I am thinking about Charlie Sheen’s custody case. If I were his lawyer, I think I would start by giving him the book “Ethics” by Aristotle (384 to 322 BC).

Aristotle catalogues and describes various virtues and vices, such as boasting or humility, and argues that the best way to behave is by finding the mean between the two.

It does not seem too different from the reasonable man test I learned in law school a couple of thousand plus years later.

I am all for “Do not be ordinary” as Robin Williams said in Dead Poet’s Society. And while I do not want my tombstone to say “Here lies a reasonable man”, I would advise Charlie Sheen that judges are more influenced by Aristotle and tend to favor the parent that seems to be the most reasonable.

The court has ruled that Joseph Reyes will be allowed to take his 3-year-old daughter, Ela, to church according to the Chicago Sun-Times.  Rebecca Reyes, who has full custody of the child in their divorce proceedings, said the father was breaching an agreement they made that Ela would be raised in the Jewish faith.

The court also ruled that the father would have Christmas and Easter holidays with the child and the mother would have the Jewish holidays.

But Reyes still faces contempt sanctions for taking his daughter to church in violation of a previous court order.

Mishcon de Reya, a law firm in London, England, has completed a study in which 2000 parents and 2000 children involved in divorce were interviewed.  According to the London Times, the findings were:

• one in three children permanently loses touch with a parent, usually the father, after the divorce.
• one in five parents said that their primary objective during separation was to make the experience as unpleasant as possible for their former spouse.
• one in five of the children said that they felt used by their parents.
• One in three of the children said they felt isolated and lonely.
• Half of parents said that they had been to court to fight over residential custody arrangements despite knowing it made matters worse for their children.

“The adversarial, blame-focused system is polarising parents and prevents them thinking forward about the long-term interests of their children,” says Sandra Davis, head of the family division at the law firm.  “As a result the courts are drowning, trying to sort out what are fundamentally behavioural and family issues, with lawyers being drawn into disputes over what time a child is picked up from school.”

“Who is your son’s teacher?” one of the moms at the bus stop asked me this morning.

While my wife has been busy being the PTA president, buying school supplies and clothes, and meeting the teachers, I have been working to pay for my kid’s food, clothing, shelter and future college tuition.

So I tell her, “I don’t know.  You’ll have to ask my wife.”

But I feel guilty about this.  It reminds me of the infamous Woody Allen deposition.  Woody couldn’t name his children’s teachers, favorite pajamas, shoe sizes or best friends.  In giving custody to Mia Farrow, the judge found that Woody was an uninterested parent.

Next time someone asks me, I’m going to know the answer to questions like these.

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.”

The mother removed her child from England, where the father lived, to her country of origin twice.  Both times the father sued under the Hague Convention and the mother returned with the child.  The father now has custody.

The mother wanted visitation under an interim order until a custody evaluation could be completed.  The father objected, concerned that the mother would abscond with the child again.

The English High Court, in Re A (A Minor), March 17, 2009, issued an order requiring that the mother wear an electronic ankle bracelet before being allowed to visit her child.

Read more at Jeremy Morley’s excellent International Family Law Blog.

David Rembert tried his divorce case against Angela Rembert and got joint legal custody of his two children.  But the judge also gave him primary physical custody and final decision making authority on all matters involving the children including the school they attend, membership in organizations, and other extracurricular activities.

Angela appealed contending that the order didn’t really grant joint legal custody because it gave David final decision making authority.

The Supreme Court of Georgia noted the joint custody statute provided that the judge may designate one parent to have sole power to make certain decisions.

Angela also complained that the decision to award primary physical custody to David was wrong because she was equally fit to be a parent.  The court noted that Angela had a romantic involvement with a married man prior to filing for divorce and said she intended to marry him after her divorce.  She also planned to be a full-time student.  She borrowed $43,000 from David to buy a car after the separation.  And she threatened the life of a neighbor.

David, on the other hand, intended to stay in the marital home, and was seeking a transfer from his job as a pilot to be a trainer with a more regular schedule.  The appeals court said this was ample support for the decision of the trial court and affirmed the decision.

Rembert v. Rembert, Case No. S08F1582, Georgia Supreme Court (Decided March 23, 2009)

The Washington Post has a story today by Staff Writer, Ann Scott Tyson, about parents using military deployment to gain an advantage in custody fights.   Custody fights are hard enough.  Imagine having to fight one from Iraq or Afghanistan.

By federal law, military members can request up to a 90 day delay in child custody proceedings.  But deployments are for 15 to 18 months.

So several states have adopted laws in the past two years to remedy this.  For example, Virginia passed a law this year to bar any permanent change in custody while a service member is deployed.  The District of Columbia does not have such a law.  And a similar law was killed in committee in Maryland this year.

Congress is expected to hold hearings on the issue next year.

Percent of custody cases that go to trial (5 percent)

Ratio of divorce cases where mom ends up with primary physical custody (5 out of 6)

Ratio of divorces where parties agree to joint physical custody (5 percent)

Noncustodial dads who see their children at least once a week (31 percent)

Percent of sole physical custodians who are men (7 percent)

Source:  “Not Your Dad’s Divorce”, Newsweek