The Procedural Win: What you can learn from one father’s fight for custody (Part 3)

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 3 of a four-part overview of the Goldman international custody battle, the Hague Convention treaty and some practical lessons for your case. Click here to read Part 1, click here to read Part 2 and click here to read Part 4.

What Does David Goldman’s Case Mean To You? Focus On Procedure

It is easy in a fight for children to get distracted, dragged-down in a mudslinging battle of who’s-better, especially when your former loved ones now call you unfit, abusive, alcoholic, a no-good-something-or-other, a monster who does not deserve his children. They all wage their David Goldman battles, overseas or not. At least, that’s how it feels. It will take considerable restraint and willpower to turn the other cheek, but turn the other cheek you must, lest you remind your judge of an episode of Judge Joe Brown and lose focus on the first, most important issue in your case: procedural posture.

Procedural posture is the current stage in the case’s journey through the court system. Is the case on remand from an appellate court decision with specific instructions to retry an issue? Is the case in for an objection from one parent disappointed in a custody recommendation? Is the case back to court to modify a prior order and, if so, was the order a final order or a temporary one, and did it provide for joint custody or sole? These are not minor details for attorneys to recite in their opening remarks to the judge. They tell the judge what evidence is admissible at the hearing, what burden of proof, production and persuasion to apply, and who must carry the burdens, among other things. Neglect procedural posture, and you could spend your hour in court arguing point A only to find that point A was not even relevant!

For example, in Michigan, the Child Custody Act of 1970, MCL § 722.21 et seq., requires the family court to presume it is in the best interests of a child to have a strong relationship with both parents. However, the Act and its case law also require the court to assume a child should remain in an established custodial environment, absent strong proof to change it. Therefore, whether an established custodial environment exits is a preliminary factual question the court must answer before rendering a custody decision. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If it exists with one party, the other party must persuade the court by clear and convincing evidence that changing it is in the child’s best interests; otherwise, the preponderance of evidence burden applies. Moreover, to change it due to some change in circumstances, the court must only consider events that occurred after the date of the last custody order – waste time talking about what you did during your marriage, what your spouse was like as a parent then, what you envision a better custody order being, etc., in Michigan, and you will get an order summarily dismissing your case straightaway.

In David Goldman’s case, the procedural issue was whether Sean’s custody battle should take place in the United States, but his Brazilian relatives waged a who’s-better war. The family launched a media campaign in television, newspapers and magazines that revealed details about Sean’s life in Brazil, including his dreams of becoming a cook like his grandmother or a lawyer like his mother’s second husband. They claimed David was unfit to parent, neglectful, and even violent toward Sean’s mother. They claimed it was in Sean’s best interests to reside in Brazil. Presumably, they intended those arguments to support a well-settled or grave-risk defense under the Hague Convention. The problem was, they sounded in a “best interests of the child” analysis, which the court could not conduct and by the terms of Article 16 in the Hague Convention was without jurisdiction (power) to do.

For your case, you should have a frank discussion about procedural posture. Ask your attorney to describe your case’s procedural history. What stage are you in? Ask how the facts you intend to raise in court or with your opposing attorney fit. Ask whether it matters that the case is in for a modification to a divorce decree, or pending on appeal, or scheduled for an emergency hearing to issue a temporary order. (It does.) Look for citations in your attorney’s pleadings and briefs to statutes, court rules and case opinions that accurately identify your procedural stage and the laws applicable to it. If there are none, ask why and demand that they be included, if appropriate.

Make sure the arguments you voice are appropriate at your case’s procedural stage and for the laws applicable to it. If the only issue at your procedural stage is whether there has been a change in circumstances since your divorce decree, forget the arguments you wanted to make about what your ex-spouse did in 1995 just after the birth of your son, ten years before your divorce decree. If your issue is a question of law on appeal, do not waste time re-addressing and re-hashing factual questions that are much harder to overturn on appeal, receiving the ever-deferential abuse of discretion standard of review rather than the de novo or clear error standard of review. And if you do not have an attorney, you are responsible for doing all of these things. Your judge will not do them for you. Do your research, and plenty of it.

To help you prepare, with or without an attorney, take a notepad and draw two timelines, one at the top and one at the bottom. On the top timeline, chart your case’s history, from the date of filing to the date of your last order (including appellate orders). On the bottom timeline, chart all of the facts you intend to prove and arguments you intend to make at your next hearing. Draw a vertical line from the most recent entry on the bottom timeline to the most recent procedural stage on the top timeline. Then, ask yourself, Did all of these things I want to address happen in the past? If so, do they matter now?  If you already have a final order and your case is not on appeal for factual questions, they might not. Find a statute, a court rule or a case opinion that tells the court you can argue them now. 

Note: This is Part 3 of a four-part overview of the Goldman international custody battle, the Hague Convention treaty and some practical lessons for your case. Click here to read Part 1, click here to read Part 2 and click here to read Part 4.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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