MIC2
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MIC2: We're back with the most exciting conclusion ever of our mock trial. Welcome to our new listeners. We have a few new listeners this week. It's pretty exciting. Make sure you're subscribing and leaving us reviews if you like what you hear.

But if you haven't caught up, we have two parts that lead up to this episode we wanted to take you behind the scenes of an actual custody trial, but obviously we can't use real people so we.

MIC1: used 

MIC2: AI

and made our own couple with their own conflict. And we had a little testimonies in episode two.

And Julie is the judge in this situation. She's an attorney in real life, but she's being a judge for the purposes of this episode. So she is going to make her ruling based on the last two episodes and all the facts that came out in the. Trial. She's gonna give the ruling and then kind of explain the logic of getting there.

And this is very similar to what would happen in real life I think we talked a little bit about this [00:01:00] in the last episode. So you would go to trial, it might be like two days, four days. And then usually the judge will just say okay, bye. You'll hear from me

within two weeks. And then they. Get like a written

MIC1: version

MIC2: of what you're gonna go through.

MIC1: Yeah. So the statute says you have to get a decision within 14 days. To be honest, that doesn't often happen. A lot of people get frustrated, this is like a little bit of a tangent the rule says, to be honest, there's a lot of rules that it's not that they're not important, but no one's gonna call the judge on day 15 and be like, oh, you're in trouble.

Anyway, you are supposed to get it within 14 days. What will happen is you get an order and an opinion.

The opinion is the written decision. What I'm gonna do today is if I'm a judge who will do it on the bench, a lot of judges won't do it from the bench.

I think the main reason is for emotions. 'cause when people are, have to sit there and listen, their emotions get high. So you'll get an opinion that tells the people why they made the decision. And then the next thing they'll do is give an order that actually spells out the custody order.

So what I'll do today is I'll do an abbreviated version and by abbreviated these can usually last anywhere from 15 to 20 [00:02:00] minutes, maybe even more. What the judge will usually start with, which I will do, but fast forward is, say some positive things about each parent and then some criticism.

Mom, it's very clear you love the kids. But you've gotta be more supportive of dad and his time. Dad, I know you love the kids as well, and it's clear that they enjoy their time with Tess, but sometimes it comes off as that she's the parent and not you. That's a simple example,

and I always tell clients they're gonna say nice things about each of you, and they're gonna say something critical about each of you. It's just what they're gonna do. And then they'll say, if you have attorneys and you have very good attorneys who helped you on your case and blah da. So then what the judge will do is say, and this is what would be in the opinion, and also what the judge would say on the record.

And I'm obviously doing it somewhat abbreviated. But this is what would happen. They would say, pursuant to the statute 53 28, the factors to consider when awarding custody. I'm gonna address each one. Number one, which party is more likely to ensure the safety of the child that weighs E equally to each parent?

There's no safety concerns that were raised. Next one [00:03:00] is the past and present abuse committed by a party or member of the party's household, which may include past or current protection from abuse or sexual violence protection where there has been a finding of abuse that's not applicable.

Done. The information set forth with regards to child abuse which again, they're not applicable here. So then the next one that we get into is the level of cooperation and conflict between the parties, including which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child and the attempts of a party to turn the other.

I'm not gonna read the whole thing, but the exception is that if it had to do with the safety of the child, so that's 2.3. I did inadvertently skip over 2.2, which is violent or assault of behavior committed by a party. So any safety or violent behavior was not applicable in this case. With regards to the cooperation, the courts look for minimal cooperation.

Keep in mind they're not looking for you guys, skipping through the field. If I were the judge, I would say that [00:04:00] the party who is more likely to encourage, weighs slightly towards dad. He seems to be more likely to be facilitating. A relationship, whereas mom has done a little bit more gatekeeping.

Although keep in mind, weight of a factor doesn't mean it's weighed more than the other. So in this case, this wouldn't necessarily be said, but this, I would slightly, this weigh slightly in dad's favor. Factor three is a willingness and ability of a party. That's the big key here. A willingness and ability of the party to prioritize the needs of the child by providing appropriate care, stability, and continuity for the child, considering the parental duties performed by the party on behalf of the

children in the past and whether the party is willing and able to perform the duties in the future and attend to the daily physical, emotional, developmental, educational, and special needs of the child. That's a lot. But what people need to hear more is that what happened in the past is relevant.

But I think the courts are focusing more on whether the party is willing and [00:05:00] able to perform the duties and the willingness of a party to prioritize the needs of the children. And frankly here, I would say they're equal. I don't really think either one has shown the other is better than the other.

This sways equally to both parties. Next is the need for stability and continuity in the child's education, family, life, and community. Except if changes are necessary to protect the safety of the child, or party. Same. I think they're both equal in their stability and we already had in there that dad's not located to change the schools family, life and community.

It seems like, dad did move out of the area, but he is not trying to change everything. So I think this factor, again, weighs equally. I will pause and say that these are the types of things that the primary parent will not like. They will say, I've been doing it all. That's why I pointed out it doesn't matter.

The court's gonna find it equal in the case like this. Same thing for stability and continuity. Yeah, he moved, but he's not trying to rock the boat. All right. The next one is the, the child's sibling and other familial relationships. It was very clear that both parties have family and they obviously have each other.

There's no [00:06:00] other step siblings. So this weighs equally, the well reasoned preference of the child based on the child's developmental stage, maturity and judgment. These kids are young. Even if they had stated a preference, I would probably have given it little to no weight. I don't think that kids of these ages, really, first of all, I don't think they should have any say, frankly, in what their life goes into with two even evenly situated parents.

But they really didn't give a preference anyway. So I would say both kids love both of you and they wanna be with both of you as much as each other. No real weight here for either person, so that's equal. Which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child, adequate for the child's emotional needs?

Key word, adequate. Again, this does not weigh in either party's favor. This is an equal mom. When the situation would not like that, the next one is the proximity of the residence.

Again. Dad did move 40 minutes. He's at a rental. 40 minutes is on the very far edge of reasonable, but it's okay. It's 40 minutes is, it's okay. It's not great, but it's okay. So I would say there's no [00:07:00] benefit to either party on that one. The history of drug or alcohol abuse of the party, mental and physical or any other relevant factor are not applicable.

I would probably go back to say if on factor with the parental duties it is equal. I will say I would probably even it out a little bit and say, I think mom is a little bit more likely, how I evened out the willingness in the first.

Factor that we touched on, but again, they are so slight that I don't think they would really make a difference. So as I went through all of that, what you should have heard is most of it is not applicable or equal. So what that means is that they're on even playing field. And in the situation, even if I hadn't.

Changed up mom a little bit on the attentive to the needs. It doesn't just, 'cause I said dad was a little bit better, doesn't mean he's gonna get anything more than mom. It just is, it's just how I view it. And again, this is all judgment of one person and that's what you're stuck with a judge Sometimes the judge is somebody who I have and they're all great.

It's not to say, but I know some, I'm like, oh, this isn't gonna be this. I know they're soft spots or they're not soft spots. We [00:08:00] all do. It's not just me. So if I were the judge in this case. I would say this is a 50 50 case, but here's what I would do. My decision would probably be something along the lines of this, and I think this is a reasonable expectation in a case like this.

At least in Chester County in Pennsylvania. So I would have that they'd have shared legal custody, which again is very detailed in an order. Five paragraphs, give or take, about the ability to make decisions and cooperate with each other and communicate. What I would say is for the remainder of the school year, which would be very appropriate, January 7th, 2026, mom should have the remainder of the school year as primary, where dad would have every other weekend from Friday.

After school, or if no school three o'clock until Monday, drop off at school or if no school whatever, 3:00 PM I don't know, whatever. It's so Friday to Monday, every other weekend. And then every other time that I didn't reference would be moms except dad would have every Wednesday to Thursday after school, or if no school 3:00 PM to drop off at school or 3:00 PM so every other weekend, and then dad would've every Wednesday to Thursday.

So then what I would say is in the summer. Is when we would [00:09:00] transition to 50 50. So I would leave it as every other weekend. And then I would piggyback off of dad's overnight that he's had from January till now and say, mom now has every Monday, Tuesday, dad has every Wednesday, Thursday, and then they alternate weekends.

So what it looks like usually is drop off at school camp or whatever. On Mondays, if there's no school exchange, should probably be around nine. And then that goes until Wednesday. Same thing. And then at that point, and it's important to say if there's no school, 'cause if it's snow day or whatever, a day off at nine, that means in this hypothetical, dad's gotta take over and he's gotta deal with the childcare.

And then his time would be from that time on Wednesday to Friday, similar. And then they would do every other weekend. I would put in things like we already talked about, and I'm not gonna get through every condition, but right of first refusal for overnight care. I would put in the parties should consult with the, experts in the A DHD stuff for the medication and follow their recommendations. And I think dad, not giving the kid medication sometimes is probably following a recommendation. It's not a medication that you need daily. But I would put something in there about that. [00:10:00] I'd probably have them say use our Family Wizard for the calendar purposes.

And communication text is fine for perfunctory things, but for substantive con, communication, they would do our family wizard. And that's that the kids should remain enrolled. In the school district. I would leave that in there in the school district they were in. 'cause again, I wanna make sure the kids do have that continuity, but that's high level.

What I would do in the case like this, dad would have quote unquote one. And I think this is a case where mom would be quote unquote devastated because she would and that's where your lawyer's job is to manage your expectations. 

MIC2: And I think you had made a good point, I don't remember which episode that Mom's Concern was the kids' anxieties about schedule changes. And I think you had made the point that 50 50 is actually.

Better for that, because it's not like one random Wednesday night that might get canceled because of working late. Like it's more established, more stable. They're there for a longer period of time, so they'll feel more comfortable there.

MIC1: And I think so I would also say what I vacillated on was do every week on week off. These kids are [00:11:00] old enough for week on, week off. Honestly, if I were the judge, I would probably have hesitated on that because I would have thought that

mom would struggle a lot with that, which would therefore trickle down and not being the kid's best interest

MIC2: because it would be too long without them

MIC1: because she would be very anxious without them. And I think it would trickle into them. 'cause I think anxiety begets anxiety, right? So if mom is really anxious, it's gonna beget anxiety with them. Your kids can be anxious independently. I'm not suggesting it's her fault, but kids read a room better than anybody in the world.

When people tell me they, my kids have no idea. Yes, they do. They know. The next thing I wanna talk about is I had a meeting right before the New Year's Eve and it was an interesting one that I think I'd like to pick apart because long and the short of it is client has 50 50 with mom.

I represent dad. Mom is, I will say emotional to say the least. It was a long road to get to 50 50. My client, his dad had primary of very one and three. So that tells you it was a rocky road. But the great thing is, for about two years I didn't hear a word. And then of course I hear something so the client comes in and explains that mom [00:12:00] has gotten back to old ways and the text messages and the fuck you motherfucker and all that stuff.

And he came to me going help fix it. And what I wanna talk about next is I left him with. The court is not going to fix this problem

MIC2: ' cause he already has 50 50.

MIC1: but the issue that he's trying to fix is her behavior, and I'm like, look, courts are here to dodge the iceberg.

You are on the Titanic, you're heading towards the iceberg. The courts are trying to make sure you stay afloat. What they're not gonna address is the underneath of that iceberg, which is the. Therapy tools and the work you have to do to avoid the iceberg with the court order.

I actually said, what can you control? You can't control her, but you can control how you receive these messages. You can put her on mute. I remember when he left and we were together for about an hour and a half and he was honestly like, I feel so much better. What? 95, maybe even more percent of the lawyers would've done.

Let's file. Yeah, fuck it. Let's file, let's go to court.

MIC2: what we can get. 

MIC1: It was such a great experience in that moment. 'cause I was like, . I love what I said. I stand by what I said. It protects the [00:13:00] family.

It's the right thing. Yeah. Did I just talk myself out of 10, $20,000? I did, but I saved a family or I'm hoping that it helped save a family. But most lawyers. Don't pause and think what is the real issue and what is underneath that iceberg? So I'd this is my soapbox of 2026 is you're gonna talk yourself out of work if you're doing it right.

If you're doing your job right, you're talking yourself outta work.

MIC2: like these underlying ethical issues and I think why family law specifically attorneys get a bad reputation because people have the, someone spent $20,000 for to go into a courtroom and a judge to say,

I don't,

know why you're here.

I don't know why you're here. I can't do anything about this. 

MIC1: I think I always had that perspective, and I always did. Court is a last resort, not a first response, all of those isms that I have. But I think that meeting with that client was just a very refreshing time. Not only because I felt so good helping him in a way that didn't involve court.

No. Eventually it could happen. I can't. See the future, but that he was able to hear me and [00:14:00] realize that I was guiding him maybe in an alternative way, meaning not court, but in a way that was hopefully helping his family and he left happy. And so the important part there is I was confident and saying what I think is helping, but he was willing to hear it.

'cause a lot of people are like, no, I wanna go to court. And I'm like, you're not gonna win. And by when, I mean you're not gonna get anywhere.

MIC2: And I think sometimes, at least for me, like I would just know that I tried to fix the problem. So at least in my mind, it's like I went to my attorney, they said there's nothing I can do.

So at least I know , it's not like there's something I could be doing that I'm not doing.

MIC1: You're a hundred percent right. I wanna know I did something and.

A lot of people would walk out of there and go, I didn't get anything out of that, because it didn't end up in a courtroom. But the truth is court is gonna set you backwards, not just financially, but emotionally in your relationship. It's gonna cause issues.

Court never helps, frankly. It might give clarity, it doesn't help. It creates issues. The help comes when you look and see how can I change myself and what I control. As opposed to trying to get somebody else to [00:15:00] change. So I think that's the next one I wanna touch on because it was very Mel Robbinsy

MIC2: That's a big part of dealing with someone you're not with anymore and sharing kids with

MIC1: but this is always my concern. I am not exaggerating. 95 plus would've That would've been filed. 

MIC2: Yeah. Yeah.

MIC1: All right, so I'm gonna go do a call.

Yeah, happy year.

MIC2: to work. All right. Bye.