Five Myths of the Family Law System

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By Charles Bauer

During this time of disruptions in our court system, and our society, urgent questions about legal rights in personal family matters seem even more urgent. Getting meaningful legal advice on divorce, child custody, child support or the whole spectrum of “Family Law” is a challenge even in the best of times.  Here are five “myths” I often hear, and some realities I hope will dispel confusion.

Myth #1—”Divorce lawyers charge thousands of dollars and won’t even talk to you without a huge retainer.”  

I hear this almost weekly or see it on message boards. It’s about 98% false. Divorce lawyers, or family law attorneys, only charge by the hour for work they do after they are retained or hired for a case.  If a lawyer hasn’t been retained by you (meaning you haven’t signed a fee agreement or paid a retainer) that lawyer has a choice of either: 1) talking to you for free, or 2) asking for an agreed-upon (small) amount for an ‘initial consultation.’  Typically, first consultations, whether by phone or in person, are either free or can be had for a nominal charge.  How much is “a nominal charge”?  Well, often it’s $50 or $100 for about an hour. Does that seem like too much?  I have a drawer full of folks who thought they could save $100 by asking their neighbor, and ended up in a mess costing thousands.

Myth #2—“This is a 50/50 state so my husband/wife will get my kids half-time” or “The Courts here always favor the mother, so dads don’t have a chance” or “The Courts always give custody to dads.”

Each of these statements have been earnestly offered to me over the years by worried parents facing child custody conflict.  Each statement’s not only untrue but reflects a widespread cynicism about our family law court system, mostly from misunderstanding how family law decisions are made.  The truth is that around 90% of all family law cases are “settled” out of court—by agreement in mediation, or between attorneys, or between individuals.  So, a key to the family law system and what to expect is to understand how your case will actually move through the system, whether to an agreement (usually) or to a final trial (sometimes).  Each case has dozens of variables which affect how a settlement may happen as well as how a court is likely to view each parent’s behavior, personality, or history.  An experienced family law attorney will know how these variables are likely to play out in your situation and can guide your steps appropriately.

Myth #3—“My husband/wife/significant other is going to sweet-talk the mediator and I won’t have a chance.” 

First, mediators are not decision-makers.  They are there to facilitate and are not supposed to “take sides” at all.  The better mediators will sometimes do something called “reality testing.”  That means they might ask hard questions, which seem like they’re taking sides.  Example: one parent says, “I want to divide the time 50/50 with our five-month-old baby by switching homes every other day.”  A mediator who hears that may say, “Ok, what about the fact that psychologists say that will damage your child, possibly permanently?”  A good mediator can help compensate for the fact that there’s always a “power imbalance” between parents, because of different personalities, for example.  It’s human nature for some people to connect more readily but the best mediators are able to control that and focus on the issues at hand and not personalities.

Myth #4—“A custody evaluation/home study costs tens of thousands of dollars and the Court won’t accept it anyway.”

What scares people the most in child custody, it seems, is the idea of a court-appointed psychologist or counselor being appointed to do a “home study” on parents and kids to decide who gets custody.  In Idaho, they’re now called “Parenting Time Evaluations” but they’re also called “custody evaluations.”  Such evaluations have been around for many years, and every attorney knows the horror stories about costs and problems with the process, just like the horror stories about custody cases in general.  But there are also more counselors being accepted by local courts to perform these at more reasonable rates, compared to even a few years ago.  A custody evaluation is either a first option, or a last option, depending on the judge’s inclination toward using such procedures and costs have come down, to some degree.  Having an attorney with knowledge of the area evaluators, and with the local judges, is important in understanding how best to manage a high-conflict custody case.

Myth #5—“Grandparents don’t have any rights anymore!”   

Many state legislatures in the US have been at work to reinstate what had been known as “Grandparent visitation,” after a major “SCOTUS” ruling in 2000 which appears to say such visitation was unconstitutional.  Not so!  In Idaho, there have been significant amendments of existing law, as well as court decisions, which recognize and clarify the ability of Grandparents to seek visitation or even custody of grandkids, where such custody or parenting is proven to be in the child’s best interests.

If you have any questions about divorce, child custody, or family law in general, let us help. Give the attorneys at Gravis Law a call and we can set you up with a consultation to let you know your options.