Poor Advice?

[Berner_Faith]

Not sure who all remembers but I have my cousin and her baby living with us... we were finally able to meet with legal aid lawyer (free 30min at the court house), I have to say, I was shocked at the advice that was given to my cousin. I stayed in the room with her, as she was nervous about this meeting (re: her ex has anger issues, etc.)

Anyways, the lawyer was really young and started off good, explained custody, access and child support. As the conversation went on the lawyer tells her the following points...

1. The ex will have no choice but to pay CS and if he is not working the court will impute him an income equal to minimum wage
2. Due to the baby's age the ex will not get overnight access until the baby is older
3. Because the ex has not shown interest in the baby in a couple months, if he wants access it will be limited to a couple hours a week
4. Mom can and should request supervised access and parenting classes because Dad isn't involved
5. When it is time for overnights, Mom has every right to inspect Dad's house and make sure it is fit for the baby
6. Mom mentioned that Dad is a avid pot smoker (19 year old doesn't surprise me) and lawyer responded with, when it comes to access if Mom feels Dad is not in the right mind frame she can and should deny access
7. Because Mom doesn't drive, Dad will be responsible for all transportation and transportation costs

Just knowing the situation Mom is in and how Dad acts some of the points the lawyer pointed out were correct, however it got me thinking. This lawyer knows nothing about this girl or the Dad. Knows nothing about the relationship they had or have and is taking what Mom says as the absolute truth. There was no mention of Mom having to prove Dad unfit or asking why Dad has not been involved.

How does this lawyer know Dad wasn't trying to see his child and Mom was denying? How does this lawyer know that Mom wasn't making all of this up? The more I think of it, I truly feel she was given bad advice.

I agree that he has to pay CS and should be working in order to pay. He is 19 years old, he is more than capable of working, but chooses not too. I don't agree that he shouldn't get overnight visits, I don't agree with Mom getting to inspect his house and I don't agree with Mom being able to deny access if she thinks Dad is high. Not once did this lawyer mention Mom had to have proof of things to deny access.

I know Dad, not well but I have seen his anger outburst first hand. I have watched him stand in the middle of the street and scream at Mom and call her every name in the book, family have witnessed him hit her when she was pregnant, so yes I agree there needs to be some protection for this baby. But how can this lawyer just say these things without actually telling Mom she needs proof of certain things.

I can see why there are so many people fighting false accusations, these lawyers make it so easy. I can see why so many people are being denied access to their children or why Mom's think babies can't have overnights with their fathers. But to actually witness it first hand shocked me.

In this situation, the baby is thriving without Dad in the picture and I truly feel Dad would be more harmful to the child at this point than good. I just hope Mom doesn't get in her mind that she can shut Dad out completely because of a few incidents.

[HammerDad]

I agree that a portion of that advice was poor. But the lawyer can only give advice based off the information provided. And a 30 minute consultation is hardly enough time to give more than generalizations based off of what the lawyer is told.

Yes, the lawyer should have advised that if she has issues that she wishes to rely upon in her case, she will need evidence. But being that it was a 30 minute info session, I can see how it is missed.

As for the points:

1. The ex will have no choice but to pay CS and if he is not working the court will impute him an income equal to minimum wage.

This is pretty much true. But if the dad is a student, and always has been a student, he may have reasonable argument to say that he should be able to continue his education and thus be only attributed a minimal income, even lower than full-time min-wage.

1. Due to the baby's age the ex will not get overnight access until the baby is older

Tender years doctrine died years ago. Case law now is hit and miss on this. By the time this works it way through court, the child will likely be over 1y/o and thus overnights will likely be granted.

1. Because the ex has not shown interest in the baby in a couple months, if he wants access it will be limited to a couple hours a week

This is likely not true because this will become a he said/she said argument where he will say your cousin withholds the child or makes unreasonable restrictions. Your cousin will say the opposite. The judge, whose heard this a billion times before, will likely just order regular parenting time.

1. Mom can and should request supervised access and parenting classes because Dad isn't involved

There is nothing wrong with this. She can ask all she wants, it is just up to the judge to grant it.

1. When it is time for overnights, Mom has every right to inspect Dad's house and make sure it is fit for the baby

Totally false. A judge would actually think this is an invasive request and think poorly of the person requesting it. My ex tried this with me, although our child was older. I had 3 different senior family law lawyers say she has no right to come into my house unless I say she can.

1. Mom mentioned that Dad is a avid pot smoker (19 year old doesn't surprise me) and lawyer responded with, when it comes to access if Mom feels Dad is not in the right mind frame she can and should deny access

There is some truth to this. If the ex drove a vehicle to pick up the child, and your cousin truly believes the ex is under the influence of alcohol or a narcotic, they may deny the parenting time. A parent is able to use their discretion when they believe that doing otherwise would put the child in immediate danger. But know that you would need to be fairly certain. If the ex calls the cops, and they show up and do a sobriety test on him and he passes, your cousin is going to look mighty bad.

1. Because Mom doesn't drive, Dad will be responsible for all transportation and transportation costs

Not always true, but regularly true.

[Berner_Faith]

I agree with you HammerDad, 30 minutes is not long enough, but I still feel like the broad statements made can really put ideas into people's heads, especially a vengeful ex.

I should have mentioned, Dad is not in school, dropped out a few years ago, was working but quit and moved back to the reserve. Dad did request access a couple times and Mom agreed but asked for something in writing outlining their agreement on access because Dad had threatened to take the child away and Mom "wouldn't see him a day before his 18th birthday". Dad refused to put anything in writing and would not let Mom know when he would return the child.

Neither Mom nor Dad drive, Mom is currently living with us and Dad is couch surfing between friends and family. I agree that if Dad showed up high as a kite Mom could and should deny access, but my point is, who decides whether he is in his right mind or not? Mom can't administer a sobriety test on site and can later say she felt he was high.

In all honesty, Mom didn't give a lot of information, she was nervous the whole time and gave very little information on the situation.

I will say, after the lawyer, we spoke to the mediator that was on site and she was much better, she actually contradicted some of the things the lawyer had said and Mom opened up to her more.

They have a session with the mediator booked in a couple weeks, however to our knowledge Dad never returned her call and it will most likely be cancelled. Unfortunately I think Dad has decided to move on with his life and leave his child behind. This is why birth control should be mandatory for teenagers...

[HammerDad]

Neither Mom nor Dad drive, Mom is currently living with us and Dad is couch surfing between friends and family. I agree that if Dad showed up high as a kite Mom could and should deny access, but my point is, who decides whether he is in his right mind or not? Mom can't administer a sobriety test on site and can later say she felt he was high.

She can call the police to do a safety check. That she wants to let the child go, but has reason to believe that the ex is impaired and driving. Thus doesn't want to put the child in harms way.

If the ex isn't the one who drove (ie. caught a lift from Grandma), then your cousin would likely have to send the child even if he appears impaired. Why? Because their is another adult reasonably capable of caring for the child there. It isn't ideal, and if your cousin didn't because the ex reeked of booze or weed a judge would not take her refusal as a real negative against her. But it is close call. My default would be that the ex was visibly impair as they reeked of booze/weed. Should the ex have any issue, say that you are willing to call the police to have them do a sobriety test. If he passes, the child can go. The police won't like being dragged into the middle of custody battle, but is about all you can do.

[Links17]

Seems pretty on the mark to me, the lawyer isn't there to fact check you in a 30 minute interview or ever in fact ... the mom will be the one testifying not the lawyer...

[Janibel]

They have a session with the mediator booked in a couple weeks, however to our knowledge Dad never returned her call and it will most likely be cancelled. Unfortunately I think Dad has decided to move on with his life and leave his child behind. This is why birth control should be mandatory for teenagers...

All things considered, perhaps it's for the best. I don't see how a teenage boy could handle the responsibility of providing for a child? Same goes for the young mother, she's going to need a lot of support in the coming years. She's very fortunate to have you helping her out.

YES! birth control should be mandatory and not only for teens...

[Links17]

She's very fortunate to have other taxpayers to pay for her crappy choices for the rest of her life.

Fixed: These 2 are going to be on welfare for the rest of their lives.... lets not get our hopes up.

[Berner_Faith]

Fixed: These 2 are going to be on welfare for the rest of their lives.... lets not get our hopes up.

Links... I am going to disagree here. I can't say for sure what he will be doing (or whether he is on it now) but I can say this young mother is determined to get back to work. She is working on getting her grade 12 (3 credits away) and is looking for a job starting in the summer. Hopefully once she gets her grade 12 she can then look into college.

For those who read a post of mine about the two young girls who were kept from their mother for years, this is one of the girls. She had a hard childhood, doesn't surprise me she is a young mother but she is determined to be better than her dead beat father who has been living on the system for over 10 years.

[LovingFather32]

I can see why there are so many people fighting false accusations, these lawyers make it so easy.

Many lawyers like to ramp things up. Give false hope.

Stirring the pot = increased litigation = more money in their pocket.

Motion for this, motion for that.
Motion for access to fight false accusations: chi ching.

For some lawyers the more drama they can stir up the happier they are. "Yes .. call the police, deny him access, search his home"...

Some lawyers are far from fire fighters and more like the arsonists starting the flames.

I've mentioned in many threads .. evidence is a great idea to have. His violent temper caught on camera , which can be seen to be unedited for instance. And still .. you need to prove the child is in immediate danger. If you think he's drunk or stoned you better be darn sure you're right. As somebody mentioned above if a sobriety test proves you wrong .. it's your credibility at stake.

Of course I'd do something about it also if I saw my ex drunk and high at an exchange. But I would make that call only if I was 100%. What if you smell beer but she's only had 1 with her lunch? Just have to be careful.

As for the lawyer's advice. Im not surprized in the least.

[stripes]

I'm wondering if the lawyer's advice was in part because of the ages of the parents involved. At 19, you're talking about someone who is effectively still an adolescent, not a cognitively functioning adult, and perhaps should be treated more like a child than an adult. Not condoning the lawyer's advice, but wondering if it would have played out differently if the parents were even a few years older and more mature.

[FightingForFamily]

Stripes, that applies to both people. The mom is basically still a kid herself.

1. The ex will have no choice but to pay CS and if he is not working the court will impute him an income equal to minimum wage

>> No one has a choice about a CS. It's always a slam dunk. The only question is how much is reasonable. As other posters echoed, if he's still a full-time student, the start of CS could be deferred a little while but that's about the only exception.



2. Due to the baby's age the ex will not get overnight access until the baby is older


>> Bullcrap. My new partner was effectively ordered to stop breast feeding so access could be started. She separated when the child was 6 months old and overnights started around the 1 year old mark.



3. Because the ex has not shown interest in the baby in a couple months, if he wants access it will be limited to a couple hours a week


>> Most studies would indicate short, frequent visits (3+ times per week, some cases every day) so the baby has good familiarity with both parents would be ideal.



4. Mom can and should request supervised access and parenting classes because Dad isn't involved


>> Pushing a larva out of your vagina doesn't make you a better parent than Dad. She probably needs parenting classes at least as badly as he does, and she also needs guidance and supervision (like you are providing, for example).



5. When it is time for overnights, Mom has every right to inspect Dad's house and make sure it is fit for the baby


>> She can ask but no one will grant her this. If there are serious concerns then CAS may inspect his house but this isn't a good route to take.



6. Mom mentioned that Dad is a avid pot smoker (19 year old doesn't surprise me) and lawyer responded with, when it comes to access if Mom feels Dad is not in the right mind frame she can and should deny access


>> Somewhat true, he will have to learn to limit his pot smoking to non-parenting time.



7. Because Mom doesn't drive, Dad will be responsible for all transportation and transportation costs


>> Sadly I am a victim of this in my own divorce. Mom took the family car and still somehow managed to win the right to make me do all the driving when I didn't even own a car.

[Tayken]

BF, as you know the name of the lawyer and experienced the matter first hand you can raise the matter to the attention of LOA through their ethics complaint hotline. It may just be a matter of better training for the lawyer in question and not anything too devious.

[OrleansLawyer]

Duty counsel lawyers are there to provide general advice. In some locations, they are not specialists in a particular field - so that lawyer may spend 36 hours per week dealing with insurance claims, then put in a half day at the courthouse where some people have family issues. In others, they may be local family practitioners.

Based on the facts:
- parents are teens
- one parent has had de facto sole custody, minimal involvement of other parent
- neither parent presents well (history of poor decisions, likely to end up on welfare, modest chance of CAS involvement in first 12 years or police involvement after 12 years)

The advice given by duty counsel is what could be reasonably expected from most cases with those facts.

#1 is good advice for mom (and what social services will tell her to seek anyways).

#2-6 are (likely as not) good for the child to try to protect against poor parenting, exposure to drugs or violence and help mom feel empowered/prevent her from being bullied into a settlement bad for the child.

#7 is what often happens. If dad doesn't want to travel, and neither does mom, then the child doesn't move - dad's loss. He wants something, therefore he takes action.

Are the above answers what will happen if the parties go through protracted litigation and have their claims/accusations brought to trial? Probably not. But that isn't where the case is likely to end up; mom will either be a self supporting single parent, or dad will make an effort and be a part of the child's life, and that is what they will agree to after spending the next 12-36 months working on an agreement or going to court.

not anything too devious.

Duty counsel has nothing to gain from their ad hoc advice.

[Berner_Faith]

Thanks everyone...

I guess I was just shocked at some of the advice. Reading posts here about the horrors people go through when legal aide is involved, it really struck me as odd that the lawyer was so certain on a lot of these points.

I agree they can only go on what is being told, but because I was sitting in that room, I can honestly say, Mom didn't give a lot of detail but anything that was said the lawyer seemed to jump on with a matter of fact answer.

I am hopeful that when she goes back to the mediator they will be able to help. A child does need his father and even though he is young, he shouldn't be stopped from being a father if he wants to be.

I knew the day she moved in with us, her relationship with him was over, just seeing the hostility between them and adding a baby to the mix, nothing good can come from it. Part of me feels sorry for him because he is missing out on some of the best times and is basically a stranger to his son. We will continue to provide what we can for them. She had a horrible childhood and has probably not known what stability is, until she moved here.

Stripes, that applies to both people. The mom is basically still a kid herself.

I agree with FFF... she had a ton to learn very early one, she really was basically on her own. She had a tough pregnancy, an emergency c-section and no help when she returned home. She was in a tail spin and certainly wasn't a good mother when she showed up here. One thing we told her is that our main concern is the baby, not her or him, but the baby. She could benefit from parenting classes as well, but doubtful she would go.

Either way, it is a tough situation and I truly feel for that little boy. He is happy and thriving, but his parents don't have a clue. I worry for the day she decides to move out. Certainly not something we will push, but we do worry. We provide as much advice and guidance as we can and make sure that little boy has everything he needs.

[Tayken]

Duty counsel has nothing to gain from their ad hoc advice.

They only stand to lose reputation if they give the advice in the presence of a justice as WorkingDad has demonstrated time and time again...