Why Kids Need Two Homes

SPEAKER_01 0:00

People don't understand that they should be encouraged to love the other parent.

SPEAKER_00 0:04

You might be actively alienating, but later on that child will remember that you place them in that situation and can resent that.

SPEAKER_01 0:13

Who is going to understand that there are two homes now for the child?

SPEAKER_00 0:20

Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt, the managing attorney at Hunt Law Firm. And today I'm very excited to have an in-depth conversation with former judge Cindy Aguirre. She's a former practicing attorney in Fort Bend County. She then took the bench as the associate judge of the 505th District Court. And now she is back in private practice as an amicus attorney and as a certified mediator. She's worked with us on plenty of cases and gotten us resolutions. Judge Aguirre, thank you so much for joining me.

SPEAKER_01 0:58

No, I'm delighted to be here. Thank you for having me, Alex.

SPEAKER_00 1:00

And our topic today for this video is for anybody that has either a divorce or child custody case and is interested more about the different individuals that could potentially be helpful in your case. So an amicus attorney, a parenting facilitator, a parenting coordinator, or if you're maybe going to get a child custody evaluation, all of these individuals could, but won't necessarily be helpful to your child custody case. So we're going to talk a little bit about the circumstances where it might be helpful, what their role is and how it looks in practice.

Cindy Aguirre’s Path Into Family Law

SPEAKER_00 1:37

So tell us a little bit about your background before we jump in.

SPEAKER_01 1:47

So my thought was that I was going to be doing transactional work. But I share that with people because I think those of us that do work in the family law field have to have a certain um knack for it. It's sort of like a sixth sense. And so over the course of my 23 years of practice, the bulk of it ended up being, I mean, I also litigated, um, you know, I represented parents, but um, the more that uh I became involved in the amicus work and in representation of um children's best interests in that regard, then it grew to um, you know, assisting the court in CPS cases for lots of the same reasons. Um, and it just kind of evolved from that. And so um I think it it it you know kind of I I got to understand the role very well. And um and then it led up to uh Judge Perwin asking me to join him on the bench.

SPEAKER_00 3:19

I didn't know that you did transactional work before. What kind of work did you do?

SPEAKER_01 3:22

I actually never um that was what I aspired to do. I mean, I the bulk of my studies were to do international transaction type work. I thought I was going to be doing oil and gas, you know, um paper transactions or maybe the liaison, you know, between international companies. And I never did that. I ended up um just kind of falling. I I met uh John Grubb. I don't know if you remember him, but he um uh I met him and um he became a great mentor and he specialized in family law. And that's you know, my my start I owe to him.

SPEAKER_00 4:01

And um you you mentioned that you know family law isn't for everybody. I, you know, when we're looking for new attorneys, um folks will apply and they really don't have any background or on their resume, doesn't show any interest in family law, and that's always um kind of a red flag for me because I feel like if you you don't intentionally want to do this work that it's not gonna be for you because it is very like emotionally tolling and you need to um you need to want to do it. Um did you like what are some of the things that you have done? You've been doing this for a while in order to continue to be able to do this work? Like maybe like you don't work on Saturdays or you put down email or like what are ways that you're able to continue doing this work for so long without burning out that's a good question.

SPEAKER_01 4:56

I don't think I really grew into being able to create that space for me until much later in my practice, so much more recently now. Um probably after the big halt was when I when I uh shifted to doing, you know, in the judicial capacity, um, of course, then really my you know, my Saturdays were gone, my after hours were gone. Um I think for the litigants or the litigators, um you have to recognize that um you can't do everything. You have to recognize that sometimes time has a way of helping things sort themselves out. And so I think that you do have to set up boundaries, you know. Um I uh try to make time for my runs in the mornings, you know. I try to um, you know, more so now I'm able to say, okay, um, you know, maybe I'll um because the shift of my uh my practice has shifted, so I'll be mediating throughout the day. So I'll make some phone calls in the evenings. But once I'm home, I'm I'm home. You know, there's no no checking emails, no making phone calls.

SPEAKER_00 6:08

Um you have to set up those boundaries and just uh I think it's very healthy and you know uh litigants don't want a lawyer that's totally burned out and answering emails at all hours of the day. So I remember before you took the bench um when I first started practicing in Fort Bend County, that you were kind of like the go-to amicus attorney. Um and I think maybe partially for that reason, it seems like Judge Perwin said, This is who I need as my associate judge, somebody with a lot of uh really strong background and how to um, you know, work with kids, work with families, and help decide these child custody cases.

What An Amicus Attorney Really Does

SPEAKER_00 6:49

Um but you were an amicus attorney. Can you can you talk a little bit about what an amicus attorney is, what that role looks like in in Texas?

SPEAKER_01 6:57

So um I think there's a huge misunderstanding just out there for the people that don't do this for a living. Um people tend to think that an amicus attorney is there to sort of do what the child wants and um and is hired by a parent or both parents to sort of, you know, okay, find out what my kid wants and that's what we're doing. And that's really not at all um what the role is about. Um the role of the amicus attorney is is huge um for the court. And the client for the of the amicus attorney technically is the court. And the role is designed um to go out and and get sort of an in-person look, set eyes on what's going on, really going on within a family unit that is in the middle of this conflict, and to help the court decipher what's in the child's best interest. And so, you know, what does that look like? You know, you have to engage with the parents, you know, find out what's going on in the day-to-day life of the child, obviously speak to the child in the child's environment, right? In the home of both parents, kind of hang out with them. It's not interrogatory, you know, it's not like a forensic interview. Um, it's really, you know, um the tools are to develop a rapport with the child who can then in confidence really just kind of tell you what they want. Um, but and and although that's a factor, um experience helps figure out or determine whether that's really what the child needs at the time that the conflict is is is going to be presented to the court.

SPEAKER_00 8:40

Aaron Powell And so an amicus attorney is representing what the best interest of the child is. There is a role, an attorney ad lightum, not really used in general, like child custody cases, more reserved for uh child welfare CPS cases. Can you explain the difference between an amicus attorney and an attorney ad lightum's role?

SPEAKER_01 9:02

Aaron Ross Powell I think the most significant difference is the legal aspect of it. So the amicus attorney can on his or her own act in front of the court, can file motions, can um, you know, subpoena witnesses, um, can make legal argument. The adlidums are there in a lot of the same um investigatory role that the amicus attorney does. And so they do also, you know, develop a rapport with the family, with the child, you know, find out what needs are um you know, need to be met. But it is more of um, you know, the adlidum can can be a witness. Um it is more to share with the court this is what um the continuing needs of this child are within this context. Um, but there's no the legal aspect of it is not there for the guardian adlium. And it's it's a little bit, you know, I think that's the most significant um difference.

SPEAKER_00 10:03

Aaron Powell I've done quite a bit of child welfare work. And you know, when I have a client, depending on what age they are, I mean, sometimes they're early elementary school age, and I'll one of my first things is I'll explain what my role is to them, um, and I'll explain the difference between a an attorney ad lightum and in a CPS case, a guardian ad lightum, which essentially is similar to a role as an amicus attorney where they're representing the best interest of the child. But I'll say, if you tell me that you want to eat ice cream for dinner every night, as the attorney ad lightum, I have an obligation to go to the court and file the brief and say that my client wants to have ice cream every night for dinner. It doesn't mean you're going to get it, but that's my job is to advocate for you what you want. And as the guardian ad lightum or the amicus attorney, my job is to use my best judgment to determine whether that's in your best interest and then represent that to the court. Um it's a very simplified uh way of explaining it, but um you don't see a lot of attorneys ad lightum in general, like divorce cases, child custody cases. You're you're more likely to see an amicus attorney. And so as somebody who has worn the hat of an amicus attorney and also seen good lawyering on the bench, what makes a good amicus attorney, in your view?

SPEAKER_01 11:20

In the world of the high conflict situations that um that require the assistance of an amicus attorney, you have to have an amicus attorney that is going to have a voice. Uh the parties are going to spend money hiring a third attorney, or not hiring, but paying for a third attorney that's involved in every aspect of the case once that appointment is is signed off on. And um, if the amicus attorney is going to be helpful, there has to be time spent interviewing people, talking to, you know, um the people that matter to this child's life, um, following up on um what uh the parents are wanting um to see if there's any, you know, truth behind what their concerns are or if there's um, you know, the weight of whatever it is that they're thinking is important for their child, um, so that you can make all of that information available to the court. But you have to have a stance to even when I was on the bench, I everybody by the time a case gets to the court, the court is aware that they have gone through, the parties have gone through all of the requirements to mediate, to go to therapy, to I mean, all of these things have already taken place by the time you get before the bench. And so for an amicus attorney to get to that end and say, judge, everybody it is good, they're great, and we can all get along, I think is sometimes problematic because the court has to make a well-informed decision. And um if you we all understand we can't say this is what you should do, court, but you can have a voice to say, I have looked at all of these things. And what my investigation has leads me to believe is that these are the things that are in the child's best interests.

SPEAKER_00 13:20

And I think that's a misconception that a lot of people have that you hire an amicus attorney, and you alluded to this before, that they're gonna go in, they're gonna see what the kid wants, and then they're gonna communicate that to the court. But another misconception I think is that the amicus attorney is going to be standing before the court, and the judge is going to just say, Amicus attorney, what do you think I should do in this case? And that's not necessarily-I mean, sometimes there will be opportunities for that to happen. Sometimes an attorney will object to allowing the amicus to kind of testify like that. But what are the ways that you demonstrate what is in the child's best interest to the court? How do you get that message across if you can't just necessarily come out and say it?

SPEAKER_01 14:02

So presumably by the time that that question is asked, if it's ever asked by the court, you've already gone through some of the questioning. So definitely 100% it's engaging and having enough information to be able to draw out from whatever witness is testifying what you think makes an impact on the decision that is about to be made. So, you know, in other words, uh you have a parent who is um, you know, taking the the uh a child to school late, there's, you know, 40, 40 tardies. Um, but then you have the teacher on the stand. And if you know why those tardies are um taking place, because the teacher is aware that, well, I had that conversation with the parent, we are doing that because the child needs X, Y, and Z to happen um before the day gets started, you know, whether it's go to the nurse to get medication, or whether it's um, you know, extra time to go over a lesson before class, you know. So that's why there's a tardy every time. And I'm just giving an example.

SPEAKER_00 15:04

So you know what the right questions are to ask to get the right information in front of the Trevor Burrus, Jr.

SPEAKER_01 15:09

So it's drawing out those types of things that people that the litigants themselves or their attorneys may not be really focusing on. Um and and so by the time the judge says, well, give me your input, then you can't you have the basis to say, I've looked into these things, I've been in these homes, I've spoken to the child, and and you have a duty to say the 14-year-old wants to live with his father, Judge, where that is not everybody I think understands that that's what the child's desires are. But based on the investigations that I've done, or based on the information that I have reviewed in this case and the parties and the witnesses and the things that I have done, that's not what it what is in the child's best interest for these reasons. And that's okay to do. And it's almost just it's that's the importance of the role.

When A Child’s Preference Misleads

SPEAKER_00 16:07

Aaron Powell And I think that's another misconception that a lot of people have is you'll have a 12-year-old and a parent will come to me and say, Okay, my child's turning 12. He's indicated an interest to live with me. Now I want to go to court so that way you can change custody. But it's not that simple. Just because your child says that they want to live with you, that is typically persuasive on the court, but it's not the be-all and end all. The judge is still going to be the one that's making the decision, because this is in the end still a child. Um how how did you deal with those situations where you had a when you're on the bench that you had a child that wanted to live with one parent, but you were really torn and you didn't think that that would be in their best interest?

SPEAKER_01 16:51

How did I deal with it? Um I think it if I interviewed the child, um, I would um explain, of course, or try to explain, uh try to deflate the situation um by letting them know that nothing that they would say as a child is what is going to drive the court to make that decision, right? The decision rests solely on me and um to try to lift that burden off of their shoulders. Um but also um I think you have to give some leeway to what is really in a child's best interests. And a lot of times at 12, 13, 14, um, 15, 16, they don't, kids don't understand the longer impact, you know, the long-term impact of what a wish like that could be. And um, you know, I think it's more uh, you know, when you have parents living in different cities, for example, and you have a child that no, well, I really want to move to the other city. I've never lived things. Like, well, is that really what's in your best interests? And and it would happen, you know, I would have, I would meet with high school kids and I would say, I understand what you're telling me. Um, you know, but my job is to do what's best for you. And um, and so you do have to kind of break that down, I think, to the child as an amicus attorney, definitely, because if not, you uh lose their trust. Um and um, you know, so that's something that you have to sort sort of carry along the way. It's you know, I understand where you're coming from, but these are the reasons why that probably is not best for you. Um it's tough.

SPEAKER_00 18:26

Aaron Ross Powell When you were on the bench in the 505th, what facts made you determine whether an amicus attorney was a good choice? Whether it was the right call or the wrong call? What would you look at?

SPEAKER_01 18:39

I think um I mean definitely if I had a concern about um, you know, depending on what the complaint is, right, of the parent that is seeking um, you know, even if it's a call that I would make where I would say, you know, in this situation, nobody's asking for an ambush attorney, but I'm gonna go ahead and and and have someone um uh come in and and help me decipher this. Is you have really you have two great parents, or um, you know, the difference is is not huge between them. And you have a child who um is expressing an interest or somebody is, you know, one of the parents is saying, Well, this is what I think my child is going to say. Um, you know, well, is that really the case? You know, um, and so you know, the sense of comfort, the making sure that you're making the right decision, it's very powerful to, you know, position to be in to it's a big deal, right? I mean, you it's a lot of power in one person's hands to be able to make the right decision. Um, so I think that that is of concern. I I do I think your question is probably because uh maybe not every case is designed for an amicus attorney. I mean sometimes um you know, you have to look at it from the perspective of am I going to have the parties go through this huge expense, you know, um, when you have, you know, it depends on the age of the child. You know, if you have a child that is very little um that can't really express anything, um, is that going to um is that imp, you know, does that impact the decision? And I think all of those things are considered.

SPEAKER_00 20:25

And if you take off your your judge hat and you put on your attorney and your advocate hat, uh what cases would you want to see an amicus attorney appointed? So not from a judge's perspective, from an attorney's perspective, where would you say, I I I think I need an amicus because it's gonna help our case?

SPEAKER_01 20:44

Um I mean definitely when you have um a kid that's expressing a desire, you know, is the desire legitimate? Is it you know for the right reasons? Um I think uh you know, if you have um sometimes you may have a a stubborn parent on the other side who is seeking custody for the wrong reasons, you know, and and so then in order to give a little bit more strength to your case as a parent, you know, can you go in there and not only corroborate that my client is the one that should be in this in the primary position, but also help me explain to the other side that um, you know, that they're not gonna get custody in this case, and then maybe we can get the case settled. You know, because remember that's the other role. And I think that that's where the judges also say, okay, I think that I'm gonna put this extra person in there because the other role of the amicus attorney is to help the party settle the case.

SPEAKER_00 21:43

Aaron Powell Definitely. And and so that's one role of an amicus attorney. The other is, you know, as we talked about, is you're the court's eyes and ears, essentially. And especially when I'm in mediation, mediations that you've, you know, mediated. Um Is I explain to folks that if you take this to trial or uh say even a temporary orders hearing, because a lot of times the courts are so overburdened with cases, they'll say you get 45 minutes, especially in like Harris County. You might get 45 minutes aside. And the client will say, Well, I've got a lot of information to present, and they provide us with a lot of evidence, and I always appreciate that. But the judge is going to see this much of your life. And sometimes having an amicus attorney allows the court to have somebody who they trust go and be the court's eyes and ears and then kind of report back and present what they believe is in the child's best interest, which can be very helpful for a judge and can be very helpful for a litigant too, if you're worried that the court is only going to see a small snippet of what's really going on. What what are some of the biggest mistakes that you've seen parents make when an amicus is appointed on a case?

SPEAKER_01 22:57

I don't know that it's really mistakes. I think it's um it's hard for them, right? I mean, they don't really understand the role. Um, you know, and so I try to I, you know, I try to let them know, hey, I'm I'm not the one making any kind of a decision. Um, you know, it's I just need you to be you. I think it's trying to present as someone that they're not because they feel like it's they're being looked at as if they were presenting testimony in a case. Um I think that what bodes much better is when they're just real, right? Um you're not uh, you know, presenting a case to the amicus attorney. The amicus attorney is getting involved in your day-to-day, in your life as a real person, not as a witness that is testifying before a judge or jury. Right. Um so I think, you know, I I don't necessarily think it's a mistake. I think it's um the anxiety of the case drives that. Um and um and so I try to say, you know, hey, we're just talking, you know, I need you to, you know, give me a list of what your concerns are. Tell me if there are other people that you want me to talk to, um, you know, but no, rest assured that I'm gonna help you and I'm going to tell you. I think that that's the other thing that people that is important to people. If I um I'm going to help you understand sort of the process along the way, but I'm not the one making the decision. And so I just need you to be real, not present testimony.

SPEAKER_00 24:23

Aaron Ross Powell, I think that's excellent advice of just to be real because um amicus attorneys, especially somebody like yourself that has a lot of experience doing this, you've probably got a pretty well-tuned phony meter, and you can see when somebody is giving you a bunch of baloney versus giving you the real story, and they could see how you interact with your child and if it's real. And then the amicus attorney is going to go and speak with the child alone, too. And so the truth generally comes out. So it's better to just be real and to kind of show all the blemishes and warts on your case and just be upfront about it rather than trying to hide it all behind a curtain of, you know, sunshine.

SPEAKER_01 25:04

Right, right. And the list of things, uh, you know, or you know, well, my attorney told me to tell you. I mean, that kind of stuff. Uh yes, that's important, but I I try to let them know, okay, that great, I need the information because that's important. Um, but also just, you know, tell me why this is important to you. I mean, I think that that makes a difference to sort of to understand what is driving that tug and pull with the child.

SPEAKER_00 25:31

Yeah. That's great

What Judges Notice In Co-Parenting

SPEAKER_00 25:32

advice. So let's shift gears a bit to I'd like to see from your perspective as a judge on the bench to see what you actually look for in custody cases. Um you've presided over, I imagine, you know, over your time on the bench, hundreds of custody disputes. What do parents obsess over that may barely register for a judge? And what do they kind of overlook that is really important to a judge?

SPEAKER_01 26:00

Um I think that that kind of takes me back to what the expectation may be for the litigants as to what the court can actually resolve. It's the minutia of those things, like the you know, the the you know, having the the talks about you know, when you're there, when you're there as a judge making a decision about rights and duties, for example, it's it's not about you know um the being able to take the child to the doctor, you know, when the child is sick. It's it's so much bigger than that because it's not as microscopic as people think that it is. And so um, you know, I I look for, I would look for who is going to understand that there are two homes now for the child, that it's not my home is your is the only home, right? Um, when you're presenting testimony and your client says, Well, my son came home and you know, my daughter, you know, um, and it you can't express that really it's a child that is of both of us. It is not, it's not a possession, you know. I think that those small things when the clients are presenting testimony um and talking about what's important is really understanding that a child, there's no ifs, ands, or buts about it. I mean, unless it's a dire situation where you have somebody that's under supervised access, or the child is still going to go back and forth in between the two homes. And people don't understand that they should be encouraged to love the other parent, um, encouraged to understand that people's lives move on, not because you have to have an existentialist conversation with the child, but you know, maybe a spouse has remarried and or an ex-spouse has remarried. And um, and so that, you know, is the is a parent volatile towards, you know, the other, you know, the new, the new spouse, or um, you know, the things that a child can't control. Um I I think generally people underestimate what the judges are thinking in that in that regard, right? Judges are looking at the dynamic, um, you know, who is going to be the one that says, you know, it's okay if he left the child at the if he left the shirt at your house, we'll get it the next go round.

SPEAKER_00 28:32

So it sounds like the the parents that are going to be uh you said the word volatile towards the other side, and parents that are gonna be more likely to show that, you know, even on the little things, that they're gonna be a more willing co-parent, they're gonna be more easy-going, they're gonna try to encourage the other parent to have a relationship or the the child to have a relationship with the other parent. Right. Those are things that you would pick up on. Right.

SPEAKER_01 28:55

And I think people confuse that as the expectation being that you have to have a good relationship with the other parent, like a personal relationship with the other parent. Technically, your child doesn't even have to know that you guys don't communicate for uh you know you know very well or or that you know a horrible episode happened of an affair or you know, something that was really egregious towards the family. Kids don't have to be explained those things, and they are going to genuinely love both parents. And so when you present in a case where you're just so rough and um not understanding that your dispute, your personal dispute, is not anything that your child can control. And so for your child to be in the middle of that situation and you know, have to look to both of you or not be able to tell a parent, I love you, or not be able to, I mean, those things I think courts, you know, are are looking to see who is going to be understanding that it's difficult, encouraging, you know, of those situations, you know. Um, you know, it doesn't mean that you you give it all away, but you know, work that you can work with the other parent, um, you know, understand that things happen and that the child shouldn't be uh the pawn in all of this.

SPEAKER_00 30:11

Aaron Powell No, certainly. And and my experience has been from talking with kids that have been placed in that situation where one parent has really kind of stepped over the line and told them about another parent's affair or bad behavior, is that those kids, maybe not in that moment, but maybe when they get a little bit older and they look back on it, really resent being put in that situation because it it destroys their innocence and it pits them against the other parent. And they have no role in that relationship with the other parent. And um it can backfire. And it might not backfire in that moment. You might think that you're getting some sort of advantage over the other uh parent. You might be actively alienating, but later on that child will remember w that you place them in that situation and can resent that for some time to come. So um there's just so many reasons not to put your kids in the middle of disputes between parents. Right.

SPEAKER_01 31:11

And I think that that is a lot more transparent. Like it's don't just pick up on those things. And um I I don't I think that people focus on, you know, he lied, um, he, you know, she had an affair, um, you know, and and yes, those are important things, but when it comes to the relationship with the child, I I don't think that your judges are focusing on what drove you to the courthouse or the breakup of the family. Uh they're trying to um to figure out what um, you know, where kids are going to have emotional support, um, where they're gonna have consistency, stability, um, that is long-term, right? And and that is not going to be exclusive of this other half of their life.

Credibility Killers And Courtroom Reality

SPEAKER_00 32:02

Take us inside the courtroom when you're sitting on the bench and you have uh a party that will be before you, whether they're on the stand or they just enter the courtroom, what can destroy their credibility in your eyes in uh you know the first five minutes? And and then what could help really build them up in a short amount of time? Is there anything that you looked at and would immediately kind of build an impression upon?

SPEAKER_01 32:33

I think that when you have bad facts, pretending that the bad facts aren't there or minimizing the impact of the bad facts, I I never think that that's a good idea. I think it's I I I I'm more I would much more prefer that you just tell me what they are. We can deal with what the bad facts are. Um you know uh falling on your sword and and and just acknowledging a bad judgment call, I think is much more real because all of us make bad judgment calls at some point in our lives. And so for you know, for you to, you know, for there to be somebody on the stand that is, you know, uh pretending like the bad judgment call wasn't a bad call or that it was okay, you know, justifying it for some reason that is, you know, really does that make sense? Or I mean I think that that's where you lose credibility in in your presentation as somebody that is going to not make the similar, you know, same mistake again, or, you know, um, or not provide that type of stability. I think that that is um for me that was very important. It's just tell me what it is. We can deal with what it is. Um but you know, kind of dancing around it or pretending that it's not an issue, I think is a bigger problem.

SPEAKER_00 33:56

Aaron Powell And would you prefer that people would bring that up and say like direct examination and they would kind of explain it themselves rather than it you getting an impression of one of the parties and then they get cross-examined and all these bad facts come out. Would you rather that they just kind of tell you up front?

SPEAKER_01 34:14

Yeah. I think it it's just um it's just better overall. Um, because I think it's disappointing to a certain extent to then go, okay. So you were it tends to uh it sort of lends uh itself to to being like, okay, so you were trying to convince me that this had there was, you know, but you failed to tell me, you know, why that was the case or how it is that that came to be. And there's this all this whole other part of it. Um and so then you're just like, okay, you know, then then you're like, okay, did you try to fool me? Or, you know, was this um that I think is important for attorneys to know in general, because that's what we're looking for. You know, that's what the judges are looking for.

SPEAKER_00 35:00

That makes a lot of sense. The hardest cases where there's no abuse, there's no neglect, there's no uh drug abuse, there's no terrible facts. I imagine that those are the hardest cases for a judge to determine custody. How does a judge even begin to decide custody in a case like that?

SPEAKER_01 35:20

Aaron Powell Gosh, I think that um I mean you have to go back to the code. You know, remember that you know you can't bring yourself into the emotion of the situation. I think that that's probably where it's more important to look at historically what has gone on. I think that um you go back to those of us that have sort of the sixth sense about um, you know, the families and situations um of this sort. Um, you know, that's where I think an amicus attorney having uh an actual having actual input one way or another is important. Um it doesn't make it any easier. Um, but I do also think that when you're there in that judicial capacity, you you understand that you are there to help people get past this and get some closure. Um so I think when you bring all of that together, um, you just know. You just know.

SPEAKER_00 36:27

That's great. What's one thing you know, not everybody can afford to have an attorney represent them in court. What's one thing that you wish when you were on the bench that every self-represented litigant knew when they stepped into your courtroom in order to be successful? And I'll say it's it's hard representing yourself. Um I certainly don't recommend it. It's not just because I'm an attorney. I'm sure that you've seen it too, but uh it's a complicated system that we're it is.

SPEAKER_01 37:01

It is. And it's hard to kind of have the expectation of something that they should know. You know, family court, it is you see people in at their lowest, right? Um they come in having to admit or try to deny or try to forget or try to explain away huge mistakes sometimes. Um I think that the judges are there to help litigants and to just listen for a second and slowly explain to them that there are rules. Um, I think is a way to, you know, when you when there's a pro se litigant is saying, I understand what you mean, you know, I understand what you're asking, but there are rules that we have to follow. And um, you know, it be empathetic and be, you know, to show that you have, you know, you're not you're not there to kind of kick them at their lowest point, right? Is understanding that there are some issues. And so it's hard to say that there's an e for me, it's hard to express what they should know walking in. I think that people that are that come into a family courtroom want for to be heard. Um, and so that has to be navigated in a way, you know, that's judicially effective. That is, you know, I mean, all of these rules that have to be followed. And so I think that it's that's a hard question for me to answer because that expectation is difficult. I think that we're there, we're there, I'm no longer there. But when you are there, you have to listen. I mean, you're there to help your job is to help people through a very difficult time in their life. I mean, nobody, nobody's goes in there jumping up and down, I mean, rarely. I mean, maybe adoptions and you know, but um and so I think that that's difficult to manage. But I think um, you know, once the litigant, I think it, you know, even in the most um difficult of situations, um, once they feel that they are heard or that the things are explained to them, I think that things tend to go a little bit smoother, at least they did for me. Aaron Powell Yeah.

SPEAKER_00 39:03

No, that's excellent guidance.

Custody Evaluations Versus Amicus Work

SPEAKER_00 39:05

So a custody case has a number of other individuals uh other than an amicus attorney that might be helpful to the parties and to the court. A child custody evaluator, a parenting coordinator, parenting facilitator. Some of these folks might, you know, uh listeners might be unfamiliar with what they are and what they do. Um when does a judge reach for a child custody evaluator versus an amicus attorney being appointed? And maybe the best place to start is to kind of explain what a child custody evaluator does and then say, why would you appoint an evaluator as opposed to an amicus attorney?

SPEAKER_01 39:48

Um So I think that uh the biggest difference is, of course, is that you have a forensic psychologist component of you know there's an assessment there that an amicus attorney is not equipped to make. Um I do think that that is helpful in situations where you have parents that are so adamant about their positions and they're both looking at things maybe from a different eye, but are still in a very um high conflict situation.

SPEAKER_00 40:20

Um for folks that aren't familiar, an amicus attorney is an attorney. There's no requirement that you have any type of forensic or therapeutic background in any way. You've been namicusurity, I've been in amicus surty, I certainly am not a therapist or psychologist or anything like that. Um a child custody evaluator, there are specific requirements that they need to have a background in those uh sciences. Trevor Burrus Right.

SPEAKER_01 40:44

And those requirements go get an entirely different, in-depth look into each of the parties and their backgrounds and what is driving, so to speak, um, you know, where they are today or what they're seeking today, and and the decisions that they make with regards to a child. Um there's testing that is done, um, that is that also is evaluated by um by the the forensic psychologist, and those are all things that are uh they are different types of the assessment that can be made by an amicus attorney, clearly because of the expertise. But and so I think that in these high conflict cases where you have parents that are just very determined to um take the case to trial, which they're entitled to. And um but the other component of it for I think for the judges is the the amount of time that these evaluations take and the amount of um money that a lot of these evaluations cost. Um it's not cheap and sometimes can take two years to get a full report. And that's the other difference, right?

SPEAKER_00 42:01

Uh especially if somebody who's very thorough.

SPEAKER_01 42:04

Right. Um and they're very valuable, but they take a long time. And so I think that that also has to be factored into that decision making of whether one is warranted. The other stark difference um is that depending on the situation, sometimes you need a report. Sometimes you need a parent to look at an assessment and read about themselves, about the other parent, to get a better understanding as to what's really going on and how their child is being affected. Um an amicus attorney doesn't produce a report. Um, and so I think that that's a huge difference between the two roles that has to be weighed in, you know, it has to be factored in when you're making the decision as to having one or the other or both. You know, sometimes it's warranted to have both because you have the amicus attorney who can give you a more in-depth look as to many collateral, you know, collateral uh witnesses or you know, other things that are going on, disp different aspects of life or different types of situations that have gone on throughout the case. Um and uh you know, whereas the the report is a much uh you know, the report from an evaluator is so much more psychological in that regard.

SPEAKER_00 43:19

And scientifically backed based on their background and their expertise. And um, unlike an amicus attorney who is an attorney that is participating in the case as an attorney, they can call witnesses, they can ask questions during the trial. A child custody evaluator is a witness, or can be and usually is if you've paid all that money, a witness in uh the case that will produce that product, that will give an ultimate opinion on what should happen with custody, and then we'll be able to explain it in court. So two very different roles. Um I'd like to hear uh shifting gears to parenting facilitators in.

Parenting Coordinators And Facilitators Explained

SPEAKER_00 44:00

Coordinators, these are two roles that I would imagine that probably a lot of even like family law attorneys don't utilize very much and don't really know what they are. Did you have a lot of opportunity when you were on the bench to appoint parenting facilitators and coordinators?

SPEAKER_01 44:18

I did um I didn't use those roles um as frequently as I see them used now. That's interesting to me, but I've kind of realized that.

SPEAKER_00 44:33

I think um So you've seen an uptick in the number of people.

SPEAKER_01 44:36

I have I have more recently. Um but I also think that there's a huge misunderstanding as to what facilitators and coordinators are there to do. And I think that a lot of litigants think that the facilitators or coordinators become like the new um triers of fact. And that's not what they're there for. Um and the other difficulty is that as facilitators and coordinators, um, you know, when you set appointments or you make recommendations, they are recommendations that are meant to be followed, but you can't make them be followed either. Right. And so um I think that that's the difficulty, at least for me, in those roles. I think people expect that they are going to continue to have somebody like chime in and say, you're right, you're wrong, or and that's not the role of the facilitator or the coordinator. The facilitators and the coordinators are there, yes, to maybe um depending on what the specific requests are, right? Um maybe be the tiebreaker on a on a on a specific situation. Um they are there to explain, well, no, your order says this. And so this is the me, this is what that means. And so this is what should be done in regards to this particular issue. Um but it is also the co-parenting, and I mean, more so the co-parenting aspect of it, right? It's come together so that we can find some common ground and let's put some roles in place that help you guys navigate um these issues. And so um they and they can be regular meetings, they can be on an as needed basis, you know, um, but I think that where there's a disconnect is that the parties themselves may think that those roles are designed to basically take the place of a judge who is going to, you know, um, you know, come in with a gavel and say, you know, or you know, say you're in contempt, or, you know, those. And I think that that needs to be more clearly expressed to the litigants. Um uh, you know, I've run into that a lot.

SPEAKER_00 46:49

Well, they're not, yeah, they're parenting facilitators. They're supposed to be facilitating the co-parenting relationship, and they're they can do some level of coordination. Um what situations when you were on the bench did you find yourself utilizing a parenting facilitator or parenting coordinator? Where does it make sense?

SPEAKER_01 47:10

Um to me, it's more when you have um I think it's probably redundant to say it this way, but really with the lack of communication is such that both parents are doing good parenting, but they're doing parallel parenting. And so that sometimes becomes more difficult and so um for them without them, or more difficult for the child. And and so they may see, you know, um, this is happening at my house, but not at yours, you know. So I think in that regard, helping them understand, okay, so if I have a little window as to what's going on in the other, in the other um house, or um, then we can maybe some of our rules should be the same in both, you know, to get that understanding and to help that transition of the parents being able to work together again. Um, to me, that's probably the most beneficial use of you know, of um of a facilitator or

When Parallel Parenting Is Necessary

SPEAKER_01 48:09

a coordinator.

SPEAKER_00 48:09

Aaron Ross Powell As family law practitioners, we talk a lot about co-parenting, but you mentioned parallel parenting. Have you ever seen a situation where parallel parenting has worked or is warranted? And you say, yeah, maybe co-parenting isn't for y'all. Maybe you need to do parallel parenting. Aaron Powell Right.

SPEAKER_01 48:30

Yes, unfortunately so. But I do think, and and I say unfortunately, I think that ultimately in one particular situation where I said, I think definitely that parallel parenting is what needs to happen right now. It's because the conflict between the parents is so high that no conversation can take place without having to address some historical issue that led them to the splitting of the family at the point where where you know where they are, um, this, you know, with the high conflict. And when the parents as adults can't get past that, you have and time is the only thing that will help. And so I do think that the parallel parenting is helpful in that regard because it draws lines that you know need to be respected until enough time has passed, until enough healing has passed where the parents can begin to work together again. So I don't think it's a forever thing, because I also think that life tends to happen and that's inevitable. But I do think that you have to recognize in the world that we live in as litigants and you know, amicus attorneys and judges, and that sometimes it's warranted because the level of conflict between the parents is so high that unless you put some limits and rules in place and um they learn first to coexist and leave the past behind, um they they won't be able to co-parent.

SPEAKER_00 50:06

Aaron Powell No, that makes a

Picking The Right Professional Help

SPEAKER_00 50:07

lot of sense. So if somebody is in a high conflict case right now, how would they know whether it's the right call to ask for an amicus attorney or child custody evaluator or a parenting facilitator? And where might that be a strategic mistake for them?

SPEAKER_01 50:26

I think that the assessment has to come, you know, first identify really what the issues are and where you the assessment has to come from looking at where you are as far as the lifeline of a case. Um are we at the beginning of a case? Are we at the end of a case, in the middle of the case, are we going to judge or jury? Um, you know, what are the issues that are really keeping us from being able to come to an agreement that we think is best for our children? Um, you know, have we attended mediation and um gotten um input from you know yet another um attorney who is involved in the field who can say, okay, this is an issue that maybe would get resolved if you have, you know, why don't you know if you're concerned about safety and well-being, why don't you have somebody go out there and and you know um the fastest, cheapest way is with an amicus attorney. If you have somebody that, if there's a mental health component to a case, maybe, um, then maybe there should be an assessment from an evaluator who can forensically, you know, psychologically interview the parties and and do testing that is assessed. Um but I think it depends on sort of the lifeline of the case as well.

SPEAKER_00 51:37

Aaron Ross Powell I imagine, like especially when you have a child custody evaluator, somebody with that expertise, and there is a mental health issue that you really valued that opinion since you don't have that same background. When these individuals, an amicus attorney, an evaluator, when they make a recommendation, how much weight does it carry when you're on the bench?

SPEAKER_01 51:59

When you're on the bench, I think I mean I don't I I for me I would sort of you I would value the evidence and um or evaluate the evidence and uh look to me as okay if I'm if I'm gonna make the decision raw based on the evidence that I'm receiving, this is kind of my gut feeling. The experts then to me would help me either, okay, then that is the support that I have for the decision that I'm making. That's the right call. Um, and so I think I took my assessment of the evidence in, you know, in part, you know, I I would take a lot of notes, a lot of notes. And um I, you know, would really look at the demeanor. I mean, I really took in that real aspect of the case that was being tried. And so I I think that that's how I would I would listen to the testimony and evidence, of course, of the, you know, from these reports and experts, but I think I would first try to make an a raw assessment of if I were to make a decision based on what I'm hearing and what I'm looking into as far as what the parties, you know, these arguments that are being made and the facts as they're presented, and then does the the psychological aspect support it? Um, or should I look into it from another perspective because it doesn't support it? Why is that?

SPEAKER_00 53:31

Aaron Ross Powell Is there ever were there circumstances when you were on the bench where uh an expert, child custody evaluator or an amicus attorney made their recommendation clear and then you ultimately went in the other direction?

SPEAKER_01 53:47

I can't say that I remember that happening. Um You made me think I I can't say that I remember ever coming across a situation like that. Okay. I think that for me, probably it was more aligned.

SPEAKER_00 54:03

Um and I mean you're the one that's appointing the child custody evaluators, and so you obviously trust the recommendation of those professionals and you're recommending folks that you've seen their work before, and maybe even in private practice you've worked with them. And so obviously um you know, you you take their word a little bit more seriously because you do trust them, and that's why you appointed them to begin with.

SPEAKER_01 54:27

Trevor Burrus, Jr.: Sure. And I think that people have to realize that, right? I mean, your judges aren't gonna put people on cases that they just don't have. Now, that doesn't mean that they're not gonna look at other aspects of the case. Um, and sometimes it may be warranted. I don't remember that I ever had to do that. Um, I don't remember that I ever had to do that. But I think that um, you know, and of course, it you know, we're talking about custody cases that are other, there are other types of experts that you know that people you know bring in. But um I, you know, I don't remember really having to do that. And now that I'm on this side, I will tell you that if it, you know, you have when you're considering evidence and you're taking all of that in, um, it has to make sense. I mean, that there's there is a logical component to everything that is being presented. And um, but you have to hear it, right? I mean, you have to look at it. You have to look through everything that is being presented. And it all sort of tends to fit. Um, so I think when you have an expert like that, uh for me it was just a way of going, okay, then I I'm comfortable now, you know, you know, really looking into it. I I can see I'm comfortable now making this decision.

SPEAKER_00 55:42

That makes a lot of sense. So my final question for you is you have this really unique experience as uh an amicus attorney, as an attorney in private practice, and as a former judge. So my question is what's the one thing that you would want every parent who's coming into a family court to know before they step inside?

What Courts Can And Cannot Do

SPEAKER_01 56:08

One, just one thing?

SPEAKER_00 56:10

Um or more than one thing. What should they know?

SPEAKER_01 56:14

Um what should a parent know? Um, I I, you know, uh even with my mediations, I I I have to I start out with what their expectations are. You know, what is your expectation? Um I think that understanding that the the system is not equipped to put the life back together again. Um I think that the system's not equipped for that. The system is not equipped to micromanage every phone call, every hour, every possible circumstance. Um courts are there to solve the problem today with the facts as they are today. Um and specifically with children's issues, they are not final forever orders. And should circumstances change, which most of the time they do, um, inevitably. Um, you know, do you have to go back? Unfortunately, yes. But the courts can't act. You know, courts are they're reactive, they're not proactive. I think that people come in thinking that I just don't know if you know there's gonna be enough food there. I just don't know if um she's gonna take the child to the doctor. Um those are things that the court can't really operate on, and and people don't understand that. And and it's a difficult thing because it's a very logical rationale for a parent from the parent perspective. So it's not like it's you know, it's a crazy concern. It's a legitimate concern, but the court can't go in and micromanage and fix.

SPEAKER_00 58:12

I think some of the most difficult conversations I need to have with my clients is clients will come and they'll you know, they'll come to me because they want to seek justice. But justice is within a certain lens. It's within the lens of what's possible under the Texas Family Code and under the Texas court system. And if you're seeking this idealistic sense of justice with a capital J, justice in the eyes of God, that's not going to happen in the Texas family court system. And I imagine that that was probably frustrating for you at times that there would be things that maybe you would want to do and might be best for families, but under the law, you can't do that, and you are bound to follow the law as a judge.

SPEAKER_01 58:58

Right.

SPEAKER_00 58:59

Um and those are always very difficult conversations to have with clients and to kind of reshape the lens that they're looking at their case through, particularly in mediations when they're deciding whether to reach a resolution or not.

SPEAKER_01 59:11

I I get asked that a lot. I get asked, I I, Alex, I consider myself very, very lucky because I really like what I do. Um I but I wholeheartedly also feel like the roles that I've had in my care in my career or in my profession have been um the reason why I like them is because it allows me to help people get through very, very difficult times. And I get asked a lot, um, you know, gosh, you know, um now you're doing you're not on the bench anymore. And I, you know, I was very, very grateful to Judge Perwin for having given me that opportunity. Um it was a wonderful opportunity and I really enjoyed every aspect of it. Um but what I do now, um, what is unique about what I do now is that it gives me the opportunity to sit down to look at people and explain to them why judges can't sit there and hold your hand and and tell you, you know, I'm sorry that this happened to you, and or this is the reason why I'm making this decision. Um, you know, you're not gonna get that explanation. You're not, you can't, the judges can't do that. And explaining the flaws of the system can't come from the bench when you're there making those decisions. And you can do that when you're sitting with somebody in a mediation or as an amicus attorney and say, I understand what your concern is, but your courts can't fix that. And so how do we, you know, how do we come to a better resolution for your family so that we can move a move on from that?

SPEAKER_00 1:00:42

Aaron Powell Well, your perspective now as a mediator is so important because you've worn the judge hat, and so you can tell litigants before they step into the courtroom and go to a final trial what they should expect and what the judge is looking for and what you know a possible outcome of that process would look like. And um I think people really need to take it seriously when they consider that jump from a mediation and a possible mediated settlement agreement where they are controlling their own destiny and reaching the outcome versus going into a courtroom, which is a public setting, and there's going to be mudslinging, and you're going to have to, if you have kids, continue to co-parent with this person. And some of those things can't be, maybe they could be forgiven, but they can't be forgotten. There's going to be things that are said that the other side's going to remember forever and is going to kind of uh color your relationship with the other side. The other thing about mediation now is that some people need their quote-unquote day in court. They need to have a third party that's listening to their story and listening to how they were wronged. And sometimes a mediation can fulfill that role, and somebody who will listen, like you do, is really important. Um, you can give them that perspective and let them feel like they've had that day in court without going through the expense and the stress and whatnot of going to a final trial, not to mention the fact that it's family court. You never know what's going to happen. If you have a family lawyer that tells you with 100% certainty, I know that this is going to be the outcome of your case, that that's just not true. Because I can't tell my clients that even when I think it's a slam dunk, you don't know. You don't know what's going to come out. So it's a very neat role that you have now mediating cases and helping families that way.

SPEAKER_01 1:02:36

Well, and mediations also are, I mean, you know, they help you also you have the person there and you can ask them really why logically, why does that make sense? I mean, explain to me to see if I can help you or, you know, why do you think that's the way to resolve this and why wouldn't you consider this other option? And I think that people are appreciative of that. And then at the end of those very difficult, you know, kind of thought process uh processes, uh, by the time you're at the end of that, I think people are grateful. I think that they are, you know, they're like, you know, it was thank you for the time that that you've you know you've done this uh with me for. Yeah.

SPEAKER_00 1:03:13

Well, Judge, you've allowed us to take a lot of your time. I really appreciate that and for sharing your background and your expertise and your really unique perspective.

Finding Cindy And Closing Advice

SPEAKER_00 1:03:22

Um and it was a wonderful conversation. Where uh can folks find you either online or if they uh if they do need an amicus attorney in Fort Bend County or the Houston area, how can they find you?

SPEAKER_01 1:03:36

I don't know how everybody's finding me in that regard, but they sometimes they do, they seem to find me. Um I am usually in front of a computer, so I'm I'm pretty easily um phone. But no, Judge Perwin and I, when um we left the bench, we opened up our firm together. We have our firm in downtown Richmond, and so we're there, um Perwinagiri. Okay. Um and so we we have a website and um you know, people can log on and and um schedule the mediations there. Um I think just um, you know, whatever the word is out there about um, you know, I I didn't when we left the bench, I wasn't necessarily saying, hey, I'm out here doing amicus work again. I think that probably I had one attorney call me up and say, hey, are you doing it? And then uh I said, okay, I'll do this for you. Um but you know, lots of times people say, no, we don't want her because I'm very direct.

SPEAKER_00 1:04:30

And so sometimes that's why we do want you.

SPEAKER_01 1:04:34

But um But no, I mean I'm happy to help when I can. And I'm I'm easily found. I think that um, you know, we we do have our website out and um my email is simple as perwinagiri.com. Okay. And um and I'm at Cindy at Perwinagiri.com. Okay. Also hunt David down. He needs to get back on doing some amicus work.

SPEAKER_00 1:04:55

Sounds good. Well, thank you again so much. Um and if you're looking for a family lawyer in the greater Houston area, uh you can find me at hunt law firm FamilyLawyerKatie.com. You can also call us at eight three two three one five five four nine four. Thank you so much again to former judge Cindy Geary. Thank you all for having me. I'm Alex Hunt. We'll see you next time.