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Child custody based upon BAD PARENTAL ASSESSMENT.

Portland, OR |

The parental assessment performed in the custody case for my son was filled with errors, fabricated testimony, omission of verifiable pertinent information, and was, by any reasonable standard clearly biased. The psychologist failed to act as a mandatory reporter. My lawyer did not challenge any of this. Does it make sense to try to reopen the case? Would I have any hope of success doing that if I represent myself?

Attorney Answers 2


You can only "reopen the case" in one of two ways:

1) appeal the judgment. You can only do this if you file a notice of appeal within 30 days of entry of the judgment, and only if you can demonstrate that the trial court made an error of law in deciding the outcome of your case. An "error of law" is an error in interpreting the law - NOT in interpreting the facts. So merely disagreeing with the judge's assessment of the credibility of testimony, for instance, won't cut it (unless you can prove to the appellate court's satisfaction that no reasonable factfinder could possibly have found, based on the record, what the trial court found - an incredibly hard standard to meet). You must have objected to the trial court's ruling at the time, in order to preserve the right to appeal (unless the mistake was "plain error" - again, a very high standard). The only way to see whether an appeal is worthwhile is to have an attorney review the trial transcript for errors. If you settled the case, or if it's been more than 30 days since the judgment, then appeal is impossible.

2) file a motion to modify custody. To do this successfully, you would have to show that a substantial change in circumstances has occurred since the judgment was entered. Merely disagreeing with the factual conclusions of a custody evaluation or other mental health assessment doesn't count. For legal purposes, any findings made by the court at that time are deemed to be true, however much you disagree with them. You'd have to be able to show that things have changed, and that the custody schedule you propose now is in the child's best interests. You can be sure that the child's other parent will try to use the same evidence against you, but if they do, you can try to introduce evidence of your own to show why these claims are flawed.

It's important to remember this: you can't take it for granted that anyone else will agree with your opinions about the quality of this evaluation. You're probably not an expert, and even if you are, your opinion is clearly going to be biased in a case about your own family. If you want to make these claims, you'll need to have the opinion of some reputable expert, either to evaluate the quality of the assessment already done, or to do a new one. Family law courts put a lot of stock in the opinions of child custody evaluators, child psychologists, and other mental health professionals. If you want to challenge a professional assessment, it helps to have another one.

I won't say there's NO chance if you represent yourself, but think of it like this: representing yourself in court is like performing surgery on yourself, with no medical training or tools. It's legal, but you're likely to hurt yourself. Or, look at it another way: if you didn't know the answer to this question, do you feel confident navigating the system on your own? If this is a priority for you, it's worth consulting with an attorney about.

Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin<br> Bodzin Donnelly Mockrin & Slavin, LLP<br> 2029 SE Jefferson Street, Suite 101, Milwaukie, OR 97222<br> <br> Telephone: 503-227-0965<br> Facsimile: 503-345-0926<br> Email:<br> Online:

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It would help to know how long ago the trial took place. It sounds like it may be fresh. You could look at appealing the decision made by the Court. But given that there was expert testimony against you, it will likely be a difficult appeal. I'm not saying it's not worth it to appeal....but appeals are very time-consuming and very costly. You should consult with an attorney to find out if an appeal is in your best interest.

Secondly, if it's been six months or so, you could look into filing to modify the court's order. To modify the parenting time plan, you need to show that there has been a change in circumstances related to custody and parenting time, and that it's in the child's best interest to change the current plan.

To do so, you'll probably want to hire your own expert to review the case.

Again, you should consult with an attorney to develop and execute a plan to win back something as important as time with your children. Examine this thoughtfully and invest in a consultation with a good family law attorney.

Best of luck to you.

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