A previous installment, “Enemies in the House,” I began the story of Silas and Regina, parents of a child on the autism spectrum named Belisario (“Belly”). These characters are synthesized from real people with common traits and common stories.
Summary: Silas and Regina’s marriage broke up over Silas’ inability to accept Belly’s special needs. In the divorce, the parties agreed that Regina would get custody of Belly, while Silas would end up with the lion’s share of income and assets. Regina devoted herself to supporting Belly’s special needs full time, which included participating in and supporting various therapies and educational supports. As this left no time for employment outside the home, Regina was forced to liquidate her limited assets to support herself and Belly, who was not yet in school. By the time Belly started school, the money started to run out, and so, Regina sought child support in court. Silas responded by requesting full custody of Belisario, claiming that Belly had no special needs, and that Regina suffered from Munchausen Syndrome By Proxy (MSBP). In a brief hearing, the court was unable to decide who was right and ordered 50/50 custody. Silas then used his shared authority to cancel therapies and supports for Belly. Although Belly had an IEP (Individualized Education Program), Silas began to request that the school transition Belly off of services and mainstream him out of special education. School personnel eagerly aligned with Silas’ position.
With Silas and the school working against her, Regina knew she would need a team to help her, and for that, she would need money. Fund-raising started with personal loans and gifts from family and friends. When the funds came as loans, they were memorialized with official promissory notes at 5% interest, with the first payment due in 7 years and further payments amortized over the next ten years. Regina and her close circle understood that by the time the first payments were due, Belly would be in High School, and with the right supports, he would hopefully be autonomous enough to allow Regina to go back to work and start to pay her supporters back. In the mean time, the invested funds would be helping Belly’s cause, while actually earning competitive interest for Regina’s backers. No security or collateral was required. The folks funding Regina’s effort trusted Regina’s word and were personally interested in Belly and his success.
Among Regina’s supporters were many who had no money to give or lend, but who had plenty of energy. These folks unleashed their creativity to find money in all kinds of ways. A charitable organization was established for the cause, and fund-raisers from bake-sales to on-line drives (facebook, kickstarter, gofundme, snap-raise, amazonsmile, indiegogo, youcaring, crowdrise, etc.) were initiated. Regina secured additional gifts and loans from contacts made with her former place of employment. Raising the money was exhausting work, and it was very difficult for Regina to set aside her pride to gain the needed resources, but she remained determined and resolute. Someday, after she had helped Belly, she would be in a position to help others.
The result was a war-chest of modest size, but enough for a strong start. Regina began with Belly’s pediatrician, who had first recommended that Belly be evaluated for being on the autism spectrum. Based on an examination of Belly and Regina’s report, she referred Belly for assessment at the Autism Discovery Institute at Rady Children’s Hospital. Regina gave notice to Silas that she was taking Belly in for assessment, and he (as usual) tried to cancel the assessment, but due to the pediatrician referral, the assessment went forward over his objection.
The evaluation resulted in a recommendation for ABA (Applied Behavioral Analysis), which included in-home training of parents and direct support of Belly. Regina shared the report with Silas, but he refused to agree. Instead, he took Belly in himself and demanded re-assessment. He claimed that the prior results had been skewed, as he had not been given the opportunity to present his information (that Belly was always fine under his care). Silas also gave the evaluators the report from Regional Center, which had found that Belly had not qualified as being classically autistic, and which had resulted in the termination of Regional Center support. The re-evaluation was conducted, and the recommendation ended up being the same. At that point, Silas indicated that he would agree to ABA.
Regina found an ABA provider, but there was a delay in getting started due to scheduling issues. Dad never seemed able to schedule ABA on his time. A few sessions got off the ground at Mom’s house, but just a few weeks into the program, it became clear that Silas would never allow ABA workers into his home (as he claimed that he did not need them; Belly was perfectly fine under his care). At that point, the ABA provider determined that no progress could be made with Belly with services only being provided on alternate weeks, and with Silas resistant to the program. The ABA provider gave a 30-day notice of termination of services with a recommendation that the parents seek alternate ABA services. Silas took the position that the termination of services meant that Belly no longer needed ABA.
In the mean time, on the school front, Regina hired an educational consultant (commonly called an advocate), who began attending IEP meetings at the school. Despite the reports from Autism Discovery Institute, the school declined to do assessments of Belly (e.g. speech-language, visual-motor, fine/gross motor, psychosocial, etc.), claiming that no traits had been observed to support the need for such assessments (confirmed by Silas). The educational consultant indicated that she would like to do some observations of her own, and then give notice if Regina’s position as to assessments had changed. After the meeting, Silas sent the education consultant written notice that he (Silas) was firing the educational consultant. Silas claimed that since he had joint legal custody, Regina could not hire professionals without his approval.
It was at that point that Regina hired a new attorney in her family law case. That attorney confirmed for her that Silas was incorrect. Pursuant to Family Code Section 3083, “joint legal custody” does not confer “veto” power to either parent unless the court order specifically requires consent of both parents for a particular action (as may be found in Form FL-341(e)). In general, “joint legal custody” means that either parent may exercise “legal custody” during that parent’s parenting time, and without interference by the other parent. “Legal custody” is the authority to make non-emergency decisions regarding the health, education, and welfare of a child. As to emergency decisions, the parent who has the child always has the authority to make those decisions unless there be a specific court order to the contrary.
The truth is, even in the face of Regina’s legal right to hire anyone she liked, many professionals will refuse to work for a child whose parents disagree. The good news is that many educational professionals are very experienced with custody disputes, and they are not intimidated by uncooperative parents. They know that they work for the parent who hired them and on behalf of the best interests of the child.
With a letter from her attorney, Regina let the educational consultant know that she (Regina) wished her (the educational consultant) to stay on, and that she (Regina) had the legal right to engage the educational consultant, even over Silas’ objection. The educational consultant agreed. In response to Silas’ letter “firing” the educational consultant, the educational consultant politely explained that she had been hired by Regina, and only Regina could discharge her.
The educational consultant then conducted her own recess examination of Belly and observed that Belly was socially interested, but that his peers did not seem interested in him (the principal, who observed with her, stated that Belly had never had social difficulties before, and perhaps he was acting differently due to an awareness of being observed). The educational consultant saw no signs of awareness of observation: no look in the educational consultant’s direction, no sign of rehearsed conduct. In class, the educational consultant observed that Belly had difficulty staying on task and that he required repeated re-direction. Sometimes, Belly would get frustrated, which would lead to a tantrum, followed by a time-out. Again, the educational consultant was assured that this was very unusual behavior, and that Belly must be aware that he was being observed.
In the face of the educational consultant’s observations, the school still declined to do any assessments and did so by formal letter (prior written notice, or PWN). When the appropriate time had elapsed, the educational consultant gave notice that Regina would seek her own evaluations. A team of experts were contracted, including an educational psychologist, a speech/language expert, an optometry expert, and Belly’s part-time occupational therapist, all engaged in order to provide the requested assessments.
Silas immediately made an ex parte (emergency) request of the family court to give him sole custody of Belly, to suspend Regina’s parenting time, and to prevent any assessments. Silas claimed that Belly was fine, that all school personnel agreed, and that Regina was obsessed with proving that Belisario was “sick.” Silas accused Regina of constantly seeking new evaluations every time she was dissatisfied with a professional opinion that Belly did not have special needs (e.g. that of the school or Regional Center). Regina responded that no evaluation had ever come to the conclusion that Belly had no special needs (including the Regional Center report stating that Belly did not qualify as classically autistic), and the position of the school was part of an evolving IEP process. Furthermore, Regina had the absolute right to order an IEE (Independent Educational Evaluation), pursuant to Section 300.502 of Title 34 of the Code of Federal Regulations (“CFR”), under IDEA (20 USC §§1400 et seq.) and California Education Code §56329(b), as well as Family Code Section 3083. The court denied all of Silas’ requests at the ex parte hearing, but set the matter for further review at a hearing that would be held two months later. The parties were referred to Family Court Services (“FCS”) for “mediation.” “Mediation” or more properly, “Child Custody Recommending Counseling,” is a process by which parties, with the assistance of a counselor, attempt to reach an agreement, and failing that, the counselor makes a recommendation to the court. An FCS session was set on an urgent basis three weeks after the ex parte hearing.
In the mean time, the independent assessments were contracted.
Once the private assessments were ordered, the school changed its position and stated that it wished to conduct assessments of its own. The educational consultant pointed out to the school that such was not an available option. The school having refused the previously requested assessments, and now that the IEEs were underway, the school had lost the right to perform its own assessments. The school became further resistant, refusing to schedule requested at-school observations by the various IEE professionals.
There came a point when it was clear that the school would not follow the law, and that the only way forward was a due process procedure. The educational consultant recommended an education attorney, who advised that if the case was successful, it would the be district that would have to pay the fees.
Regina went into the FCS session with the counselor feeling good, since the last time she had done this, the counselor had recommended in her favor; however, this time, there was a different counselor. When the counselor heard that school personnel agreed with Silas, the counselor took Silas’ side. The counselor would not review any of the reports from the pediatrician, Rady’s, the ABA providers, or the OT. The counselor dismissed those reports stating that if those reports had not been persuasive to the school, it was not the counselor’s place to second-guess the school. Although a written report would not likely come out for a couple of weeks, Regina pretty much knew that FCS would be recommending against her this time.
Regina was right. When the written report came out, it recommended that Silas have sole legal and physical custody. The counselor’s impression was that the school and Silas correctly perceived Belisario to be a healthy happy little boy, and Regina was strongly invested in defining Belly as “sick” or “challenged.” Viewing Regina’s “agenda” as detrimental to Belly’s development and self-esteem, the counselor recommended limiting Regina’s parenting time to alternate weekends.
Regina’s custody attorney objected to the FCS report and gave notice of intent to adduce testimony from the pediatrician, the evaluator at Regional Center, the subsequent evaluators at Autism Discovery Institute, the ABA providers, the educational consultant, the education attorney, the occupational therapist, the private educational psychologist, the private speech/language expert, and the optometry expert. Regina’s attorney also gave notice of intent to cross-examine the FCS counselor. Regina’s attorney also made a request for attorney fees and costs based on Silas’ superior income and assets.
Silas’ attorney responded by giving notice that he would adduce the testimony of the school principal, the school psychologist, Belly’s case manager, Belly’s teacher, the school health technician (in lieu of a school nurse) as well as Belly’s soccer coach and summer camp counselor. Silas’ attorney also made a motion for a psychological evaluation of Regina for Munchausen Syndrome by Proxy.
The custody hearing had originally been set for 40 minutes, and it was clear that a hearing with this many witnesses and issues was more likely to take up to seven days. Regina’s attorney went into court ex parte to address the calendaring problem. The result was that they were referred to the presiding judge the following week to set a multi-day trial in front of a different judge who had more time on her calendar. The date previously set for the custody hearing remained on calendar to address the issues of fees, costs, and psychological evaluation (with the actual custody/visitation issues to be addressed at the later longer hearing).
A 7-day hearing was set six months out in front of a different judge.
At the 40-minute hearing on fees, costs and psychological evaluation, the court ruled as follows: Silas would need to pay $90,000 of Regina’s fees due to his superior economic situation, and while his request for psychological evaluation was denied, the parties would undergo a child custody evaluation with a psychologist pending the 7-day hearing. The child custody evaluator selected by the court was very experienced at child custody evaluation, but had no background with special needs children and no exposure to the IEP process at schools.
The psychological evaluation ran into immediate difficulties. Regina’s attorney transmitted to the psychologist all medical records, dental records, evaluations, school records, ABA records, and OT records as well as years of texts and emails between the parties showing the difficulties Regina had had with Silas in terms of scheduling supports and therapies for Belly. Printed out, the records filled 6 binders. In electronic format, the information represented a daunting parade of dense pages of data. Both parties gave their entire witness lists as collateral contacts for the psychologist to interview. Despite having months until the scheduled 7-day hearing, the psychologist was never able to get through it all. Bottom line: the psychologist was unable to complete a report ten days prior to the hearing as required by law. Nevertheless, Silas’ attorney added the psychologist to the witness list to at least discuss the psychologists observations of the parties, the child, and to discuss the collateral contacts that the psychologist had been able to call.
By the time of the hearing, the due process issue had been resolved at the school’s expense, Belly’s IEEs had been completed, and appropriate services were offered. Unfortunately, implementation of those services was grudging, and not particularly effective because of that.
At the custody hearing, Silas went first (as the moving party). His witnesses were mostly school personnel who still claimed that Belly was fine, needed no services, and that the due process claim had been wrongly decided. The FCS counselor simply repeated what she had heard from school personnel, and seemed not to understand the implication of the subsequent due process result. Regina’s witnesses testified to the contrary (including the Regional Center evaluator, who explained that just because Belly had not qualified as classically autistic, as required for Regional Center services, did not meant that Belly had not tested out as having several challenges). The child custody evaluator had little to contribute, admitting that she had little expertise and insufficient time to evaluate all the data; however, she did note that Belly felt enormous emotional pressure from the dispute between the parents. Regina’s educational consultant and education attorney testified as to the significance of the result of the due process proceeding, which had been decided adverse to school personnel.
The result of the hearing was a reversion to the prior parenting plan, with Regina having legal and physical custody, and Silas again having regular visitation. Due to the change in timeshare, child support increased, and Silas was ordered to pay 50% of all of Belly’s uncovered medical, dental, vision, and therapeutic bills. Silas was ordered to pay another $60,000 in attorney fees and costs. He did not willingly pay, but the fee orders were ultimately enforced (with interest) through liens against properties Silas flipped over the next few years. The funds were used to pay off past-due attorney fees, costs, and witness fees as well as folks who had lent Regina money earlier on.