Why Conditional Custody Orders Are Crucial in High Conflict Custody Cases

Welcome to Vampire Divorce with Attorney Clarke Young. Hey everyone, welcome back to an on-new episode of Vampire Divorce with Attorney Clarke Young. I am your host Michael Young. Clarke here is a seasoned family law attorney. He's a consultant. He's also been an expert witness helping courts and families navigate the realities of these high conflict custody cases. Today's episode we're going to be talking about why judges in these cases often resist conditional custody orders even when they know those orders are effective. Clarke's going to explain all in just a second. Clarke, it is good to see you as always. Let's talk about what a conditional custody order is. I know they're designed to kind of tie the parenting time to the behavior. You can explain a little bit further, but why do the courts tend to avoid them in these borderline cases? Well Mike, thanks for having me first of all. The conditional custody order is actually the essential tool that the family courts have for dealing with borderline cases and other cases involving moderately severe or severe psychological diagnoses, mental issues with the other party. So when you're dealing with these cases, I guess I should say what happens in a conditional custody order? It's basically saying that rather than having just an alternating schedule, like it's a two week three day on, four days, the other parent, four days you, three days, the other parent. It repeats every two weeks or something like that or they divide it by 70, 30 or 80, 20% time, all those normal things that they do in every family court across the country. A conditional order is basically going to give the normal range parent, I guess you would call them the trusted parent, if you're looking at it from the course point of view. The additional authority to deviate to a degree away from the written order in order to achieve certain specific targets, if you will. And the target that they're really looking for, what they're trying to do in the conditional custody order is modulate and monitor the pathogenic parents poor parenting while emphasizing that parents good parenting. So they're trying to reward the poor parent, if you will, the pathological parent, the pathogenic parent, when they're able to regulate themselves. But when they get to a point where they're having a bad day or they have what I call borderline flare up and they just go on the rampage for whatever reason, it allows older children to call the normal range parent and say, you know, mom's having a bad day. Can I come and stay with you and come back another time or when the children are younger, there would be maybe a monitor involved the psychologist, the child psychologist who will talk to the child after every visitations and go through a checklist of how things went. If some pathogenic symptoms begin and behaviors arise in the child that aren't normal range, then the therapist and the parent who has primary custody can discuss what to do and they can limit the pathogenic parents time with the child temporarily subject to makeup time later. And so to get to the heart of your question, you can imagine that some judges are going to bulk at that because they're going to assume that the normal range parent is going to use that to remove the child, the parent from the child's life. And so they are very hesitant about that. The second reason is that most families don't have the financial wherewithal to be paying the child's therapist or another monitor with the psychology background, maybe a master's degree or something licensed and clinical social worker or a marriage and family therapist to actually monitor the situation every visitation. They're out there, they can do that, you've got to find them, but most judges are reluctant to turn over that amount of discretion to a third party. And that's really the law in the short of the answer is that it comes down to the judge needing to have a lot of trust in either the trusted parent or in the team that's been put together to monitor the mother's behavior and the child's behavior as well. So Clarke, given what you just said, I'm sure this creates a little discomfort for these judges, but how does the potential judicial fear of appearing punitive kind of influenced the custody decisions in these cases involving this type of behavior? Well, I don't know that the courts are so concerned about appearing punitive. I've seen a lot of judges that they'll lower the hammer when push comes to shove. But the larger problem I see is fighting stereotypes. And we talked about this in a prior episode, but a lot of men go into these situations with a very negative stereotype. It's basically either these physically violent, emotionally abusive, psychologically dysfunctional Monday night football watching alcoholic catheteros that don't know when and of a baby from another and could care less. And men, normal range men have to overcome that presumption. And I don't care if the judge is male or female, it seems to be almost universal. On the other hand, most women go in with a very positive stereotype. And that's the two of these wonderful, loving, nurturing supporter of Earth goddesses that couldn't do anything, let alone think of something that wasn't an absolute that's interest of the child. And that's the real rub. I mean, you can feel this. California, like many states, has a tender year's doctor now that basically they've statutes that have done away with it. The presumption used to be that a child under the age of three or four really needs to be with the mother more than the other parent. And they've done away with that on paper, but it's still alive and well in practice in a lot of courtrooms. So again, I don't think it's a matter of them being punitive. I'm sure that from, when I say I'm sure, I mean, I am, I know for a fact that sure 100% certainty that borderlines experience judges who don't give them everything they want as being punitive to them. I mean, there, the judges become the enemy. I mean, because from a borderline's point of view, there's no such thing as a neutral party. You're either for the borderline or you're again them. It's no black and white. And as soon as you say to them, I don't think you're a perfect parent, then you have somebody who's now hostile towards you as a judge. And that's something judges, I think, just have to get over and don't worry about because somebody has to tell these people with authority, some with authority and power. Again, you're relating to the borderline on their their communication channel, which is power control manipulation to see. So you can only go to power and control if you're a judge, right? So you got to relate to them on a power basis and say, no, I have the power you don't, you're going to do what I tell you. And borderlines will always experience that as being punitive, when in fact it's just somebody trying to modulate their behavior, vis-a-vis a child and the other parent, by the way. Because the spousal abuse, the psychological spousal abuse and spousal neglect is as great or greater than it is towards the child and the courts don't recognize that either. Clarke, we talked about this in a previous episode, but it kind of piggybacks on what you were saying. Why do the courts in your estimation prefer this vague cooperation language over what could potentially be these enforceable conditions, even after they've seen repeated failures of the cooperation? Well, I think we've addressed that pretty much. I mean, it comes down to the, again, the statutes have a resumption that 50-50 custody is in the best interest of the child. I mean, it's that silly. It's that stupid. It doesn't take reality. And then you have to, the party who wants to deviate from 50-50 has the burden approved to show either by proponents of evidence. In some cases, clearly convincing evidence that it's in the child's best interest to deviate from 50-50. So it's an uphill battle for a normal-range parent just under the law to get there. There's nothing in the law in the statutes that says unless there's a demonstration that the one parent or the other or both have modulated severe, severe personality disorders or character flaws, whatever it may be. So that's just the universe we're working in. And you just have to, how can I say, muddle through the process in order to get to a just and fair and healthy result despite how the system's set up. Right. Clarke, have you seen a resistance sometimes to conditional orders and it tends to prolong litigation and maybe even increase harm to the child? Well, that's a simple yes. I've only ever been able to get to in my own career, two conditional custody orders. And they work really well, by the way. But you're always fighting that and there's always resistance towards that. I mean, judges, again, they just don't want to go to the conditional custody order. To them, it's like a last resort. And from my frame of reference, it's the first tool on your, you should pull off the out of the tool shed and you should go right to that where there is upfront on day one credible substantial evidence that one party suffers from a modulated severe, severe personality disorder. So there you're to me, they're looking, the judges are looking through the wrong end of the telescope. And until and unless the system changes to where it starts treating these cases, much like they do domestic violence, restrain your cases, people are going to be are going to be courts are going to continue to destroy these families financially, psychologically, emotionally and generationally. It'll take three generations for these families to recover from what the courts are doing to this one generation. They don't get that. Clarke, I asked you this in a previous episode, but I'm going to kind of reframe it a little bit given what you just said. So so the light bulb goes on right for the judge in the case, they finally accept that the containment is is is working more than what, you know, what the consensus, right. So what what tends to happen then in that regard like our judges coming to you afterwards and saying you were right all along like what, what would you want the system to do you mentioned it about. Hey, this is the tool you should use first as opposed to last is it as simple as that. Yes, well, let's assume we did the long haul case and it's now two years down the road and the light goes on. You will see the court, the courts aren't going to apologize and you don't want them to that's not, you know, what they're there to do. But what you'll see is they'll suddenly say they'll turn to you as counsel and saying, okay, I denied your request for additional custody order twice before. And I'm going to do a subscript here, you will never ever get the custody orders you need when you need them. The courts are always going to be two to three hearings behind and that's just a practice pointer for every attorney out there for every litigant. You're never going to get the order you need when you need you'll get it later. And but then on that date, they won't get the new order that you need. They'll give you the old one that you needed. So you're always, there's a lag in the system by two or three court appearances on these things. But in this hypothetical, you now have the court having denied two requests for conditional custody order. Now you're there in the third time and now they're ready. Well, then you just, you set it up and it's everything we've talked about before. You know, you have someone who can deal with the parent alienation issue that can actually do reunification and recalibrate the relationship of the child with the perhaps alienated parent or even their alienated from their siblings or whatever it is. If somebody who has the skills to even work with someone who has borderline personality disorder and have them realized that they're not out to get the borderline parent. Throughout their best friend, they are the gatekeeper, excuse me, they're the gatekeeper to getting the borderline parent back into the family as a unit because you want the family functioning as a unit to the extent that it's possible with the borderline. And that's the ultimate goal. So when the judge realizes that, and I say this all the time, the other parties, the problem, my clients, the solution. And at some point, your owner, you're going to get that. You're going to see that. And when you do, this is what I'm going to be asking you for. And they look at me with this like, who are you kidding attitude look in their eyes. But I'll tell you after two years, they're talking to me like I'm their long lost friend. Well, Clarke, let's let's put a bow on this. And let's talk to that parent who's listening to this. And they've also watched courts hesitate to act decisively like you've encouraged them to. So what would you want them to understand about patients timing how these decisions do eventually shift their way? I think that's really a client care part of this. You have to manage their expectations. You have to educate them about how dysfunctional the family court system is with respect to these kinds of cases. You have to let them know that there is a team supporting them to win. You have to let them know how expensive it's going to be. You have to give them a realistic timetable about how long it's going to take for the light to go on for the judge. And for me, the hardest thing is especially with older children, explaining to them that honestly, their children are going to be psychologically main for life. Because at age 12, 13, 14, I'm sorry, the borderline's magic has been, the spell has been cast. And you can't dispel the spell. And that's always painful. But it never, ever stops parents from sacrificing everything else in their lives to try and save their children. At least two or three years of the same sort of psychological may mean they've been experiencing since birth. So it's a hard roadho as an attorney. I mean, you have to be strong for a lot of people. And you have to make sure the kind understands that things that are going on inside and outside the courtroom are all being handled. Well, sir Clarke, thank you so much for the time that insights and breaking this all down as always. I appreciate it. Thanks for having me. That's it for today's episode of vampire divorce. If you want to learn more, you want to connect with Clarke and learn all about his work is not only a family law attorney consultant, but also an expert witness in these high conflict custody cases. Do me a favor, visit Clarke Young.com today to connect with Clarke. Thanks again for listening. For you go hit like, hit subscribe, leave a review comment, share the episode with someone that needs to hear it. I am Mike Leon. We'll see you about it next time.