what is your philosophy of custody? You did, when we talked before, had a really beautiful philosophy of how you look at custody.
Christopher Melcher: Well, I had to struggle with this because I came into family law from a different field doing criminal defense and some civil litigation. In that practice, it’s very much adversarial. There’s one side against another side and many times take no prisoners. I had to adjust when I came into family law to understand how different this practice is. I even made fun of it for a while, why do we call it family law? Because it should be ex-family law because we don’t represent families, we represent clients. I’ve really changed over the years. I’m thinking now we do represent a client, an individual, and we have to zealously advocate for that person, but they’re involved in a family. What we do affects the family. I am looking at this like a doctor would have when they have the Hippocratic Oath, first do no harm.
They have the humility to understand that whatever that doctor does has just as great of a likelihood or capacity to do harm that it would be to do good. I’m doing that in my custody cases. It’s first do no harm. I don’t want to take steps that is going to harm the client or the family, and I want to understand the actions that I take aren’t going to affect the other party, looking at it from the other party’s viewpoint. To me, the clients don’t always like that when I’m looking … Why do you care about my spouse or ex? It’s not that necessarily I care about them, it’s I want to understand what’s driving the conflict, what the other side needs and that might lead to resolution or lead to a solution that would fit for the family.
If it does have to go to court, I will have seen this in a way that’s similar to how the judge is seeing and then now I can present a relief package that looks like something a judge would do and it’s more likely to be accepted. I’m taking a very cautious approach, but I do not like it when people fight over children. I think children get damaged by that. I think that parents fail to look at the damage or harm that can be done through litigation over their children versus whatever perceived benefit they think will be obtained through that fight.
Judith Weigle: That is a beautiful philosophy. I love to hear you say that. Now, in this case, in Angelina’s case, which is very similar to so many other cases that the average person would go through, she filed for sole custody. What is the difference between sole and joint custody?
Christopher Melcher: It’s not well-defined in the law.
What we normally think of sole custody is some parent that has all of the time and the other parent might have some very minor contact with the child, like once a month or maybe once a week, but it’s infrequent contact, for sure. Then joint custody would be a sharing of time. It’s not equal, rarely equal, but it’s a sharing of time where there is frequent and continuing contact that each parent has, albeit unequal, with the child. There’s no formulaic definition or percentage that amounts for it. To me, I don’t like this sole label because people fight over it so much.
Who wants to agree to the other parent having sole custody? That would be an admission of failure or defeat or you’re not a good parent or you’re abandoning your child. It’s very difficult to get somebody to agree to that. It’s a very polarizing thing to even suggest that somebody would have sole custody, even if they’re entitled to it, even if it’s best for the child. To me, I’d rather call it joint custody and it’s like, yeah, the other parent has once a month, who cares? It’s a label. I deal with schedules, not labels. How much time do you have?
Judith Weigle: When I think of this, and somebody wants to check the box for sole custody because I don’t know what it’s like in other states, we work in California, but I’m sure there’s a similar version to this on these court forms. To me, sole equals control. When anybody wants to check the box for sole, they want control. When you’re talking about a sharing of time, if you’re not the attorney and they get sole custody, then would that person control the decision-making over the co-parenting schedule?
Christopher Melcher: Yeah, and that’s probably where it drives from is control. There could be beneficial control and harmful control. Sometimes we need the control because the other parent’s abusive, and then sometimes we’re controlling because we just don’t like the parent and want to remove them from the child’s life. There is a distinction between physical custody and legal custody. Physical custody would be the time that each parent spends with their child, and then legal custody is the decision-making rights over medical or educational decisions, whether the child’s going to work or have a piercing or something that.
We will see those fights for sure. But again, it’s a label and it can really drive a whole lot of conflict. There are parents who just can’t get along on a medical decision or educational decision, and we’ve had to go in and get sole custody orders because otherwise this child would never get treatment or never move forward in school or get services at school because the other parent is just obstinant and wants to use his or her veto power as a way to keep the conflict going. There’s certainly circumstances where sole custodial time or sole decision-making is indicated.
Judith Weigle: In my experience, I’ve seen people jointly agree on giving one parent sole legal custody if that parent is the lower wage earner and can apply for a tuition grant. Both parents are on board and collectively deciding to give the lower wage earner sole custody over legal, but they have joint custody over physical. Yes?
Christopher Melcher: Yeah, I haven’t experienced that, but I think that there is some definitely some room for creativity in here and is working together for solutions that meet all their needs. Anything that works for them is good. But we do see a lot of fighting over these labels that I think unnecessarily moves people into conflict and jockeying for positions. I really wish that the law would change in that way to neutralize some of this terminology so people aren’t locked into this battle of, yeah, I’m going to check the sole box, and now all of a sudden you’re setting off a war.
Judith Weigle: In the Brad Pitt, Angelina celebrity divorce case, but also in other cases, domestic violence was cited. Only one incident, in the all years that I’ve listened this and maybe you know differently, I don’t know, it’s only been that one incident. Maybe little things happened in the home, who knows? People get upset sometimes, but can we address domestic violence a little bit? What does it look … What’s the range of behavior that can come under the umbrella of domestic violence?
Christopher Melcher: In California, we have a term called abuse and it’s broadly defined as really manifestations of power and control in a very negative way over somebody else. The examples would be stalking, hitting somebody, harassing them with phone calls, texts, reading their messages, showing up at their work, berating them, harming their pet, blocking their movement, all the things that you can imagine that somebody would do. Those are just what I say as symptoms of coercion over another human. When we see those things, they are abuse and they are serious, and it’s usually a pattern of conduct that may have started with some verbal abuse, some comments, and then escalated.
The court will intervene and make a restraining order to stay away and stop the abuse and it can also certainly be a factor in dividing custody time, whether it could be supervised visitation. It can be a factor in spousal support or alimony also. The law takes it very seriously, but they’re not all the same. There certainly could be one incident of physical harm to somebody that’s enough, you don’t need to do that twice, and then there’s other times where it’s maybe swearing at somebody one time, and that may require more of a pattern of conduct to prove that that’s abuse. We’re hopefully looking at this with some common sense. The things that I’m looking at are what’s driving the behavior?
Is this because they’re breaking up and they got mad at each other and they said some unkind things or did some unkind things? What I would call situational, where this is natural for a breakup. Does that look like a normal type of breakup? I would say that’s probably not abuse. If this is an ongoing pattern where there’s there was no real reason for it, it wasn’t provoked, that it doesn’t look normal to me that this is controlling somebody, harming somebody else, and it’s absolutely abuse. Where the court’s going to land on all that, we just don’t know. But they are looking at patterns, recency, how long ago was it? How many times does this happen?
Was there provocation for it? Is it likely to reoccur? Because if it happened years ago, sure, that’s bad and wrong and should be punished, but is it going to really happen again now that they’re separated? The court hopefully is looking at all those factors, and then deciding what it needs to do about it when it finds abuse, because we don’t just say abuse, therefore lose custody, or therefore a restraining order. The court has what’s called discretion, which is to use its judgment in determining whether to do anything about it.
Judith Weigle: You just mentioned something so key, and you said we have to look at was the abuse a result of the couple breaking up? Because it’s so emotional if both people aren’t on the same page to file for divorce or it’s a volatile relationship? Yes, that’s understandable. I never thought about it that way.
Christopher Melcher: Yeah, it doesn’t excuse it. I had to learn this through losing domestic violence restraining order applications for clients. When I said, “Judge, I have proven abuse. Yes, they were breaking up, but there was abuse that happened,” and the judge would say, “Yeah, but I don’t think it’s going to happen again because they’re not going to break up again. Therefore, I am finding that it was an act of abuse, and it’s wrong, but I’m not going to issue a restraining order. I’m not going to affect custody for it.” Judges have the power to do that, and hopefully, if they’re wise, they’re doing it correctly. But it is a very important thing to recognize abuse, to stop it and to punish it. Absolutely. That is all important.
What I think happens, though, is that some people get stuck on that, and they say, “Look, this abuse occurred,” and then they expect absolute action to be taken when the court is not bound to do that. The court does have discretion. That’s one case that I had where the wife hit the husband several times in anger and the restraining order was denied, even on appeal, because the court said that there was no need for a restraining order, because essentially it wasn’t going to happen again. It was situational. I totally disagreed with that decision, bothers me to this day. But that was my reminder that courts have discretion. Just because you show abuse doesn’t mean you’re going to get the orders that you want.
Judith Weigle: I know how crushing that could be. I know. That’s the fear and the concern that it would actually happen again. Since we’re talking about Brad Pitt and Angelina Jolie’s incident, we have this one incident, the only incident that I know of that’s been reported in the news, and that was in 2016 on the private plane. I think Brad, in his very limited interviews with the press, admitted to alcohol and marijuana, and then went through either classes, he went through monitored visitation, he seemed to really want to clean up his act. Could you speak to that process that might be requested of the perpetrator in order to spend more time with his or her children?
Christopher Melcher: Yeah, he handled it brilliantly after the plane. I don’t know what happened on the plane, and I will assume that it happened exactly the way Angelina said it happened. I make that assumption. Now, after that incident occurred, there is a decision that has to be made by the client, the alleged perpetrator of abuse. Do you fight back, or do you go with the program? This is hard because it’s in our instincts a lot of times to react and fight, “No, that didn’t happen. That’s wrong. I’m not going to go to any classes. I didn’t do anything.” Okay, that may be factually true, but are you going to win anything being that way? It’s very hard because, and I try and counsel clients about this, if you’re accused of an act of abuse, the last thing you want to do in court is look oppositional.
You don’t want to be arguing, “I’m right,” and then it’s like, “Well, you look like an abuser now because you just won’t accept anything and you want to fight all the time.” You don’t want to look like a fighter, you want to look like a peacemaker, number one. Number two, the court is not as concerned about what happened on the plane as about what is right for the children, because family court is not criminal court. Criminal Court, we say, “What happened on the plane?” If that was a crime, we’re going to prosecute and put somebody in jail, potentially. Family court, we’re not doing that. We’re not punishing people. We are determining what’s in the best interest of a child.
To determine the best interest of a child, sure, we have to look whether there’s acts of abuse, and if there are acts of abuse, then we have to determine how those things impact the parenting plan that we’re crafting. Let’s assume whatever Angelina claims happened on the plane happened, and now Brad says, “Okay, I don’t agree with you, Angelina, this is what happened, but I will go to counseling for drug and alcohol issues. I will agree that a monitor will accompany me on all visits with the children, essentially like a security guard, like a trained observer, who will then report to you and the court. I will do all those things until you feel comfortable enough or until the court tells me I don’t need to do it any longer.”
Brilliant strategy, because now he’s saying, “Hey, I love my kids so much that I don’t want to miss a moment with them, and I am willing. If you have to make me pay for a security guard, even though that’s humiliating and maybe unnecessary, bring two of them along because I don’t want to miss a moment of time with my kids. If I need to go to counseling, or you think I need to go to counseling, I’ll go to that and two other counseling because I don’t want to miss a moment with my kid.” Now he looks like a great dad. You can bring in the counselor to say, “Oh, yeah, Brad was a great student. He did everything and completed with honors. Then you bring in the monitor, “Hey, monitor, was there any problem with Brad when he was with the kids?” “Oh, my God, Brad Pitt is a great dad, and he was very child-centered, no problem.” Now you have baked in witnesses. Now at this point, he looks good even if he did all that stuff on the plane. Brilliant strategy.
Judith Weigle: Absolutely. He even said in a quote, I think it was in a Newsweek article, that he actually appreciated having to go through that process, because he now feels healthy, much better and he has access to his children. Moving to that point of time with your children, he went from that set of restrictions, I agree with you, what a great thing to see. Because again, best interest of the child. To the judge giving him more time temporarily until the whole thing could be resolved. What is the difference between temporary custody/co-parenting and the permanent order?
Christopher Melcher: Well, in a perfect world, these cases wouldn’t take that long, and temporary would really mean temporary, meaning it’s only a few months. But in family law world, there’s nothing temporary about anything. These cases go on, as the one we’re talking about now, for sometimes years. We do have to be careful about this temporary label because it means something different in court time than it does in human time. What he did was to step up, like you say, under some kind of onerous conditions to then having more of a joint equal custodial time, at least that was ordered by the court. I don’t know that it ever went into effect because of some stuff we’re going to talk about in a moment.
But he got stepped up, he got rewarded, and that’s what we’ll see when a client goes with the program, even though he doesn’t like it or agree to it or want it, goes along. Hopefully, the court will recognize and reward that with additional time and taking away these restrictions. I know it sounds awful. There’s probably somebody listening here saying, “Well, why should anybody do that if they’re innocent?” I get it, I get it. But you also have to think tactically here. Do you want to spend your life savings proving that you’re right? Do you want to lose time with your child proving that you’re right? What’s more important to you? There are some uncomfortable decisions that have to be made around this.
He did get rewarded, he got stepped up in time, and that seems appropriate, because like you mentioned, we have not heard of any other incidents. Now, maybe they’ve occurred and she hasn’t revealed them. But she was public about what happened on the plane. I would imagine that if there were other incidents that we would have heard about them, and since we’re not hearing about them and so much time has gone by since whatever happened on the plane, and he’s done all these steps, why wouldn’t he have equal custody?
Judith Weigle: Now we go to something very important, and that is the entrenchment of one parent, the one who files, the one who wants sole custody, that just doesn’t want to move their position. It looks like Angelina doesn’t want to move her position, but she’s not unlike so many other parents, primarily women as a matter of fact, in my recollection. How do you deal with, if you have a client that’s that entrenched in? I’m sorry, this is just the way I want it.
Christopher Melcher: What I do is really analyze it logically. I understand it. Because if I’m representing the parent who is resistant to giving the other parent more time, well, I want to know why is that? I want to know at a really granular level. I don’t want to just tell a client, “Oh, yeah. Well, he’s a good dad. Just give him more time.” I don’t do that. We need to understand what are our client’s feeling and they may not be able to articulate it that easily, and so I want to listen and probe, ask all the questions. We have this concept. There’s this whole thing about alienation and we don’t use that word anymore, parental alienation. We use gatekeeping.
The mental health professionals have seen that there is different kinds of gatekeeping. There could be beneficial and harmful ones. There’s restrictive gatekeeping, which is that you’re keeping the other parent away from the child because you hate the other parent, doing it to punish them, and then there’s protective gatekeeping, where you’re keeping the child away from the other parent because the other parent’s an abuser. The mere fact that we’re gatekeeping doesn’t tell us whether it’s right or wrong. We need to know the motivations and the reasons for that. That’s why I would go, if I was representing Angelina, I would want to know, well, okay, I understand what happened on the plane. But what’s happening now?
I would ask in questions, “What is your fear? Say, if Brad had 30 days alone. You had to go work or you were, God forbid, sick, and Brad had 30 days unsupervised, continuous time with your kids, what do you think is going to happen?” I ask questions like that and start getting the … Because it’s hard. Well, they’re going to say, “Well, he’s going to go to Mexico, he’s going to kill the kids or whatever.” I don’t know. Then I started taking the examples, it’s like, “Well, why do you think that?” Because maybe there’s a reason. Maybe there was a threat to abduct, maybe there’s a threat to harm. I want to know, specifically, what do you think is going to happen?
Then when I get the examples, “Well, why do you think that that’s going to happen? Was it threatening? Do you have anything to support that with?” Then we start breaking it down, and then saying, “Well, is this for you or is this for the children?” We start isolating that. Is it because you want to prove that you’re right just as much as he wants to prove it he’s right? Is that what’s really driving this? I am leading the client through a series of open ended questions, nonjudgmental, to understand for me, hey, is there something here because I need to advocate for this client and develop evidence to support the position? Or maybe the client realizes, “Maybe I’m acting in my own self interest and not in the child’s interests.”
Judith Weigle: There’s another example of wanting more control, and it’s outside of this case, but it comes up all the time, and it’s a parental attachment. Maybe you have a more typical situation where one parent, while the marriage is going on, is with children more than the other parent. Just by that, when there’s a divorce, again, custody equals control. That parent wants more time and more control in this situation because that parent invested in the domestic relationship with the children more than the higher earner. How do you handle that?
Christopher Melcher: We love our children and we are invested in them, and if somebody was the primary caretaker and their identity is surrounded with this child, and it’s a threat to them to have that removed or certainly questioned and not be appreciated. I get all that and it’s legitimate. Absolutely legitimate. That’s where when I’m looking at a plan, and a lot of times the court’s looking at a plan, it’s like, “Well, what did they do before divorce, before separation?” We may want to maintain that status quo. Now, parents can readjust. They can say, “Hey, I was working 60 hours a week while you were staying at home. But if we’re going to break up, I’m going to work less, and I’m going to maybe work part-time and you’ll work part-time so we can both be,” and they have a right to do that.
But if they’re going to continue in those roles that they had before, then it’s like, hey, there’s going to be a primary parent and they’re going to continue. Mom is going to be mom, and that’s totally fine, and dad needs except that. Or mom needs to recognize the dad’s going to have some extra time that he didn’t have during the marriage. We got to work through those issues and respect each other so we know this isn’t an attack, it’s not trying to take away time, it’s trying to share time, but it does drive the dynamic for sure. I think it’s just … For me, having gone through this as a divorce attorney for so long and seeing now children having grown up and being adults, I don’t know that if you ever asked any child of a divorce whether their childhood life experience would be any different whether they had 30% of the time with a parent versus 35% of the time with a parent, but we see fights about that every day.
Judith Weigle: Yes, we do. There’s another version of this, and that is when you’re in a two-parent household, even though you may have one parent that works a lot … We’re in a type a town in Los Angeles, this is the entertainment capital, and these people are out day and night with the film studios, the TV studios. That’s the nature of the environment we live in, and that’s the nature of your clients too. But what I start talking about when I’m in mediations with my clients is, okay, so you are the domestic parent and that is your identity, and completely understand that identity. You may not want to change that identity, you love that identity, you look forward to being a stay-at-home mom, and fortunately, financially you can be.
But here’s the thing that most people don’t think about. Even though the high earning parent is out working, he or she always comes home at night. Maybe they’re out for the bulk of the day, but they come home, and there’s that energy in the home of, we’ll say, dad. Because generally, the bulk of it is men. Some women, let’s not forget Sherry Lansing. That means something. To me, I think in the human dynamic landscape, that now that energy will shift completely when there are two households, and I think that needs to be accommodated. What do you think?
Christopher Melcher: Yeah, it’s true, and that’s describes my life at this moment where I’ve seen my son an hour and a half in the morning, getting them ready, making them breakfast and making sure his teeth are brushed and got to school, and then see him a couple hours at the night time. That describes me, but I’m there every day and I think that’s important for both of us. But if there were a breakup, that would look a lot different. It’s just practically speaking, there’s really nothing we can do about that. When we’re living in two separate households, there is not going to be that. We can’t be over there every day. Might as well to stay together.
There’s going to be differences, and I think kids will hopefully tolerate that, but there does have to be give and take to understand that somebody is going to go out and work and pay all this support out of that money, that the other parent needs to be flexible and can’t just say, “Well, you’re an hour late,” or, “You need to change your schedule, you missed it.” We see that all the time, and it’s really unfortunate. But we also do expect a lot of people … We expect a lot from people who have broken up who don’t trust each other, who aren’t even talking, to then all of a sudden be flexible and generous as co-parents. I get it. It’s not easy, but if we say what’s best for our child, we’re always going to make the rest decision, rather than our hurt and resentment and retribution.
Judith Weigle: I completely agree with you. In order to get to that place, there are these things called step-up plans. Maybe a more restrictive amount of time with say, dad, if he’s the higher earner now, and especially if there are really tiny children, maybe infants, one and two years old, but put into the schedule that, at this age, there will be more time with the other parent, and then that parent can plan ahead as well in their work schedule. What do you think about that?
Christopher Melcher: Yeah. I think that that’s smart, and these plans do need to be tuned up from time to time, but we hate having to do that because it just means going back with more lawyers and potentially court if they don’t agree. If we have more of a plan that looks more long-term where there’s going to be step-ups and we agree that maybe initially we have a very young child who is going to be with mom, and then a little bit later, more time with dad. Some bargains can be arranged around that, but it’s hard. It’s easy for us as professionals because we’ve seen it all before we can rattle off, “Oh, do it two to three, or two to five, or week on, week off.” We already know we’re nesting. But it’s like these people have never been through this before. They don’t even know what we’re talking about. Actually, especially if you have an older kid, you just ask the kid because all their friends are probably of divorce households, and they can say, “Oh, yeah, I’m on a two to three. It’s great.”
Judith Weigle: In my wildest dreams as a kid, I would have never imagined having to have that conversation. But when I was a kid, which was in the Stone Age, nobody got divorced. They hated each other. We saw a lot of families really argue, but nobody got divorced. This is a really new conversation as of what? The last 20 years or so? Kids are having with each other.
Judith Weigle: Oh my God, to be a fly on the wall and listen to this conversation. Geez, oh, man. Okay, you have a situation now where it is a tough situation. Maybe there’s no admittance of behavior that would harm a child, drugs, anger management stuff, and you really do have to go deep now and spend more time on looking at best interests of the child, and there’s this cast of characters, professional characters that are called in to play their roles in this drama of custody. Who are these … Let’s name these cast of characters.
Christopher Melcher: They are nobody you ever want to hear from. If you’re stuck in a family law dispute, you obviously have your ex or co-parent that you’re dealing with, and then you have potentially lawyers on both sides, and you have a mediator there that sometimes you see, and then you have a judge, and then they start bringing in other people if you can’t resolve it, and that could be a child custody evaluator, it could be minors’ counsel, could be a referee. When you start hearing these things, it’s bad. You know you are going to be spending a lot of your life in divorce court or family court, you’re going to be spending a lot of your money, and unfortunately, none of these things are going to help a bit.
es, there are mental health professionals who do custody evaluations, but they’re not binding on the court. It’s just in a very well-informed opinion about what a custody plan should be, and the court looks at it. The other side, if it doesn’t agree, we’ll then fight that and challenge it in court, and then the judge has to decide what to do, and sometimes adopts the eval and sometimes doesn’t. It’s like, what’s the point of this whole evaluation? It’s not binding.
Judith Weigle: You just said it really doesn’t get anywhere. I’m curious about that. Why?
Christopher Melcher: Well, it could if the parents were reasonable enough to say, “Hey, let’s have a mental health professional take a look at this and give us some opinion about what the plan should be for sharing time or decision making,” and then they would actually listen to that, that could be okay because we have an informed neutral opinion. But they’re not. They’re going to talk to the evaluator, they’re both going to do a sales job on the evaluator. “Well, I’m right,” the other side’s going to say, “No, I’m right,” and the evaluator is not going to necessarily know what to do and come up with some proposal or recommendation or opinion. Then one side is going to say, “Yeah, I love that,” because that’s what they asked for, and the other side’s going to say, “No, I hate that. The evaluator’s bad, he was tricked. There’s no good. It’s corrupt,” whatever they’re going to say.
It doesn’t move the ball. We just now have some other layer of professional that needs to be paid and has to navigate through the court system with us. Same thing with minors’ counsel. The courts were appointing them more frequently before as maybe a cheap and easy way of getting at what the child wants, rather than doing an evaluation, appointed attorney for the child, they can talk, and then the attorney comes back and says, “I think this should happen, judge, on behalf of my client child.” Well, that’s ridiculous. We have a five-year-old client, the client’s not going to tell you anything, and it is really just the lawyer talking. I can tell you from personal experience, a lot of these divorce lawyers, they come … We. We come, including myself, with a whole bunch of baggage and bias and other problems in our life, and it’s like I am not qualified to be making child custody recommendations on behalf of my five-year-old client.
That’s not what I went to law school for, that’s not what I’m trained for, but that was happening in the courts. We’re listening to it until they finally clamped down on it. But we still do see judges appointing these. I just think, like I say, if we’re in that boat, we have an intractable legal dispute that is it’s really a mental health problem. I think at this point, it’s no longer a legal issue. It’s just two people who are locked in Mortal Kombat, and a judge is just going to have to decide it, and bringing a whole bunch of layers of professionals in there don’t necessarily make it any better.
Judith Weigle: That’s so interesting that you just said a mental health issue. I think I have to agree with you because, at some point, our emotions take over, we can’t even think clearly. We’re just entrenched in, “I just have to win. I am so right.” You’ve spent all this money, and so winning becomes primary, does it not?
Christopher Melcher: Yeah. Of course, there’s people who are listening who are going to say, “Well, what about the abuse?” Of course, that’s the exception. You have an abusive parent, they’re never going to agree to anything because they’re an abusive parent, and they’re going to make your life miserable. Why? Because they’re an abusive parent, and therefore, you’re going to go to trial, and you’re going to have to fight and you don’t want your child to have anything to do with this parent because they’re abusive. I get that. That’s always the exception. But what happens though is that in that’s an exceptional case, that may be one out of 100, one out of 1000 that we have that, but what happens then is then all 1,000 cases get treated exactly the same. Oh, we have to fight, we have to do this.
The system is what we have, but unfortunately, our courts are adversarial systems. It’s petitioner versus responded, and this is not a great model for resolving most family law disputes. They’re not really adversarial. It’s more of an educational process, like what are my rights? What are my responsibilities? How is this custody plan going to affect the child? What agreements can we reach? We need to do this collaboratively or looking at it in a way holistically for the sake of the family, not in an adversarial put on your first witness cross examination.
Judith Weigle: Speaking of which, I want to address the issue of children testifying. Because so many times, I hear, even in my own office, “Well, let’s just get our son or daughter to testify, and then it’ll clear everything up and the judge will know exactly what to do.” Can you please speak to children testifying? How old do they have to be and the value of this?
Christopher Melcher: This has changed in the time that I’ve been a family lawyer. When I started, one of the first things I was told is you never bring a kid to court. They’ll murder you. The judge will literally murder you there if you ever bring a child in to testify. I was like, “Okay.” But then things changed, and now we’re more open to the idea. I’ll deal with the extreme. There are cases in domestic violence where the child witnessed the event. Let’s use our working example. Something happened on a plane, somebody says there was abuse, the other parent says, “No, it wasn’t abuse,” and now we have child or children on the plane who witnessed whether it happened or not, and if somebody is going for a restraining order, which is a very serious thing.
Maybe Angelina wants to bring the child in or children into say prove this happen. Maybe Brad wants to bring the child or children in to prove it didn’t happen. Courts are definitely open to the idea of a child testifying in those circumstances because the stakes are very high for a restraining order, and the child may be the only witness. But we definitely have to look at the age of the child, what the child allegedly saw, and the impact that this testimony would have. There are some alternate means to get child testimony which you could be having a neutral person interview the child and then reporting into the court, or maybe through an evaluation or maybe scripted questions so you don’t have a child’s parent doing the cross examination.
But ultimately, we know this affects kids. Who wants to testify against a parent when you’re a child? It’s a horrible thing to put a child through. I would be looking for all kinds of ways around this, if I were on that case, and only bringing in the child if I thought it was absolutely necessary. It would have to be a key issue in the case, the issue in the case, where the child wanted to testify, that would be a big thing to me, and it was really the only way to serve the child’s interests. To me, and looking at our case example here, who cares what happened on a plane five or six years ago? I’m sorry, I don’t care.
I’m believing everything that happened on that plane, but it’s too old, there haven’t been other incidents, and I’m really having a hard time believing that even if abuse occurred, that under these circumstances where we have no indication that anything else has happened and he’s checked all the boxes and did all the things that he was supposed to do, that this is going to affect how we should divide custodial time going forward based on an incident that happened six years ago. I have a hard time with that. Now, I know Angelina wanted to bring several or all of the children, I don’t know. There were children’s testimonies.
There was a request for child testimony that was denied by the court, and that she was critical of that. Again, she may have other things. We don’t know, we’re not in her shoes. She may have other incidents that she wanted to bring to the court’s attention that she could only do through the children’s testimony. If it was about the plane incident, I think that’s wrong to bring a child in for something so long ago. But if there was something more recent, and that it could only be proven through the child’s testimony, then I would agree that that would be indicated, and then we would just look at the manner in which that testimony was taken. Then if Brad was on the other side facing that, he has to decide, do I really want to put my child through this?
Maybe I agree, maybe the dispute, we don’t know what’s happening behind the scenes. But if she’s saying, “Hey, I’ll agree to 30%,” he knows, no, I want 35, and she’s like, “Well, I’m going to call the kid as a witness over the 5%,” I would say that’s really horrible parenting decision on Angelina’s part if she were to do that. But it could also be a really horrible parenting decision on Brad’s part to refuse the 30% because he’s going to put his kid through testimony over 5%, and who cares about 5%? What I’ve learned in family law is there’s nothing black and white, there’s no absolutes. Every argument, every position has a counter position, and we just have to look at the whole big picture.
Judith Weigle: Then there’s one more aspect of that that I started thinking about, and that was, well, what exactly did happen? Was Maddox acting out? He was a minor child. Were they in a disagreement? What was the physical act really like? Then that started me thinking about, years ago, again the Dark Ages when I was younger, there’s a cultural shift from what is appropriate touching in a reprimanding situation? That’s shifted to nobody’s allowed to touch their children. Spanking was totally acceptable years ago. Where is it now?
Christopher Melcher: Yeah, it’s definitely changed, and I’m hoping for the better. We did a lot of things differently in the past that were wrong, and now there’s really no tolerance for any kind of corporal punishment. There’s still, I think, a right to do it as a parent, but you’re probably not going to fare well in family court if you’ve exercised that right. These are the nuances that we get into because we’ve seen physical altercations between a parent and a child, and then had to bring in the child to testify as to whether this was an act of self-defense by the parent, which certainly could be true. Who’s the aggressor here? Who’s hurting who here in this dispute? You can have kids who are a lot bigger than moms or dads. We have to get into all that.
Ultimately, to me, again, I think people, like you’re indicating, get hyper-focused on the incident. What happened on the plane? To me, I’m zooming out and saying, “Look, there’s a bigger issue here that we’re trying to address, which is how are we going to share time going forward? If we get too hyper-focused on this thing, we’re not going to ever get through it.” We can make some assumptions about what happened, try to make some orders, do things like Brad did, saying, “Hey, I’m not admitting any guilt, but yes, I will go through with this counseling and monitoring, et cetera,” to move past it, because we got to deal with the big issues, not these micro ones.
Judith Weigle: And move away orders. Like Kanye West and Kim Kardashian, they really live in two different states. One of the accounts I was reading with Brad Pitt and Angelina is she doesn’t really want to live in Los Angeles. Brad pretty much lives in Los Angeles. She wants to live in another state. How is that dealt with?
Christopher Melcher: Well, that was a question that I have about this particular case, because you have two successful, hard-working parents who are traveling probably all over the world and have commitments all day long. How much time are they really spending with these kids? How much time is really being delegated to nannies and childcare providers by each parent? If that’s true, if she … If Angelina is using a lot of childcare, okay, well, who’s really parenting these children and why are we having a six-year custody dispute when maybe the nannies spend more time with the kids than the parents? I don’t know. I don’t know if that’s true, but I’m thinking it must be true during certain times because they’re still working.
That’s where I say it’s easy to get in the weeds and focus on what happened on the plane, but then it’s more challenging to people to really say, “What are you trying to do here? What are you trying to accomplish? How does this meet your children’s needs to have a six-year dispute? How is this going to serve them?” Really, it’s uncomfortable. People don’t want to be challenged. It’s much easier to just say, “Oh, I just want to litigate over this finite incident over something that happened six years ago,” than to say, “No, what are you really trying to do here? What are you trying to accomplish here, and how are your actions serving that goal?”
Judith Weigle: That’s an excellent point you just made. It is much easier to have a third person make a decision, i.e., the judge, than it is to relax, relax what your previous positions were, and really explore in conversation what will work for the raising of our children, for our children’s lives. That is why we’re here, is to raise healthy, normal, happy children. That’s really hard to do. People say mediation is a better way, and I’m saying mediation is hard. You have to bear your soul in mediation to a certain extent, and change what you have previously said. A lot of people’s egos are on the line. They don’t like to change. What do you think about that?
Christopher Melcher: Well, that’s absolutely right, and brings to the earlier point we were talking about, is settlement is hard. That takes work and planning and effort and compromise. Fighting is easy. It’s reactive, it’s angry. These emotions come easily to us. That’s just part of also training, that when you’re in this mode of conflict all the time, you’re just naturally going to go to the negative place. I think what I’m trying to work with my clients is to get them out of that rut, and to be thinking forward looking, big picture, get out of this mess, don’t get bogged down in these little skirmishes. The ones that embrace that will see it and say, “Okay, yeah, I have to let some stuff go.” Because this will consume you, if you allow it to.
Judith Weigle: Right, and to your benefit to let it go. It really does serve everybody. You can have a happier life, you can have a little more time to yourself maybe. There are serious advantages to changing if you can. Yes. In conclusion, and I just want to address something that we all deal with, and definitely you do, and that is the language of divorce. When I hear things like we’re going to go nuclear, you’ll never see the kids again, custody battle, fierce. Do you hear these words coming out of your clients, and do you spend time trying to change the language of divorce?
Christopher Melcher: Well, I’d love to. Unfortunately, a lot of that stuff’s already said before I’m hired, and you can’t take it back. It’s pretty scary because there are people who get involved in a business dispute and they’ll hire a lawyer. Sure, that can be scary, your whole business could be at stake and a lot of money. But these are the most personal disputes out there. Fighting over our children, or house or income or futures or savings, everything’s at stake. If we have somebody who knows all of our deepest and darkest secrets telling us that they’re going to expose us and take everything from us or hire the worst lawyer in town to terrorize us, it’s bad and it’s scary. Or I’m going to cut you off, you’ll never get anything, I’m going to tell the kids X. This is terrifying to people.
Once those threats are made, they can’t be taken back, and it does so much harm when I come in or you come into a case where we’re trying to say, “Hey, let’s get along, let’s work together.” Well, there’s a lot of broken relationships there that we have to repair, and at least enough to get them to settle. That’s what I’ve learned as a lawyer, is that I can’t just in the first interview say, “Well, it’s community property. You divide by half and you got a kid and you do this, and support here’s a formula.” No one’s ready for that. Nobody is ready for that right now. We have to address some of these bigger issues of communication and trust and respect to understand what happened in this relationship to get enough of that back so we can get to a deal.
Judith Weigle: That was really great. Thank you for that, and thank all of you for listening. I appreciate each and every one of you. I know you got a lot out of this hour. You can reach me through my website, theamicabledivorceexpert.com. As always, have an amicable day.