A deposition is part of the discovery process in a custody trial.  Your spouse’s lawyer gets to ask you a lot of questions, some rude or embarrassing, at his or her office, in front of a stenographer who is taking everything down to be used against you at trial.  You are in the hot seat and it may take all day.

The lawyer has usually done this hundreds of times and knows a lot of tricks, trips and traps.  And the lawyer gets to ask the questions.  You have to answer them.

Here is the number one thing I tell my clients before their deposition.  Repeat the question in the form of a declaration, pause, and finish the sentence.  Put a period at the end of it and then stop talking.  Wait for the next question.

So the lawyer asks, “Where were you on the night of August the 7th of this year?”

You say, “On August the 7th of this year…I was at work.”

This approach has several benefits.  It gives you time to think.  It keeps you focused on the question asked.  It keeps you from talking too much.  It keeps you from guessing.  It keeps you calm.  And it might keep you from saying something that can be used against you at trial.

Joan and Jack, two venerable divorce lawyers, bumped into each other while having coffee in the café close to the courthouse.  They greeted each other effusively and sat down at a table together putting their legal files on empty chairs.

“I’ve got this tough case,” said Jack.  “My client is the mother and she wants the father to have no visitation at all.  The father will settle for nothing other than 50 percent of the time with the children.”

“So what are you going to do?” asked Joan.

“I’m going to tell the father that he has a career to worry about.  And he is going to want to have a social life.  There is no better baby sitter than the mother.  I’m going to try to talk him into less than 50 percent.”

“I’ve got another idea,” said Joan.

“What is it?”

“Tell the mother to let him have the children 50 percent of the time.  Lot’s of fathers idealize about custody of the children.  But once they try to juggle a career with the demands of little children, they find it is no easy task.  After a couple of weeks, he will be asking the mother to spend more time with the children.”

“Not bad,” said Jack, “For that salutary advice, I’ll buy you a doughnut.”

An ad hominem argument, also known as argumentum ad hominem (Latin: “argument to the man”, “argument against the man”) consists of replying to an argument or factual claim by attacking or appealing to a characteristic or belief of the person making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim. The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject. – Wickipedia.com

Maybe it is the stress of the holidays, but I’ve received two ad hominems this week, one against me and one against a client of mine, from opposing counsel who ought to know better.

The first accuses me of asserting a right without any legal basis and the writer says “as I have come to see your conduct, it does not surprise me.”

The second says “Frankly, it is puzzling that [your client] would fight for custody in light of his apparent disinterest in taking parental responsibility.”

Now you have to be fairly thick-skinned to be a divorce lawyer, and litigation is pretty rough and tumble in the heat of battle, so I don’t lose a lot of sleep over things like this.  But there is a Code of Civility in both jurisdictions where I practice, that says lawyers should treat opposing counsel and opposing parties with respect and courtesy.

Both of these ad hominems are unnecessary attempts to say “Shame on you.”  If anything they are counterproductive because they only cause the recipient to dig in their heels and redouble their efforts to prove them wrong.  So think twice before you hit the send button, reread your letter, and make sure it contains only those matters which move the case forward.

And for those who celebrate Christmas, remember that Santa is watching.

This post was contributed by Kelly Kilpatrick, who writes on the subject of a police detective. She invites your feedback at kellykilpatrick24 at gmail dot com.

If you’ve seen someone go through a bitter divorce and the even uglier child custody battle, you’ll know that the courts are not generally favorable towards the father, especially when it comes to securing custody of the child. Some fathers are happy to wash their hands of the responsibility of child rearing, but others are left devastated when their spouse gets sole custody and they’re asked to pay child support and alimony too in some cases.

Most judges are predisposed to awarding custody to the mother, simply because she is the one who’s had more time with the child, especially if he or she is pretty young. When you’re on the verge of a divorce, it’s hard to be rational and think before you act. But when it comes to your children and the fact that a court is going to tell you how you’re going to be allowed to relate to them for the rest of your life, you must put your emotions aside and use your head alone to save yourself a whole lot of trouble.

The first thing to do is to make your divorce amicable; I know it’s the hardest thing to do, part on good terms with someone you don’t want to live the rest of your life with. But if you share children, it’s the mature thing to do. This has a host of advantages, especially to you as the father. You don’t say things you may regret later, things that if overheard by your youngster, could end up harming your reputation in his or her eyes. Remember, your child is likely to be influenced by your spouse, so it’s best to remain on cordial terms with her.

A friendly divorce also allows you both to save a ton of money – you can bypass the lawyers altogether, seek joint custody of your children and reach a mutually satisfactory amount for child support and alimony. Better still, you remain on good terms so that your children feel secure even though you’re divorced.

I know I’m painting a pretty rosy picture where your spouse agrees to an amicable divorce and joint custody, but it’s worth a try, for yourself and your children. Rather than assume that your spouse would never go along with your suggestions, and that she is out to hurt you, be gracious enough to give in once in a while. After all, you were in love with the woman once, and by being the bigger person, you save yourself an acrimonious divorce proceeding and a lot of money in the process. Your spouse may also feel the need to relent once she sees how reasonable you’re being, so go ahead, give it a try. You’ve nothing to lose (other than what you will even if you don’t try) if it doesn’t work out, and everything to gain if it does.

“Thus, it was with a smirk that I picked up the book titled Father’s Rights by James J. Gross. I intended to flip through it, roll my eyes and pity the poor father who would take such a BS book seriously.”

That’s from Chicago divorce lawyer, Marie Fahnert, at JustDivorceBlog.Com.

But, after reading the book, she says in her three part review, “To my surprise the book is very good!”

The judge has continued the visitation order against Britney Spears for failing to show up at her custody hearing earlier this month.

Law Professor, Joanna Grossman, has written an instructive article on the lessons we can learn from the Spears case. She notes that Spears probably could have won custody, and maybe she could even now, but she continues to shoot herself in the foot. Here are some things not to do if you want to win a custody case.

1. Obey Court Orders. Spears lost access to her two sons last year when she failed to submit to a drug test.

2. Show Up for Court. This month, Spears made it to the courthouse, albeit 4 hours late, but then left abruptly before going into the courtroom. The judge continued the no contact order against her.

3. Behavior Counts. The court will decide who gets custody. The judge will make this decision based on which parent he or she thinks is going to be best for the children. The court will rely on the custody evaluator. If you are involved with drugs or alcohol and party every night, do not expect this to be in your favor.

4. The Judge Decides. Leaving it up to the judge, a stranger, is usually not the best way to get what you want.

5. Listen to Your Lawyer. Britney is on her third law firm and that one has petitioned to be allowed to withdraw from her case. Why pay a lawyer for advice if you are not going to follow it?

6. Custody is Always Modifiable. Britney could still turn this case around. But she has to turn herself around first.