Soc.. a couple of questions.

[Sherry1]

State:  Arizona

My husband filed for custody of his two boys who will turn 16 & 17 in December.  His ex told him under no circumstances would she ever let him have custody, so filing was his only choice.  BM married a man in March who has no kids and is ex-military.  He took over the household, became the "dad" and started running it like boot camp.  The boys have called numerous times over the past two weeks and need out badly, they are miserable.  Some of the "military" home run practices borders on child protective services intervention, and they have been isolated by not being allowed to leave the house or have any friends over for a long period of time, as well as sleeping on the floor in sleeping bags for two weeks, no beds.   She has moved the boys so they have to start a new school this year anyway.  DH has a daughter who moved out of the house when she turned 18, two months into her senior year because she couldn't take it in the military run style house anymore, and he scared her badly by trashing her bedroom when it didn't meet up to his specifications.

The petition that DH's lawyer filed for custody reversal specifically states that "Currently, the children are being subject to physical and emotional abuse from the Petitioner's husband and the Petitioner has failed to protect them from the abuse and related harm". (The original order states that the Petitioner is BM, DH is the respondent).  As a side note, both boys have lived with us at different times.  2 1/2 years for the youngest, 2 years for the oldest.  (BM lives 5 hours from us)

The town the kids live in is pretty small.  We ran an internet search and only came up with 3 lawyers that practiced family law in this town.  DH called one of the lawyers.  The lawyer asked DH what the names of the parties involved were.  DH told him what BM's and as well as her husband's name was.  

Everything came to a huge blowout last night with BM and DH on the phone (She was served 3 nights ago).  BM told DH that the lawyer that we hired is the same lawyer that represented her DH 3 years ago for his divorce to his first wife.  Additionally, when he was married to his first wife, an order of protection was issued on him by his first wife (found this through public records).  Also, the same judge that issued the protection order 3 years ago is the same judge that will be hearing this case if it goes to trial (small town!).

1.  Is this a conflict of interest for the lawyer to have taken on this case since he represented BM's DH through his first divorce?  

2.  If BM forces this to trial, what are the chances, in your opinion, the judge will order her to pay back DH's attorney fees?  

3.  If this goes to trial, what are the chances, in your opinion,  that the order of protection that was issued by his first wife be brought into evidence?  i.e., if he was violent with his first wife and her son, a pattern?

Thanks for your help.

[socrateaser]

>1.  Is this a conflict of interest for the lawyer to have
>taken on this case since he represented BM's DH through his
>first divorce?  

First, I need to ask you to please, in the future, observe Mandatory Forum Guideline, rev 1.5, section 10, or I may not be able to respond. As it happens your questions are sufficiently generic for me to answer without risking a violation of AZ law. Ok, with that said...

"AZ Ethics Rule 1.9.   Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Here, because your attorney represented the other parent's new husband in a matter which is not substantially related to the present litigation, there is no conflict of interest. However, if your attorney has confidential information about the new husband which becomes at issue in the present litigation, based on facts about this person's behavior towards the children, such that the husband is called as an adverse witness or joined as party to the current litigation, then there is a conflict of interest, because your attorney may operate on otherwise confidential information which he/she would not have known, but for the prior representation.

It's a very close call, especially in a small town with few alternatives for representation. If I were the attorney, I would probably raise the question directly to the judge to resolve it before getting too involved in the case, because I wouldn't want to be disqualified later.

This conflict can be waived by the adverse party, via a writing or orally in open court.

>
>2.  If BM forces this to trial, what are the chances, in your
>opinion, the judge will order her to pay back DH's attorney
>fees?

Based on your post, I see no bad faith by the other party (just a potentially bad choice in new husband), thus I think the chances are non existent, that your husband will recover any attorney fees (unless bad faith appears later in the case).

>3.  If this goes to trial, what are the chances, in your
>opinion,  that the order of protection that was issued by his
>first wife be brought into evidence?  i.e., if he was violent
>with his first wife and her son, a pattern?

If there was an actual finding on the record of that person's violent behavior, then that evidence would be relevant, because even though the new husband is not a party to the case, he is proximate in time, place and event to the custody issues and thus, such evidence is relevant to the children's best interests.

However, many protection orders are finalized without actually trying the issue of abuse on the merits, i.e., frequently the alleged abuser doesn't contest the allegations, or the allegations are only that the person claiming abuse is only afraid of the possibility of abuse, rather than the victim of actual abuse. In such circumstances, the court could rule the protective order substantially more prejudicial than probative.

I don't think you need to go in this direction. If the kids are genuinely afraid of the stepfather, then I would go back to court and ask for emergency temporary sole custody, pending an investigation. Apparently, your husband's attorney hasn't gone this route, so I'm guessing that he/she doesn't believe that the kids are actually in any peril.

Frankly, this isn't real positive for your custody action. The kids are not that young, and if they could state their opinions in a mature manner and those opinions were a clear demonstration of their fear of the stepfather, that would change the picture of the case dramatically in your favor. Obviously, so would some evidence of actual physical abuse.

But, the longer all of this stuff boils unresolved, the more likely that the stepfather will quiet his behavior temporarily to avoid losing custody and all that lovely child support money.

Then as soon as you lose your custody action, he will probably go right back to the person that he really is.

This isn't to say that there isn't a high probability that the kids are simply rebelling against the new parent, and that there's really nothing much going on that won't smooth out over time. This is also a pretty good possibiity. The broad point here is that there's no big smoking gun at the moment, which may make your case very difficult to win.

[Sherry1]

just wanted the general questions answered instead of going into all the other details as to what is going on in their household.

I also knew that I was tiptoing through your guideline #10.

Thanks for your time.

[Sherry1]

After BM received the petition, they "fixed" everything and covered up what they had done to the boys.  The boys said she consulted with an an attorney (one of the 2 others in town) and found out that unless the boys were on board with staying with her, she would lose them anyway due to their age.  She let the youngest boy, now 15, come with us.  We had deep discussions with the oldest boy, who thinks they might let up on him since this all came down.  Otherwise, he turns 18 in 16 months and moves in with his sister.  DH withdrew the petition and a joint legal custody document was entered with the boys with DH having physical custody of the youngest, and BM the oldest.

Again, thanks for your previous help.

[socrateaser]

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