Q. My ex-husband is remarried. His new wife recently had a baby and is now staying home. He filed a complaint for modification asking for custody of our children. I have always been their primary caretaker and only went back to work this year because my alimony ended. Our oldest is in kindergarten and our twins are almost three and attending full time preschool. He says because his wife can be home for the children all day and I am working, they are better suited to parent our kids.
Really, he just wants to get out of paying half of pre-school and reduce his child support. My lawyer agreed to a Guardian Ad Litem investigation. I am stunned because she recommended changing custody so that I only have every other weekend and Wednesday nights with our kids. My ex filed a motion to implement the recommendations. My lawyer says I need to offer him a 50/50 custody arrangement in hopes he will settle but I am terrified this could backfire on me and I might lose our kids. I can’t even imagine how I got here. What can I do?
A. Your ex cannot just get the judge to change custody in a motion session by asking for implementation of the GAL recommendations. Implementing GAL recommendations should only happen after a trial or, if there is some emergent situation, after an evidentiary hearing during which the GAL is subject to cross examination.
Your lawyer should know that and should be objecting to the process. If your lawyer is saying something different, you should begin shopping for more than Christmas gifts – you need a lawyer experienced in reading and taking apart GAL reports. A good place to start is with a lawyer who has both litigation experience and who actually does GAL investigations.
Your new lawyer will probably need to take the GAL’s deposition before a trial. A deposition gives your lawyer the opportunity to ask the GAL questions under oath and determine any underlying biases she may have and begin to poke some holes in the investigation as well as the conclusions reached. If the deposition goes well enough, your lawyer may be able to get the other side to back down.
Email questions to whickey@brickhones.com