| Back in September of 1993, after four years of marriage, my wife and I
divorced while living in Chicago, Illinois. We had a three year old son from our
marriage named Brandon. I agreed to give her physical custody of Brandon, with my
belief that, despite being chronically depressed and having a dependent personality, she
would be able to raise Brandon with my help. She decided to move back to her hometown in
Northern Iowa soon after our divorce became final. I agreed, since it was closer to
my hometown in Minneapolis. I moved back to my hometown of Minneapolis, Minnesota in
April of 1994 in order to resume every other weekend visitation with Brandon. By the
end of 1994, both my ex-wife and I were involved with other people. My ex-wife
decided to get remarried to the man she was with. The best way to describe this guy
is to say that he looked and acted just like Charles Manson!
Charles Manson
Strongly Resembled My Son's Step-Father, So I'll Refer to Him as
"Charles"
After she remarried and her maintenance ended, things gradually grew frosty between us.
She began to neglect our son's interests. The primary issue was the fact that
Charles was a maverick, die hard chain smoker and that he refused to refrain from smoking
in my son's presence. Charles even had the nerve to send Brandon home for a
visitation during the summer of 1996 wearing a Camel Cigarette t-shirt! All of this
exposure to second hand smoke was causing Brandon to have frequent ear infections and
otitis media. This, in turn, caused him to miss a lot of pre-school. Plus, it
was plain disgusting to pick him up for a visitation and have him and all of his clothes
wreak of smoke!
The last straw came in the summer of 1996. Charles had two teenage boys from a
pervious marriage who lived out of state with their mom. He had not had any contact
with these boys for over three years. Charles invited his two sons to come to Iowa
for a prolonged summer visit. Charles and my ex-wife decided to have these boys (who
were 14 and 16 years old) baby-sit my six year old son and compensate them for this work
by paying them with cartons of cigarettes!
Having found this out, I broke down and cried and decided take the plunge; to retain
an attorney for the purpose of modifying the original custody decree from my 1993 divorce
to give me sole physical custody of Brandon.
What unfolded next was what I could best describe as a roller coaster ride of high
emotion, anguish, joy, relief, despair, paranoia, and frustration. Here are some of
the highlights for you to ponder:
Not knowing any family attorneys in the area Brandon lived in, I first
sought out referrals from the local bar association. I was referred to an attorney
who, I later found out, was the black sheep of the entire legal community in Northern
Iowa. The attorney that I ended up retaining I found by letting my fingers doing the
walking through the yellow pages. An initial phone interview yielded enough positive
vibes for me to send out a $1500 retainer check, despite never having met her (e-mail me if you would like her contact
information).
I asked the local police for help, since Brandon was being watched by
two minors who were modeling cigarette smoking in front of him and endangering his safety
and well being in many ways. The police refused to get involved in any way, despite
the fact that
Iowa Code Section 453A.2 indicated that several misdemeanors were being
committed by supplying these young boys with tobacco.
I turned to a group called ASH
(Action on Smoking and Health) for help
understanding what legal precedents existed for custody cases involving children
involuntarily exposed to second hand smoke. I made a startling revelation after
reviewing some case histories provided to my by ASH: Prisoners
serving time in most of our penal systems were entitled to more civil rights than was my
son in that they are allowed to request non-smoking cellmates!
I filed a complaint with Child Protective Services of Northern
Iowa. The end result was a non-surprise visit (mandated by law) which infuriated
Charles and only inspired him to clean up his act for a few days. Needless to say,
Charles confronted me angrily the next time we met. He scoffed at my tactics saying
"whatever you were trying to do... it didn't work".
After consulting with neighbors and former work associates of Charles
(who sometimes worked in centers for mentally handicapped adults), I discovered that he
had been suspected of sexual misconduct at his two previous employers for having sexual
relations with female patients in his care. The weekend I found this out was the
most stressful of my life. I did manage to get a hold of another ex-wife of Charles,
who tried to reassure me that she didn't think her ex-husband liked boys. I found
this to be of little comfort (prayer was my only refuge).
About a month before we went to trial, I discovered that Charles had
been (as I had always suspected) buying and smoking marijuana in the home he shared with
my son. The new twist was that he was apparently inviting children from the
neighborhood to come in and "get high" with him.
My attorney filed my modification action in September of 1996. We depositioned
Charles and my ex-wife, and petitioned the courts to have both parents and step-parents
undergo custodial evaluations. Everything went well. The psychologist who
performed the custodial evaluations recommended that I be given custody, but not before he
pointed out all of my own inherent weaknesses and personality flaws to the court. We
went to trial at the very end of 1996. The two weeks in between the end of the trial
and when the judge filed his opinion were the longest of my life! On Tuesday,
January 13th I returned from my noon time workout and noticed that the voicemail indicator
light on my phone was on. I had a "feeling" as my fingers nervously dialed
up my voicemail box. When I heard my attorney's voice on the message, my adrenaline
started to run. She told me that while meeting with our judge in his chambers on
another case, he let her know how he was going to rule on my modification petition.
He was going to award me physical custody of Brandon.
I let out a scream that could be heard through the entire floor of my office. My
manager looked up from his lunch and smiled at me. He knew what had happened.
My son's ordeal was over. The actual custody transferal took place on the evening of
Saturday, January 31st. I still remember how I felt that night, after I tucked him
in bed. It was the same feeling, I suspect, that a personal with terminal cancer has
when they find out that their cancer is in complete remission and will never return.
Peace from God.
Looking back, I would say that there were approximately eight critical success factors
which helped me obtain physical custody of my son. I would like to itemize these for
you here. Please keep in mind that these critical success factors will only work
(and should only be used) if you are the parent who actually
should have sole or primary physical custody of your children.
Enough said; here they are:
Critical Success Factors
for Fathers Seeking Physical Custody of Their Children
Choosing the Right Attorney
I believe that selecting an attorney to represent me during my modification
action was the most important decision I
made. Having the right attorney helped me in almost all of the other critical
success factors I will mention later on. The primary factor which drove my attorney
selection process was that I wanted to have a female
attorney represent me. I know that there are probably many good male attorneys
practicing family law, but the ones I talked to were not in this group. I discovered
during my attorney selection process that female family attorneys inherently had a greater
understanding of the nuances of family law and that they were much more skilled at making
a case for me to have custody.
Keeping Complete Records and Documentation
I did not have a full blown journal available at the time I decided to pursue custody of
my son. But I did have mass quantities of receipts, personal organizer entries
(which denoted weekends I had visitations), credit card bills, cancelled checks, and other
paper trails. I spent about a month's worth of evenings of organizing this
information into a chronological testimony of my commitment to being a responsible parent
to my son. I ended up creating a 50 page journal of information within a Lotus
1-2-3 spreadsheet that I could easily sort and print based on several sets of criteria.
When I tallied up all of the money I spent on things my ex-wife was supposed to have
provided (i.e. haircuts, clothes, school supplies, etc.) as well as all of the the miles I
drove to see Brandon (480 miles per weekend) and the number of days I opted to take
visitation with Brandon (over 100 days per year), the numbers spoke for themselves.
Needless to say, when we entered this into exhibit during the modification trial, the
opposing attorney could do little but attempt to deride my journal as "copious
notes".
Petitioning for Custodial / Parental Evaluations
Yes, it cost me a lot of money (approximately $2400) and the experience is humiliating (a
good psychologist can see right through you). But the effort is well worth your
time. Getting the nod of approval from our court appointed psychologist put my
attorney at great ease before our trial. According to my attorney, the courts
typically agree 90% of the time with the decision of the evaluators with regard to
physical placement of children.
Talking to Your Children's Neighbors on a Regular Basis
If your situation is similar to mine (you suspect some no-good is going down in the home
of your children) a couple of reliable eyewitnesses can really help your case. In my
situation, I knew that something had gone down with Charles' kids when they abruptly ended
their visit in the middle of the summer. I retained a detective to investigate, but
the most of the information I obtained came when I asked a couple of the neighbors about
what they knew. I found out that Charles had struck his oldest son in the side of
the head during a heated argument after he claimed he couldn't be biologically related to
Charles. The boy felt compelled to seek refuge with juvenile authorities until mom
could pick him up. This information helped greatly during depositions, custodial
evaluations, and the modification trial.
Being Actively Involved in Your Children's Education
I had been to every school conference and planning session held for Brandon. I had
also made my own notes about work I did with Brandon during his visits with me which I
shared with his teachers. The real break came when my ex-wife agreed to allow me to
retain one of Brandon's pre-school teachers to come into his home during the summer of
1996 to provide him with some additional tutoring. This provided several
opportunities for an unbiased source to observe his miserable home life. I was
surprised -- I actually got this teacher to come to the modification hearing and testify
on Brandon's behalf. This was a big, big help.
Having the Right Judge Assigned to Your Case
My attorney had a very, very good feel for each of the six district court judges who
presided over the family courts. She also knew what reasoning and motivations each
judge had in making decisions on child custody cases like mine. My attorney told me
that there was one particular judge that we wanted, and we were lucky enough to get him
appointed to our case (I'm not sure how this is done, but it is probably a combination of
timing and luck of the draw). Judges, my attorney told me, more often than not make
custody decisions using their own common sense and discretion, and then look to the
evidence and the law to back up their decision.
Never Losing Your Temper
I have pretty good control of my temper, and so I was able to get through this difficult
period without losing my cool. The only time I came close was when Charles suggested
that I pay for his smoking cessation classes after I asked my ex-wife for the millionth
time to not allow him to smoke in front of Brandon. I think the importance of not
losing your temper cannot be over emphasized. You do not want to have to have the
courts and the judges hear about the times you lost it in front of your ex-wife or
children, even if you were the victim of the situation or circumstances.
- Running Your Custody Action Without a Budget
If you seek custody of your children, I am sure that you have good reasons for wanting to
raise them yourself. Why put their future developments at risk? Spend the
money to have those depositions, parental evaluations, and other investigative work
done. Your kids will thank you for it as adults!
Other Helpful Hints for
Fathers Attempting to Obtain Physical Custody of Their Children
Compile a Photo Album for an Exhibit
I do not know for sure if doing this helped my case or not (no mention of it is made in
the final ruling), but I did compile and submit into evidence a series of photographs I
took over the course of two years of visitations with Brandon to show the quality of his
home life with me. I also took photographs of the section-8 apartments and trailer
homes that he had lived in with his mother during the same period.
Video and Audio Evidence
Like something out of a cheap detective story, I bought and wore a wire while I was in
contact with my ex-wife and Charles. When Charles confronted me about calling in
Child Protection Services, he was quite verbally abusive to me, and Brandon was present.
My attorney used a transcript from the tape I made to successfully demonstrate that
Charles possessed a hostile and uncaring disposition toward me and Brandon. While
the transcript was useful for this purpose, the judge was not completely impressed with my
tactics. He noted this in his final ruling, implying that he took all such evidence
with a grain of salt since it was very easy for the wire bearer to bait the other party in
to losing their temper while the tape was running. I recommend wearing a wire
anytime things are less then friendly with you and your ex-wife or ex-girlfriend, only to
refute any accusation that you acted less than calm around them. Just be sure to
transcribe the tapes or videos you plan to use, as most courts probably wont listen or
watch the originals due to time constraints.
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