Hey, that's not what you told me last time!
April 18, 2010 1:31 PM Subscribe
(you are not my lawyer filter) My lawyer has 35+ yrs of experience in family law and is also a guardian ad litem. I am involved in a family case regarding legal custody in a state whose preference is for joint legal custody (not joint physical). He told me in the past that I had a good case for sole legal custody. Now that I am a defendant in a motion for joint legal, and the circumstances of the case have not changed, he is telling me something different, or avoiding most of my questions. How do I approach this?
I was awarded sole legal custody of my small child after raising said child on my own for several years. The non-custodial parent and I have been slowly expanding on an extremely limited visitation schedule. I suspected that the non-custodial parent would move for joint legal after a while (keep in mind that joint physical custody is not in question here) and so I asked my lawyer many times what to expect and whether I had a case. He usually brushed me off because there was no motion pending at the time. He also would reassure me that the court would not grant the NCP (non custodial parent) joint legal custody considering the circumstances of the case.
Now, there is a motion brought against me by the NCP. The circumstances of the case have not changed since the sole custody/limited visitation order except that everyone is a year or two older. My lawyer mentioned that he could object to the motion for joint legal and I supported that. However, during the court appearance, he told me that I didn't have a choice because the NCP has rights (wouldn't he have let me know this previously? instead of letting me think that I had a chance to object?) and now I am involved in a long and expensive joint legal custody review. I am not getting clear answers from my lawyer as to whether I have a good case. He says that he doesn't know which way it will go. He has not responded to every question that I have posed to him. When I finally asked him some very direct questions based on my observations (that, okay, WOW, I may not have a good case), he agreed with my assessment, even though it was quite different than what he has been telling me for a couple of years. And this revelation comes right in the middle of the process that I am in. I feel totally unprepared, even though I have specifically addressed this issue many times before the motion actually came into being. I know that the NCP is completely prepared. I can guarantee that I have put much more thought and time and money into my case over the years than the NCP, and I am really stumped to find myself here.
My lawyer has a high peer rating and a lot of experience and has no complaints against him.
I am wondering if any lawyers out there can relate to the this attitude in their own work. Has he been leading me on? Is he trying to "tell" me that he doesn't want my case anymore? I am nervous about being too confrontational because I have been through a few lawyers for various reasons, none related to the validity of my case ( I have had my current lawyer for over three years, and this situation has been developing over four years...meaning: in the first year, I went through two lawyers, and I have kept my current once since). My current lawyer had previously advised me to hold my ground, when now it is obvious that my "ground" is not only not gonna fly, but will likely count against me in some ways.
Can anyone give me some ideas as to how to approach him during this sensitive time? Is it time to look for a new lawyer? My throwaway email address is youarenotmylawyer@gmail.com.
This question is not about the details of my case, it is about my lawyer and his mixed messages. I am concerned that I need to have an extraordinary grasp of the law to even ask this guy the right questions, and I am concerned that he may have somehow deliberately or knowingly led me on. If I had a good way to approach him that was non-confrontational, I could possibly salvage this relationship. I do not want to find a new lawyer. But if it is called for, I will. And do I have grounds for a complaint?
I was awarded sole legal custody of my small child after raising said child on my own for several years. The non-custodial parent and I have been slowly expanding on an extremely limited visitation schedule. I suspected that the non-custodial parent would move for joint legal after a while (keep in mind that joint physical custody is not in question here) and so I asked my lawyer many times what to expect and whether I had a case. He usually brushed me off because there was no motion pending at the time. He also would reassure me that the court would not grant the NCP (non custodial parent) joint legal custody considering the circumstances of the case.
Now, there is a motion brought against me by the NCP. The circumstances of the case have not changed since the sole custody/limited visitation order except that everyone is a year or two older. My lawyer mentioned that he could object to the motion for joint legal and I supported that. However, during the court appearance, he told me that I didn't have a choice because the NCP has rights (wouldn't he have let me know this previously? instead of letting me think that I had a chance to object?) and now I am involved in a long and expensive joint legal custody review. I am not getting clear answers from my lawyer as to whether I have a good case. He says that he doesn't know which way it will go. He has not responded to every question that I have posed to him. When I finally asked him some very direct questions based on my observations (that, okay, WOW, I may not have a good case), he agreed with my assessment, even though it was quite different than what he has been telling me for a couple of years. And this revelation comes right in the middle of the process that I am in. I feel totally unprepared, even though I have specifically addressed this issue many times before the motion actually came into being. I know that the NCP is completely prepared. I can guarantee that I have put much more thought and time and money into my case over the years than the NCP, and I am really stumped to find myself here.
My lawyer has a high peer rating and a lot of experience and has no complaints against him.
I am wondering if any lawyers out there can relate to the this attitude in their own work. Has he been leading me on? Is he trying to "tell" me that he doesn't want my case anymore? I am nervous about being too confrontational because I have been through a few lawyers for various reasons, none related to the validity of my case ( I have had my current lawyer for over three years, and this situation has been developing over four years...meaning: in the first year, I went through two lawyers, and I have kept my current once since). My current lawyer had previously advised me to hold my ground, when now it is obvious that my "ground" is not only not gonna fly, but will likely count against me in some ways.
Can anyone give me some ideas as to how to approach him during this sensitive time? Is it time to look for a new lawyer? My throwaway email address is youarenotmylawyer@gmail.com.
This question is not about the details of my case, it is about my lawyer and his mixed messages. I am concerned that I need to have an extraordinary grasp of the law to even ask this guy the right questions, and I am concerned that he may have somehow deliberately or knowingly led me on. If I had a good way to approach him that was non-confrontational, I could possibly salvage this relationship. I do not want to find a new lawyer. But if it is called for, I will. And do I have grounds for a complaint?
sigh I do know what ad litum means and even how to type it, but my fingers get very stupid sometimes (often).
posted by Some1 at 2:16 PM on April 18, 2010
posted by Some1 at 2:16 PM on April 18, 2010
"The circumstances of the case have not changed since the sole custody/limited visitation order except that everyone is a year or two older."
One circumstance has changed: the NCP has been complying with whatever visitation schedule you two have and presumabely hasn't done anything bad, like get arrested or violate a court order.
"However, during the court appearance, he told me that I didn't have a choice because the NCP has rights (wouldn't he have let me know this previously? instead of letting me think that I had a chance to object?) and now I am involved in a long and expensive joint legal custody review."
Obviously you still have a chance to object, but the NCP also has a chance to show why he or she would be a good parent and should get joint legal custody.
"I am not getting clear answers from my lawyer as to whether I have a good case. He says that he doesn't know which way it will go. He has not responded to every question that I have posed to him."
You're not getting clear answers because it's likely that the lawyer is also not 100% sure about how things will shake out. This is normal and expected. When you say that he hasn't answered every question you have posed to him, it sounds like you're asking him a lot of questions. That's understandable, especially when you say "I am concerned that I need to have an extraordinary grasp of the law to even ask this guy the right questions"
To answer your questions:
Has he been leading me on? Is he trying to "tell" me that he doesn't want my case anymore?
No, your atty has probably not been leading you on. Are you sure you fully understood the law and how things could have played out? I'm pretty sure that your atty would not have advised you that you would definitely be getting sole legal custody forever because that so rarely happens, the law doesn't want that to happen, and judges don't really like it either.
Also, the atty is not trying to tell you he doesn't want your case anymore. He's ethically obligated to see your case through, and if he wants to stop representing you he has to ask permission from the court. He may have a conversation with you about how it may be in your interest to stop opposing joint legal custody, but that won't mean that he doesn't want to represent you anymore.
I am nervous about being too confrontational because I have been through a few lawyers for various reasons
Your atty doesn't care about the previous attys. It's okay to be frank and honest with your atty; his feelings won't be hurt. Here are my recommendations for dealing with your atty in the future:
1. If you have questions, start writing them down. Once you have a list, call your atty and ask to schedule some time to talk about them, either on the phone or in person. You will definitely get all your questions answered if you go about asking them in an organized way, rather than calling your atty every other day with one question.
2. Don't ask the same questions again and again unless something changes.
3. Accept the reality of what may happen. Your atty will put on the best case he can, but he may also tell you that it's likely that you will be awarded joint legal custody. No matter how right or wrong you think this is, that's what's going to happen. Some facts are important to this determination--like, NCP has been calling and threatening me--but some facts aren't.
4. Think about the benefits of joint legal custody. It's not the end of the world if NCP is awarded joint legal custody, and if he messes up then you'll have ample opportunity to change the arrangement. Will your child want a relationship with NCP when he or she grows older? Graduates from college? Gets married? Has children of his or her own? Will your child benefit from this relationship?
posted by lockestockbarrel at 2:22 PM on April 18, 2010
One circumstance has changed: the NCP has been complying with whatever visitation schedule you two have and presumabely hasn't done anything bad, like get arrested or violate a court order.
"However, during the court appearance, he told me that I didn't have a choice because the NCP has rights (wouldn't he have let me know this previously? instead of letting me think that I had a chance to object?) and now I am involved in a long and expensive joint legal custody review."
Obviously you still have a chance to object, but the NCP also has a chance to show why he or she would be a good parent and should get joint legal custody.
"I am not getting clear answers from my lawyer as to whether I have a good case. He says that he doesn't know which way it will go. He has not responded to every question that I have posed to him."
You're not getting clear answers because it's likely that the lawyer is also not 100% sure about how things will shake out. This is normal and expected. When you say that he hasn't answered every question you have posed to him, it sounds like you're asking him a lot of questions. That's understandable, especially when you say "I am concerned that I need to have an extraordinary grasp of the law to even ask this guy the right questions"
To answer your questions:
Has he been leading me on? Is he trying to "tell" me that he doesn't want my case anymore?
No, your atty has probably not been leading you on. Are you sure you fully understood the law and how things could have played out? I'm pretty sure that your atty would not have advised you that you would definitely be getting sole legal custody forever because that so rarely happens, the law doesn't want that to happen, and judges don't really like it either.
Also, the atty is not trying to tell you he doesn't want your case anymore. He's ethically obligated to see your case through, and if he wants to stop representing you he has to ask permission from the court. He may have a conversation with you about how it may be in your interest to stop opposing joint legal custody, but that won't mean that he doesn't want to represent you anymore.
I am nervous about being too confrontational because I have been through a few lawyers for various reasons
Your atty doesn't care about the previous attys. It's okay to be frank and honest with your atty; his feelings won't be hurt. Here are my recommendations for dealing with your atty in the future:
1. If you have questions, start writing them down. Once you have a list, call your atty and ask to schedule some time to talk about them, either on the phone or in person. You will definitely get all your questions answered if you go about asking them in an organized way, rather than calling your atty every other day with one question.
2. Don't ask the same questions again and again unless something changes.
3. Accept the reality of what may happen. Your atty will put on the best case he can, but he may also tell you that it's likely that you will be awarded joint legal custody. No matter how right or wrong you think this is, that's what's going to happen. Some facts are important to this determination--like, NCP has been calling and threatening me--but some facts aren't.
4. Think about the benefits of joint legal custody. It's not the end of the world if NCP is awarded joint legal custody, and if he messes up then you'll have ample opportunity to change the arrangement. Will your child want a relationship with NCP when he or she grows older? Graduates from college? Gets married? Has children of his or her own? Will your child benefit from this relationship?
posted by lockestockbarrel at 2:22 PM on April 18, 2010
There was another similar question on this not all that long ago, and if I remember right, the general advice was to focus on the facts, and not on the relationship with the attorney. He's probably not telling you anything about his relationship with you.
I can't speak to the legal aspect, but it's obvious you're really worried about this. I wonder what other outlets you have for your anxiety in what sounds like a very difficult situation. In stressful situations, it has helped me to have outlets for processing my emotions until I could clearly see, "oh, my real concern here is X." Then I could ask the professional (like your lawyer) about X, since they were paid to talk to me about X but not to help me figure out my emotions. For me, sorting out the personal from the professional felt much better, and it helped me make my request from a more confident place.
It's tricky, because it's clear that you're very worried about this situation. And since he is the one who is supposed to defend your interests in this situation to the extent possible, it's hard to separate what aspects of the situation are inevitable, and what are a result of his actions. The situation is horrible. That they brought the motion sucks. His efforts to deal with the situation are ... quite possibly as good as the next person's? Is it possible that even the best efforts in the world could not make this situation less difficult than it is now? Is it possible that thinking a lot about whether you can trust him and his efforts is making the situation more anxious for you? (I don't know. Also, IANAL and honestly cannot say whether it sounds like he's doing as much as anyone could do, so I'm possibly just restating the question.)
In any case, this sounds like a really, really stressful situation for you. I hope you feel better and find a way to have trust in the legal help you are receiving (be it by changing attorneys or discovering that you can trust the one you have).
posted by salvia at 3:58 PM on April 18, 2010
I can't speak to the legal aspect, but it's obvious you're really worried about this. I wonder what other outlets you have for your anxiety in what sounds like a very difficult situation. In stressful situations, it has helped me to have outlets for processing my emotions until I could clearly see, "oh, my real concern here is X." Then I could ask the professional (like your lawyer) about X, since they were paid to talk to me about X but not to help me figure out my emotions. For me, sorting out the personal from the professional felt much better, and it helped me make my request from a more confident place.
It's tricky, because it's clear that you're very worried about this situation. And since he is the one who is supposed to defend your interests in this situation to the extent possible, it's hard to separate what aspects of the situation are inevitable, and what are a result of his actions. The situation is horrible. That they brought the motion sucks. His efforts to deal with the situation are ... quite possibly as good as the next person's? Is it possible that even the best efforts in the world could not make this situation less difficult than it is now? Is it possible that thinking a lot about whether you can trust him and his efforts is making the situation more anxious for you? (I don't know. Also, IANAL and honestly cannot say whether it sounds like he's doing as much as anyone could do, so I'm possibly just restating the question.)
In any case, this sounds like a really, really stressful situation for you. I hope you feel better and find a way to have trust in the legal help you are receiving (be it by changing attorneys or discovering that you can trust the one you have).
posted by salvia at 3:58 PM on April 18, 2010
(IAAL. IANYL. TINLA.) I think lockestockbarrel's answer is a good one.
The thing to remember is that the law is a bunch of grey areas: if everything were clear black-and-white there would be no reason to litigate. The law is a limited, imperfect and constantly evolving thing that cannot anticipate every situation its citizens will demand of it.
In short, your lawyer will never know the answer to how things will play out in a court proceeding. The best anyone can do is make an educated guess. It is likely that the answer is "it's too close to say," or "it depends." That is not at all unusual in the law.
One thing I do want to emphasize that lockestockbarrel touched on is this: you say the circumstances of the custody arrangement have not changed, but you are referring only to the logistics of the custody arrangement itself. There is a difference between that and what is materially relevant from a legal standpoint. For example, it is not unusual for the law to provide for periodic reconsideration, or to take into account factors which you might not have thought of.
I would suggest, going forward, that rather than ask a bunch of (from what it sounds) unfocused questions, you determine what result you want and why, (and - forgive me - because this is a family law case, whether the "why" is a legitimate good reason or has another motivation behind it) and discuss this with your lawyer. Let your lawyer tell you what your options are rather than trying to anticipate them. If you feel like you need to have your lawyer's expertise to ask him questions, I can't help but suspect you are asking the wrong questions.
On particularly frustrating days I have been known to exclaim that it seems like some clients think lawyers have a magic wand that allows us to produce predictable, desired results. The reality is much more banal: a lawyer's asset is superior knowledge of and familiarity with complicated laws and concepts. The rest basically boils down to a lot of (educated) guessing and strategizing. Lawyers do not possess foresight or the ability to rewrite the law to fit a particular situation. Frankly, it sounds like you need to accept that the reality of litigation is that there are no guarantees, and that there is always a possibility - regardless of how much "thought and time and money" you put in - you may not be able to get what you want.
posted by AV at 3:58 PM on April 18, 2010
The thing to remember is that the law is a bunch of grey areas: if everything were clear black-and-white there would be no reason to litigate. The law is a limited, imperfect and constantly evolving thing that cannot anticipate every situation its citizens will demand of it.
In short, your lawyer will never know the answer to how things will play out in a court proceeding. The best anyone can do is make an educated guess. It is likely that the answer is "it's too close to say," or "it depends." That is not at all unusual in the law.
One thing I do want to emphasize that lockestockbarrel touched on is this: you say the circumstances of the custody arrangement have not changed, but you are referring only to the logistics of the custody arrangement itself. There is a difference between that and what is materially relevant from a legal standpoint. For example, it is not unusual for the law to provide for periodic reconsideration, or to take into account factors which you might not have thought of.
I would suggest, going forward, that rather than ask a bunch of (from what it sounds) unfocused questions, you determine what result you want and why, (and - forgive me - because this is a family law case, whether the "why" is a legitimate good reason or has another motivation behind it) and discuss this with your lawyer. Let your lawyer tell you what your options are rather than trying to anticipate them. If you feel like you need to have your lawyer's expertise to ask him questions, I can't help but suspect you are asking the wrong questions.
On particularly frustrating days I have been known to exclaim that it seems like some clients think lawyers have a magic wand that allows us to produce predictable, desired results. The reality is much more banal: a lawyer's asset is superior knowledge of and familiarity with complicated laws and concepts. The rest basically boils down to a lot of (educated) guessing and strategizing. Lawyers do not possess foresight or the ability to rewrite the law to fit a particular situation. Frankly, it sounds like you need to accept that the reality of litigation is that there are no guarantees, and that there is always a possibility - regardless of how much "thought and time and money" you put in - you may not be able to get what you want.
posted by AV at 3:58 PM on April 18, 2010
I agree with the person who said to write down your questions and schedule a meeting with your attorney to ask them, or ask them all at once. If you're asking random questions every few days, it's hard for them to remember exactly what other things you've been asking, because they have a lot of clients, and probably mostly other family law cases. If you meet with them, you'll have their full attention and be able to ask for further explanation on the spot instead of in a chain of emails.
Lawyers can't predict with certainty what would happen. If the law were black and white and the rules were simple to interpret, there would be no need for lawyers.
If they were really giving you a strong impression that you had nothing to worry about and now they're saying the opposite, you can point-blank ask them, "before you said that this wouldn't happen, now you're saying it might, why has your opinion changed?" If your lawyer is offended by this, they probably aren't a very good lawyer. A good lawyer won't take questions like this personally and will try their best to answer it. Just don't be combative about it.
posted by ishotjr at 4:14 PM on April 18, 2010
Lawyers can't predict with certainty what would happen. If the law were black and white and the rules were simple to interpret, there would be no need for lawyers.
If they were really giving you a strong impression that you had nothing to worry about and now they're saying the opposite, you can point-blank ask them, "before you said that this wouldn't happen, now you're saying it might, why has your opinion changed?" If your lawyer is offended by this, they probably aren't a very good lawyer. A good lawyer won't take questions like this personally and will try their best to answer it. Just don't be combative about it.
posted by ishotjr at 4:14 PM on April 18, 2010
I am a lawyer, not your lawyer and this is not legal advice. However, when dealing with a problem of this sort, a formal letter is needed. Take your time, write down everything you are asking here, and then write a frank letter requesting specific direct answers to each question. Number the questions so that he is made aware of each and every question you want answered. Print the letter out, sign it, make a copy for your files, and then fax and send the letter by mail.
Instruct him to answer every question in full and in detail.
He will answer them.
posted by Ironmouth at 4:40 PM on April 18, 2010
Instruct him to answer every question in full and in detail.
He will answer them.
posted by Ironmouth at 4:40 PM on April 18, 2010
Unless the child has an independent estate, I think in most jurisdictions, all legal custody would involve would be access to medical and school records.
Joint legal custody shouldn't just be waved off as "it's a pro forma informational role, and custodial parent still makes all the decisions." Joint legal custody can determine some or all of the following, depending on jurisdiction:
- NCP's right to equally make academic decisions. Not merely to be informed after the fact of report cards... but to participate in advance regarding choice of school, choice of teachers, choice of curriculum, whether or not the child may participate in extracurricular activities and to what extent.
- NCP's right to equally participate in medical and health decisions. Not merely what hospital for a major surgery... but down to detail like how often to visit the pediatrician, what vitamins to take, what foods to eat, whether the child will have orthodontia and if so what kind. "Medical" and "health" are broad terms.
- NCP's right to equally participate in religious upbringing. Whether to attend church, how often, what religious beliefs are taught and in what way.
- Once granted, joint legal custody can sometimes have the effect of limiting where the custodial parent may live, i.e. how far away from NCP he/she may be allowed to move without risking loss of rights.
- Joint legal custody (as the OP has likely surmised) would certainly be a next step in a long-game effort to whittle down physical custody.
So, while the OP is asking primarily about his/her attorney relationship, for posterity it should be pointed out that a strategy by the other parent to move for joint legal custody isn't insignificant.
posted by pineapple at 10:55 PM on April 18, 2010
Joint legal custody shouldn't just be waved off as "it's a pro forma informational role, and custodial parent still makes all the decisions." Joint legal custody can determine some or all of the following, depending on jurisdiction:
- NCP's right to equally make academic decisions. Not merely to be informed after the fact of report cards... but to participate in advance regarding choice of school, choice of teachers, choice of curriculum, whether or not the child may participate in extracurricular activities and to what extent.
- NCP's right to equally participate in medical and health decisions. Not merely what hospital for a major surgery... but down to detail like how often to visit the pediatrician, what vitamins to take, what foods to eat, whether the child will have orthodontia and if so what kind. "Medical" and "health" are broad terms.
- NCP's right to equally participate in religious upbringing. Whether to attend church, how often, what religious beliefs are taught and in what way.
- Once granted, joint legal custody can sometimes have the effect of limiting where the custodial parent may live, i.e. how far away from NCP he/she may be allowed to move without risking loss of rights.
- Joint legal custody (as the OP has likely surmised) would certainly be a next step in a long-game effort to whittle down physical custody.
So, while the OP is asking primarily about his/her attorney relationship, for posterity it should be pointed out that a strategy by the other parent to move for joint legal custody isn't insignificant.
posted by pineapple at 10:55 PM on April 18, 2010
I agree with Ironmouth. You need to have your questions answered. Especially given that you are confused and anxious, having the answers in writing where you can review them and think about them would be helpful. If you do this verbally, you might forget to ask some questions or forget some of his answers.
He also would reassure me that the court would not grant the NCP (non custodial parent) joint legal custody considering the circumstances of the case.
I have found that I can say one thing, and my client hears another. Your lawyer may have told you not to worry and meant, "You do not need to worry under the precise circumstances of the case as they exist now" and you heard, "You do not need to worry about the NCP gaining custody, ever." I am not blaming this on you. I think this sort of miscommunication is a natural reaction of the anxiety and uncertainty of litigation, and the difficulty that sometimes exists of translating legal issues into lay terminology. The only solution is to ask questions, but in an organized and productive way.
posted by Mavri at 10:13 AM on April 19, 2010 [1 favorite]
He also would reassure me that the court would not grant the NCP (non custodial parent) joint legal custody considering the circumstances of the case.
I have found that I can say one thing, and my client hears another. Your lawyer may have told you not to worry and meant, "You do not need to worry under the precise circumstances of the case as they exist now" and you heard, "You do not need to worry about the NCP gaining custody, ever." I am not blaming this on you. I think this sort of miscommunication is a natural reaction of the anxiety and uncertainty of litigation, and the difficulty that sometimes exists of translating legal issues into lay terminology. The only solution is to ask questions, but in an organized and productive way.
posted by Mavri at 10:13 AM on April 19, 2010 [1 favorite]
in some states, the non custodial parent CAN have access to the medical and educational records of the child....i don't know if the querent is in one of those states.
posted by bright and shiny at 4:14 PM on May 23, 2010
posted by bright and shiny at 4:14 PM on May 23, 2010
This thread is closed to new comments.
At any rate, if the court has appointed him as litem, you can't simply remove him. You would need to get the court's approval, and that wouldn't be easy with a clear cause. Replacing him as your attorney, is something different, and you simply should do that because of the conflicts inherent in the situation.
As for the over all cause, I'm can't be sure what chance you have without a great deal of detail. Unless the child has an independent estate, I think in most jurisdictions, all legal custody would involve would be access to medical and school records. If the parent is involved in the child's life (and paying support), there would have to be a reason for the court to withhold that information from the parent. It would also give the parent the ability to consent or withhold medical care, if that is an issue or has the potential issue, a separate order could be made.
As to why he gave you a non answer, it could be he wasn't aware of some of the content of the motion at time and not up on the case. (a very bad sign)
posted by Some1 at 1:58 PM on April 18, 2010