Los Angeles Family Law Blog http://blog.clarkeyoung.com Published by Los Angeles Family Law Attorney — Clarke Young Mon, 31 Mar 2014 19:26:48 +0000 en-US hourly 1 Custody of Pets a Challenging Issue for Courts http://blog.clarkeyoung.com/2012/08/custody_of_pets_a_challenging_1.html http://blog.clarkeyoung.com/2012/08/custody_of_pets_a_challenging_1.html#comments Fri, 24 Aug 2012 23:52:51 +0000 http://blog-clarkeyoung.lawblogger.net/2012/08/24/custody_of_pets_a_challenging_1/ A recent article in the Los Angeles Times discusses the unexpected to-do that surrounds determination of pet custody. An increasing amount of money, time and resources is being spent to decide the fate of household pets, and the process can be as complicated as a child custody battle.

file00073561044.jpgComplications arise because the animal has no voice of its own, and can’t say who it’s rightful owner is or with which party it would prefer to reside. The average pet owner rarely thinks about routinely updating documentation to prove their relationship with their pet, so pet custody battles tend to be based on one party’s word against the other.

Pets are not just property that can be divided equally between parties, so it is up to individual judges to choose the criteria for determining the rightful owner. Do they go by which party the pet appears to like more, which party it obeys? Does the animal go to the party who originally purchased or adopted it, or the person who plays with it, buys its food and takes it to the vet? If child custody is awarded to one parent in a divorce, does that parent have a better chance of getting the dog because of the children’s attachment? If one party clearly loves the pet more, but the other party has excess money to pay the animal’s steep veterinary bills, what then?

Take a look at a prime example of these dilemmas in this article about Stitch, a very popular French bulldog.

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Follow us on Twitter! http://blog.clarkeyoung.com/2012/07/follow_us_on_twitter.html http://blog.clarkeyoung.com/2012/07/follow_us_on_twitter.html#comments Wed, 25 Jul 2012 00:53:41 +0000 http://blog-clarkeyoung.lawblogger.net/2012/07/24/follow_us_on_twitter/ We are now on Twitter! Follow us for updates on blog posts and articles on Borderline Personality Disorder and other informative Family Law issues!

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The “Virtual Visitation” Trap http://blog.clarkeyoung.com/2012/07/the_virtual_visitation_trap.html http://blog.clarkeyoung.com/2012/07/the_virtual_visitation_trap.html#comments Tue, 17 Jul 2012 20:28:25 +0000 http://blog-clarkeyoung.lawblogger.net/2012/07/17/the_virtual_visitation_trap/ THIS%20KID.jpgVirtual visitation is the latest custody-related family law fad. California family law courts are issuing virtual visitation orders in lieu of face-to-face visitations where face-to-face visitations are feasible, albeit inconvenient. This is not good. Virtual visitation orders should only be issued where in-person child visitations are not possible.

Admittedly, virtual visitation helps people like deployed military personnel who have no control over their deployments and work locations keep in touch with their families back home. In some cases it is the only medium through which a very young child is able to know the removed parent at all. In such cases, virtual visitation orders allow non-custodial parents and children to have a “virtual relationship”, which is better than none at all.

The current euphoria over virtual visitation is illustrated by an online article entitled “Virtual Visitation Helps Maintain Strong Parent-Child Relationships”. Unfortunately, this article, which is a press release written by a family law firm soliciting business, cites no scientific evidence to support its position. In truth, virtual visitations do NOT help maintain strong parent-child relationships. Family law is plagued by unexamined fads (like Judith S. Wallerstein’s wholly discredited single, primary parent theory)–and families across the country continue to be destroyed by these dysfunctional notions about human nature. Virtual visitations stand to be the next great destroyer of the American family unless its use is reserved for cases in which face-to-face visitation is impossible.

Under what circumstances, then, should courts refuse to replace face-to-face visitations with virtual visitations? First of all, courts must acknowledge that at some point allowing children to watch television, play video games and otherwise stare at a screen is detrimental to children. Secondly, convenience, personal preference, interference with a child’s normal schedule, and similar excuses should never be accepted by a court as reasons for substituting virtual visitations for face-to-face visitations. This is true regardless of whether the custodial or non-custodial parent is requesting virtual visitation. Thirdly, virtual visitations should not be used by the custodial parent to purposely limit face-to-face time between the child and the non-custodial parent. Fourthly, in the eyes of a parent who might otherwise have been awarded actual physical visitation time, or a parent who’s ex-spouse already allows unlimited online interaction without a court mandate, an award of “virtual visitation” is effectively an award of no visitation.

More fundamentally, the word “visitation” itself connotes physical presence. Seeing an image of your parent or your child on a computer screen is not any different from looking at a photograph or home movie. The addition of sound allows the parties to interact and carry on a conversation–just like a phone. If talking on the phone to your child is not considered in-person visitation, and watching a movie of a child’s school play isn’t considered in-person visitation, then why would a video chat be considered a substitute for face-to-face, in-person visitations?

Beneath these obvious misuses of virtual visitation lies a deeper, far more subversive problem. This problem was first identified by Marshall McLuhan in 1964 and is discussed in an article on this site entitled “Is ‘Virtual Visitation’ Visitation?”.

Until a computer can simulate the feeling of a hug or a kiss goodnight, or replace a well-brushed baby tooth that is put under a child’s pillow, by definition, “virtual visitation” is not visitation. Ask any child.

Click here to read more on the subject in the article “Is ‘Virtual Visitation’ Visitation?”.

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Deployed Miltary Servicemembers: Bill Preserves Custody Rights http://blog.clarkeyoung.com/2012/03/deployed_miltary_servicemember.html http://blog.clarkeyoung.com/2012/03/deployed_miltary_servicemember.html#comments Thu, 22 Mar 2012 22:18:31 +0000 http://blog-clarkeyoung.lawblogger.net/2012/03/22/deployed_miltary_servicemember/ Proposed federal legislation would require state family law judges, including California’s, to automatically re-establish, upon a servicemember’s return from deployment, the custody and visitation schedule in effect at the time the servicemember was deployed. Under current law, many servicemembers lose custody and visitation time when deployed because they cannot be present to defend against requests modifying child custody and visitation orders.

According to this March 19, 2012 “Washington Post” article, if, during specific qualifying types of deployment, custody is temporarily granted to another person, upon the servicemember’s return, the court would be required to re-establish the custody arrangement as it was prior to deployment. Essentially, the court could not consider the servicemember’s deployment in determining what custody arrangement is in the best interests of the child.

Qualifying deployments would include such deployments as those that prohibit the accompaniment of family members (e.g., combat assignments)l Also, deployments must be between 60 days and 180 months in duration.

As the “Washington Post” article points out, similar bills have passed the House six times since 2008, but none has passed the Senate.

If enacted, this bill will modify the The Servicemembers Civil Relief Act.

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Police Handcuff and Arrest 5 Year-Old ADHD Boy for Battery on a Police Officer http://blog.clarkeyoung.com/2012/03/police_handcuff_and_arrest_5_y_1.html http://blog.clarkeyoung.com/2012/03/police_handcuff_and_arrest_5_y_1.html#comments Tue, 20 Mar 2012 16:10:03 +0000 http://blog-clarkeyoung.lawblogger.net/2012/03/20/police_handcuff_and_arrest_5_y_1/ A five year-old kindergartener’s hands and feet were hand-cuffed with zip ties by a Stockton, California police officer who then arrested the five year-old ADHD sufferer for battery on an officer for kicking the officer in the knee. Lieutenant Frank Gordo was apparently victimized by five year-old Michael Davis. As an American, it is embarrassing to read articles like this November 2011 KCRA news article http://www.kcra.com/r/29847063/detail.html. As is unfortunately typical of articles like this, this article only hints at the real story and raises more questions than it answers.

Why were the five year-old’s parents not told for two weeks that their son was handcuffed with zip ties?

Why weren’t the parents called as soon as the decision to transport this child to a psychiatric hospital was made? In 2012, do American parents retain any rights to act on behalf of their children or can the State take a minor child into custody at will in much the same way the State can take possession of your dog or cat?

Why did this elementary school principal feel it necessary to call the police in the first place? Did both he and the classroom teacher lack the skills necessary to deal with a five year-old boy who suffers from ADHD? If so, what are they doing working with children?

Bringing in a police officer to intimidate, frighten, traumatize and subdue by physical force a five year-old who suffers from ADHD shocks the conscience of anyone who has a clue about child development and age appropriate child discipline.

The school principal stated that he calls in the police as a way of scaring children into behaving. There are better, time-tested methods for disciplining elementary school children.

While using the threat of death (real or perceived), imprisonment or physical violence against a five-year old who refuses to conform and comply with authority may produce the desired conforming behavior, these forms of coercion typically also produce in children a profound disrespect for authority who frequently show resultant delays in normal child development.

Children traumatized by overwhelming feelings of helplessness and powerlessness oftentimes do not do well academically or socially. Displays of overwhelming force intended to crush young psyches into submission leave children with deep seated feelings that the world is not safe, that no one will protect them (least of all the police and people in positions of trust and authority), and that are unwanted because they are bad.

The article quotes Dr. Shannon Cannon, UC Davis Professor of Education, who politely stated: “I have been around young children that, when they can’t express themselves, and don’t feel they’re being heard . . . they really need to make a loud statement in some way and it’s often a very physical statement.” That’s right: if you kick a dog often enough, hard enough and long enough, eventually he will bite you. Michael Davis needed attention. When no one would give him the positive attention he craved, he resorted to seeking negative attention, which makes Michael a normal, smart boy.

Incredibly, the guilt of Michael’s teacher, principal and school district staff only came to light after Michael was dehumanized and, essentially, tortured. The school knew this five year-old suffered from ADHD and that his ADHD was a major contributor his behavioral problems, yet the school district repeatedly refused to give Michael the federally mandated special accommodations to which he and all special needs children are entitled.

As a result, taxpayers were forced to foot the bill when, according to the article, Michael was “forced” to undergo a psychiatric evaluation at a local hospital. The reader is not told if Michael’s psychiatric evaluation was performed voluntarily or if it was performed involuntarily as part of his false arrest and subsequent mandatory admission to a psychiatric hospital.

Who won this “battle of the wills”? Nobody. The five year-old lost. His parents, by failing to sue the school district, also failed to honor their duty to society to ensure this never happens again to any child in the U.S. Law enforcement suffered blows to its duty to “Protect and Serve” and the public trust. Taxpayers ended up paying a premium to have Michael Davis evaluated at a hospital rather than at school. Taxpayers also had to foot the court costs associated with the District Attorney filing wrongful charges against Michael Davis. This in turn denied access to people who desperately need access to the justice system. Taxpayers are also saddled with the salaries and pensions of multiple school district employees who participated in this fiasco. The list of losers goes on, but the biggest loser in this debacle is Liberty and the rule of law.

There are larger legal, political and social issues at play here. The court dismissed the charges brought against Michael. It is tragic that, of all of the governmental players involved, only the court showed proper regard for the rule of law. When will America’s law enforcement community regain its understanding that it only has discretion to follow the law and that it must stop confusing the power to act with the right to act?

Ironically, Lt. Gordo most likely succeeded in reinforcing in this five year-old ADHD boy the exact attitudes, beliefs and behaviors (e.g., disrespect for authority) Lt. Gordo was summoned to Michael’s school to discourage.

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Parents Ignore Government Sponsored Child Abuse http://blog.clarkeyoung.com/2012/03/parents_ignore_government_spon_1.html http://blog.clarkeyoung.com/2012/03/parents_ignore_government_spon_1.html#comments Thu, 15 Mar 2012 15:17:14 +0000 http://blog-clarkeyoung.lawblogger.net/2012/03/15/parents_ignore_government_spon_1/ 1381644_kid_picking_raspberries_from_the_bush.jpgState-sponsored child abuse is epidemic in Los Angeles and throughout the United States as evidenced by law enforcement protocols, family and juvenile court proceedings, adoptions, foster care programs and, increasingly, schools. For example, in November 2011, Hawaii’s Child Protective Services, in cooperation with the Honolulu Police Department, traumatized a three-year old girl by taking her into custody to punish her momentarily distracted parents who forgot to pay $5.00 for two sandwiches at a Safeway. Read this Fox New story and ask yourself these questions:

Isn’t abuse, regardless of who commits it, still abuse? Or do you believe that a law enforcement uniform somehow excuses the wearer from responsible, socially accepted norms of behavior?

Who at Safeway was fired?

Who at CPS was fired and ordered to pay restitution from his or her own savings and assets to these parents (rather than from taxes levied upon innocent taxpayers)?

Who at the Honolulu Police Department was reprimanded and terminated?

What did the government do to ensure that the people responsible at each step in this psychotic process never work with children again?

Why are people who have a sense of human decency, a sense of proportion and balance, and a basic understanding of the difference between guilt and innocence, who possess common sense, normal judgment and compassion, and who have the courage to act on their convictions when confronted with obvious injustice, culled from the ranks of law enforcement in favor of people whose demonstrated stupidity borders on the primitive?

Shouldn’t statutes be enacted waiving sovereign immunity so that citizens have standing to sue government employees for what would otherwise be crimes if committed by anyone other than someone wearing a uniform?

Has American law enforcement lost its moral compass and ability to distinguish between innocent and criminal behavior? (At the “scene of the crime” the police knew or should have known that the Leszczynskis lacked the specific intent necessary to prove the crime of theft.)

Why didn’t the Leszczynskis sue Safeway, CPS and the Honolulu Police Department for a million dollars?

The answers to these questions are not pretty.

Above all, ask yourself: “What am I doing to “Protect and Save” my family and this country from the growing tyranny that is inherent in the government’s drive to force everyone to conform and comply with its orders–right or wrong?”

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UCCJEA and International Child Custody Jurisdiction http://blog.clarkeyoung.com/2009/12/uccjea_and_international_child_1.html http://blog.clarkeyoung.com/2009/12/uccjea_and_international_child_1.html#comments Tue, 15 Dec 2009 18:13:35 +0000 http://blog-clarkeyoung.lawblogger.net/2009/12/15/uccjea_and_international_child_1/ The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs many international child custody disputes involving California (or any state within the United States) and a foreign country. In addition, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) as made effective in the United States by the International Child Abduction Prevention Act (“ICARA”), which is a federal law, governs international custody disputes between countries that have both signed the Hague Convention treaty. Whether the foreign country has signed the Hague Convention or not determines how the California court can proceed as a matter of law and this determination in turn

greatly influences the outcome of the custody dispute.

For example, assume a child custody dispute arises between California and a foreign country that did not sign the Hague Convention. The first thing California must do is determine if, pursuant to the UCCJEA, California has subject matter jurisdiction over child custody. This is a critical question under this scenario because the California court is required to determine as a threshold question whether the foreign country has custody laws that “are in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act.” If they are not, the California court may elect not to apply the foreign country’s custody laws if its laws violate fundamental principals of human rights. Where the foreign country’s laws substantially conform to the Uniform Child Custody Jurisdiction and Enforcement Act and the California court determines that child custody jurisdiction properly lies in the foreign country, the California court is obligated to apply the foreign country’s laws. That is to say, once the threshold question of which country has jurisdiction is settled, the California court will proceed to make a child custody determination by applying either the Uniform Child Custody Jurisdiction and Enforcement Act or the foreign country’s custody laws, depending on which locus has jurisdiction.

As a practical matter, under the Uniform Child Custody Jurisdiction and Enforcement Act, the California court is required to consult telephonically on the record with the foreign court with both parties present before reaching its decision. This is not always a simple matter to arrange.

In the above scenario, the child’s physical whereabouts–whether in California or abroad–is not mentioned. This is because the physical location of the child is not relevant in determining jurisdiction. Once jurisdiction is asertained and the proper custody laws are applied, a custody determination is made. Note, however, enforcing the custody decision can be problematic.

Next, assume a child custody dispute arises between California and a foreign country that signed the Hague Convention. In this case the International Child Abduction Prevention Act applies if the child is under 16 years of age and is “wrongfully removed” (i.e., without the other parent’s consent) from his or her “habitual residence”. The International Child Abduction Prevention Act is not a designed or intended to determine the merits of a custody claim. Its sole purpose is to ensure that custody determinations are made in the country that was the child’s “habitual residence” before the abduction.

Under this scenario, one of two things happens. Either the California court determines that the foreign country has jurisdiction over the custody dispute in which case California relinquishes jurisdiction to the foreign country, or the California court determines that California is the “habitual residence” of the child and asserts jurisdiction over the custody dispute.

Even if California has jurisdiction, many challenges still face the parent who was deprived of custody. The dispossessed parent must still convince the California court that the child’s best interests would be served if the child were returned to the non-custodial parent. If successful, the non-custodial parent must then take that custody order and attempt to have it enforced in the foreign country where the abducting parent took the child. This can takes months and tens of thousands of dollars may be spent to secure the return of the child.

To add insult to injury, if too much time passes before the non-custodial parent secures physical custody of the child, a court could decide that the best interests of the child would best be served by allowing the child to stay with the abducting parent!

For these and many other reasons, it is essential that the dispossesed parent act quickly and decisively to effect the return of the abducted child. This can only be done by securing effective legal counsel as quickly as possible and by filing appropriate pleadings in both California and the foreign country.

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Pre-maturely Litigating Psychological & Custody Evaluations http://blog.clarkeyoung.com/2009/11/prematurely_litigating_psychol.html http://blog.clarkeyoung.com/2009/11/prematurely_litigating_psychol.html#comments Sat, 14 Nov 2009 17:23:20 +0000 http://blog-clarkeyoung.lawblogger.net/2009/11/14/prematurely_litigating_psychol/ Attorneys who either want to churn fees or who are afraid their client will not do well on a psychological/custody evaluation will oftentimes resort to litigating a psychological/custody evaluation during the evaluation. Their purpose in doing so is to unfairly influence the outcome of the evaluation. Unfortunately, they oftentimes succeed and the family is forced to endure a custody arrangement that is not based on the best interests of the children.

In California, the better practice is to wait until the psychological/custody evaluation is competed and distributed to the respective attorneys and the court and then, if you believe the evaluator’s methodology is problematic, challenge it by either impeaching the evaluator or by hiring another evaluator to perform a “unilateral” evaluation and to critique the first evaluator’s work. (Some states like California allow parties obtain “unilateral” evaluations without a court order; other states require permission from the court.) A “unilateral” evaluator is an evaluator hired by

one of the parties rather than an evaluator appointed by the court. A court appointed evaluator is commonly referred to (in California) either as the “court-appointed evaluator” or the “Evidence Code §730 expert”. In California it is likely a court will continue a custody hearing or trial to give the challenging party an opportunity to depose the psychological/custody evaluator.

Deposing the opposing party or the opposing party’s collateral witnesses and then submitting their depositions to an evaluator during the evaluation is risky business. First, you are effectively telling an evaluator that you think he or she is incompetent. Second, it is arrogant for an attorney to tell a psychotherapist how to do his or her job. Do attorneys really believe an experienced evaluator is not capable of discovering far more about the psychological dynamics driving the discord in the relationship than the attorney is? Third, I sincerely doubt most evaluators bother reading 150-page depositions.

“Litigating” a psychological/custody evaluation is different from preparing for the evaluation. It is absolutely essential that you completely fill out and document each question of (what is commonly called) the “Custody Evaluation/History Questionnaire” that evaluators give each party at the beginning of the evaluation to fill out. What I have seen all to often is a party submitting an inadequate “Questionnaire” and then his or her attorney feels compelled to compensate for the client’s inadequate response by litigating every aspect of the evaluation process.

Once the custody evaluation is completed and distributed, nine times out of ten the parties will not challenge the court-appointed evaluator even if they do not like the evaluator’s recommendations. This is so for several reasons, time and expense being two major reasons. The third reason is that unless the evaluator’s methodology is seriously flawed, it is unlikely the court (depending on the court) is going to reject the evaluator’s findings and recommendations. Indeed, if the evaluation includes a psychological evaluation of one or both parties or their children, it is unlikely a court is going to second guess the psychologist’s findings. It is more likely the court will accept the psychological findings but reject some of the evaluator’s recommendations. This can happen when the case has been before the same court for a year or more and the court understands the psychological dynamics driving the conflict.

If after reading the evaluation you and your attorney feel serious flaws exist in the evaluator’s methodology, it’s time to impeach the evaluator. How to impeach a evaluator is a question for another day.

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Divorce “Move-Aways” from Los Angeles http://blog.clarkeyoung.com/2009/09/divorce_move-aways_from_los_angeles.html http://blog.clarkeyoung.com/2009/09/divorce_move-aways_from_los_angeles.html#comments Wed, 16 Sep 2009 18:51:21 +0000 http://blog-clarkeyoung.lawblogger.net/2009/09/16/divorce_move-aways_from_los_angeles/ WARNING: Never attempt to litigate a “move-away” case on your own. As every divorce attorney in California who has filed or defended a “move away” case will tell you, this area of law is fraught with fatal technicalities and a single innocent mistep can cost you your relationship with your children.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is the controlling law. This statute has been adopted, with some minor modifications, in every state. We have litigated a number of “move-away” cases with great success.

1209814_little_girl_with_pigeons.jpgOne recent case involved a Nigerian couple residing in New Jersey. (Foreign nationals living in the U.S. are subject to the UCCJEA. Custody disputes in which one parent resides in the United States and the other parent resides in foreign country may be covered by the Hague Convention.) They had one young child and Mother decided she wanted to move to California. Father had to stay in New Jersey. Mother moved without Father’s consent and Father retained us.

At the hearing on jurisdiction, the New Jersey court and the California court conferred with each other telephonically, which is what the law requires courts to do when determining which state has jurisdiction. We were present in Pasadena and were able to satisfy the court that New Jersey had jurisdiction. Producing this result “tipped” the case in Father’s favor and within a month, Father was able to secure substantial custody rights in New Jersey.

As you can see, determining which state has jurisdiction oftentimes determines whether the parent/child relationship survives.

A word to the wise: Never make a general appearance in “another” state unless you want that state to assume jurisdiction over your marriage and children. Retain an attorney immediately to contest jurisdiction. She will make a special appearance on your behalf, which will prevent the other state from automatically assuming jurisdiction without first having a full hearing on jurisdiction.

“Move-away” cases are highly technical–and expensive. If you think retaining an attorney to defend a “move-away” is expensive, then think again about how much more it will cost to litigate an out-of-state case and how expensive it will be to visit your children. Don’t be penny-wise and pound foolish: retain qualified legal counsel.

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Consulting with Local Counsel http://blog.clarkeyoung.com/2009/09/consulting_with_local_counsel.html http://blog.clarkeyoung.com/2009/09/consulting_with_local_counsel.html#comments Sat, 12 Sep 2009 00:58:28 +0000 http://blog-clarkeyoung.lawblogger.net/2009/09/11/consulting_with_local_counsel/ We receive calls from all over the United States and Europe and from as far away as India asking for help in dealing with, among other things, Borderline Personality Disorder cases. These inquiries typically fall into one of four categories. First, many callers want to know if we know an attorney in their area who specializes in Borderline Personality Disorder. Unfortunately, with the notable exception of one attorney in San Diego, California, I do not.

Second, because I am a Los Angeles divorce attorney, some callers ask me to talk with their local attorney because she or he “just doesn’t understand what is going on.” I am happy to accede to these requests and I have never refused an invitation to coach local counsel on what Borderline Personality Disorder is, the typical shenanigans Borderlines engage in, and how a Borderline Personality Disorder case differs from all other family law cases.

Third, some callers want me to associate into their case and appear locally with their local

counsel. This I have done on a limited basis with great success and with no small amount of satisfaction.

Fourth, a few callers have asked me to testify as an expert witness. I have not yet testified as an expert, but that day is soon approaching. To be qualified as an expert, one must satisfy certain requirements, for example, publish several articles on a particular subject. In addition, one must carefully define the scope of one’s expertise. I am not a psychiatrist (i.e., an M.D.) or psychologist (i.e., a Ph.D.) so I cannot diagnose anyone.

Nevertheless, once a person has been properly diagnosed with Borderline Personality Disorder, I can certainly help a court construct appropriate custody plans, restraining orders, “contingency” orders and similar provisions.

In broadest terms, I can “translate” the psycho-babble contained in the psychological/custody evaluation into the legal terms and concepts with which the court is familiar. This includes explaining, for example, why standard custody provision simply do not work in Borderline cases, what protections need to be put in place to protect the children, what the psychological/custody evaluation means in practical terms, and how spouses and children experience Borderlines.

If I can help you, please do not hesitate to contact me.

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