In this episode, Andrew and Barbara talk with family law attorney Marco Brown about common misconceptions in divorce and child custody.
Note: This podcast was originally hosted on Barbara La Pointe’s website, which has since gone offline. I’ve reposted the episodes here so people still have access to the materials.
Transcript
Andrew Folkler: Welcome, everyone, to another episode of Broken Families, where we host conversations on divorce, parental alienation, and high-conflict relationships. My name is Andrew Folkler.
Barbara La Pointe: And I’m Barbara La Pointe. Today, we are going to discuss child custody, and that is why we have brought on a very special guest speaker to help us really dive deep into this topic.
Barbara La Pointe: Marco Brown is a family law attorney who has been helping divorcing couples for over 10 years. Marco has a 90% focus on divorce and family law, and the remaining 10% on cases relating to guardianship. He also has experience in mediation and was the chief mediator for Utah Mediation Solutions for a number of years prior to becoming a family law attorney.
Barbara La Pointe: Marco’s passion lies in helping couples consciously uncouple, and to help them build a life that is better for themselves and their children. So without further ado, welcome, Marco, to the Broken Families podcast.
Marco Brown: Thank you very much. It’s good to be here. I appreciate it.
Barbara La Pointe: We’re really looking forward to a valuable and relevant conversation with you for our audience, and so happy you’re here.
Barbara La Pointe: I’d like to begin by asking you, Marco, what are some common misunderstandings of child custody that parents have when they start a divorce?
Marco Brown: There are many of them. So let me take a couple of them. I think on the legal side of things, so when people start either a divorce or a paternity case, so in Utah we call it a paternity case which is really a child custody case where the parents were not married, they can sometimes think that the first thing that’s filed with the court is an order of the court, right?
Marco Brown: That it governs behavior, and it does not govern behavior. So the first thing filed with the court, whether it’s a divorce complaint or a paternity petition, is just a wish list. So people come in and they say, “This is what I want to have happen. This is what I want to happen in my divorce. This is how I want child custody to go.
Marco Brown: This is how I want the debts and the assets to be allocated.” But that’s not an order of the court, that’s just a wish list, and then one party, one person gets to send that in to the court, and then the other person also gets to send their wish list in to the court, right? So I’ve had many, many times when people come in and they say, “Well, I filed this, so this is the way it’s gonna go,” and I’m like, “That’s not how this works at all.”
Marco Brown: That’s just your wish list. Then the other person gets to say their piece, and then we get to negotiate it out or we get to go to court and we get to fight about it. So that’s one misconception that people have with divorce and child custody, and why would they know any different, right?
Marco Brown: They don’t go through this. This is the one and only time they’ll ever go through this their entire lives. So it’s fine, but that is a misconception. And then I think the other misconception that happens, this tends to happen with women more than it does men because women are usually the ones that are in charge of the primary parent, right?
Marco Brown: They mostly do the things with the children, the kind of nitty-gritty. And this is the way it is in my marriage as well. So a lot of women will just assume, because they’re mom, that they get a certain amount of time with the children or they get to say what’s going to happen with child custody.
Marco Brown: So back in the ‘70s and the ‘80s, that was exactly how it went. Women almost always got the vast, vast majority of time with children no matter what. I was talking with a friend of mine who was a cop in Philadelphia back in the ‘70s and the ‘80s, and he actually got primary physical custody of his children because his wife had some very serious problems.
Marco Brown: But he told me even with those very serious problems, he told me that what he had to go through in Philly in the ‘70s and early ‘80s to get custody of his kids, and it was absolutely amazing what that man had to go through, and he’s a good, good guy. So very, very different nowadays.
Marco Brown: So that is no longer the presumption that just because you’re a female you do not get to just say what happens with the children. Now, I’m not saying that all women are like this. Most women, in fact, not like this, but that is a misconception that I see with a lot of mothers.
Barbara La Pointe: I find that just as women, we’re so conditioned to think that way. Even we might not even realize how deep our conditioning is, but I also see that conception as I walk through the world, as I operate in my coaching practice, and I had that misconception as well. So things have changed, and some people aren’t caught up to that change.
Barbara La Pointe: So that’s really interesting, Marco.
Marco Brown: And it makes sense because, again, most of the time women are the ones doing the kind of nitty-gritty with the kids. So I get where women are coming from on this, and I have about 50% of my clients are female and about 50% are male. So I totally get where they’re coming from.
Marco Brown: It’s just not that way anymore. So I have to tell them, “Okay, so this is not how this is gonna work. We’re going to have to really negotiate, and we’re gonna have to come up with evidence because it’s not just what you wanna have happen. We actually have to prove that you should have this much time with the children.”
Marco Brown: And that’s part of my job as a divorce attorney.
Barbara La Pointe: Fantastic. So just to invite you to talk a little bit more about important things with respect to custody for any gender, ‘cause it’s such a important topic, and sometimes it takes up a lot of the time in litigation, I would imagine, too.
Marco Brown: Yeah, it absolutely does.
Marco Brown: So the most important thing, when I sit down with somebody and they ask me, “What’s the most important factor in a judge deciding who gets the kids or what the time-sharing arrangement is gonna be?” I always tell them, “Look, two things, really. One, who the primary parent is. So who’s spent the most time with the children, who’s put them to bed, who does homework with them, who takes them to the dentist, who goes to parent-teacher conferences.
Marco Brown: These types of things, right? The day-to-day with the children. And then the second is what’s the status quo. Let’s take this example, a dad, and I’m not picking on dads here. I can reverse the sexes and the analysis is exactly the same. But let’s say the dad travels a ton, right?
Marco Brown: He’s gone for three weeks out of the month, and mom is a traditional stay-at-home mom with the children. So that’s the status quo, and then if they get divorced and dad says, “Well, I want the kids 50/50,” and you’re like, “Well, dude, you travel three weeks out of the month.
Marco Brown: That’s work, right? The court’s gonna say, everything in the children’s lives?” So those are the two most important things, the status quo and then who is the primary parent. There are lots and lots of other things that go into the analysis. Drug history, alcohol abuse, domestic violence.
Marco Brown: There are lots and lots and lots of factors. How connected a child is with a parent, so on and so forth. But the main two are the status quo and who the primary parent is.
Barbara La Pointe: Very valuable. Really helpful. And...
Andrew Folkler: Sounds like people are looking for that one, I guess the common word for it was always silver bullet.
Andrew Folkler: They’re always just looking for that one simple answer so that way they can be like, “Oh, here we are. Bang. And now I win.”
Marco Brown: Yeah, and I wish that existed, to be honest with you. We’re human beings. This is kinda what we do. This is why politics is really weird a lot of times.
Marco Brown: People will make an argument and they’re like, “Okay, well I win because I made that argument.” Well, no, there are lots of different arguments, right? So as human beings, we like to distill something down to one point that’s dispositive, I say dispositive or wins. But that’s just not how this works in the law.
Marco Brown: These cases, the work I do when I sit down with families and I sit down with people every day and talk about their particular situation, what got them here, what their kids are like, and really try to help them get through this process and do what’s right for their children, they’re extraordinarily fact-intensive and extraordinarily complicated situations and cases.
Marco Brown: And that’s why we have to go before judges and we have to tell them all of these things. And a lot of people will kind of decry family courts because I go before them and I can’t tell what’s gonna happen. They seem to make contradictory rulings from one case to another.
Marco Brown: And the reason for that is it’s so fact-intensive. Every family is different, that you just have to make determinations based on these facts as they exist right now in that family. That’s really, really difficult, and you do not get a silver bullet out of situations like that.
Barbara La Pointe: I think one of the reasons we love doing this podcast and hearing all these valuable points you just made is that so people can educate themselves, be more prepared before they jump into divorce. Even that term you just used, status quo, I remember the first time in my own divorce I heard the word status quo and I just fluffed it off. I said, “Yeah, I know, status quo, ugh.” I didn’t want to hear it, but that is a term that you hear frequently in family law, so I thought that was a really valuable offering. Just good to know so you’re more familiar with the languaging when you enter into a divorce or a legal process.
Barbara La Pointe: What else do you recommend for couples or for anyone, just to get a little more prepared before you file for divorce? ‘Cause I personally think having a little bit of an exit plan or a strategy before you retain a lawyer is advantageous. Do you agree with that?
Marco Brown: Yeah, I definitely do. And I need to apologize real quickly.
Marco Brown: If I use words that are lawyerly, I apologize. I try very, very hard not to do that. I spent years and years trying to hone my language as an attorney to not sound like an attorney when I talk to people who are not judges and not attorneys, right? So if I use status quo and nobody knows what that means, I apologize.
Marco Brown: I try to define it. Really, status quo is just what’s been happening before you actually go into divorce, right?
Marco Brown: There are some things. They’re called terms of art in the law that we have to use because, and they’re usually Latin terms a lot of times, because they have specific legal meanings, but I try very hard not to do that, so I apologize if I did it.
Marco Brown: As for what you should do in order to prepare for a divorce, the first thing I tell people when they ask me this question is get your finances in order. I cannot explain to you, I’ve met with over 10,000 people at this point in my career. I cannot explain to you how many people come in and I ask them, “How much money does your spouse make?”
Marco Brown: And they have no idea. They literally don’t know how much their spouse makes. A lot of people don’t actually know how much they make. They kinda know, but they’re not exactly sure. But a ton of people do not know how much their spouse makes. Even basic financial questions they don’t know the answers to.
Marco Brown: So when you go into an attorney, if you know your numbers, if you own a house, you know what you owe on your house and what the equity is in your house, you know you have 401s, like how much do you have in the 401s, how much do you make, how much does your spouse make, what did you pay in taxes last year, do you have any other property?
Marco Brown: If you can answer these types of questions, what are your debts, like how much do you have on the credit cards, how much do you owe on your cars, if you have that, then your discussion with your attorney when you sit down with them is gonna be really, really massively productive, okay?
Marco Brown: People fight about two things in divorce. They fight about kids and they fight about money. And if you know your numbers and you can have that productive conversation with your attorney during a consultation, you’re going to get a much better idea of the end of your situation right then in the beginning.
Marco Brown: So that’s the first piece of advice I give to people is have your numbers in order. And write them down so you know exactly what these things are and you can just go through with the attorney you’re meeting with and say, “Okay, this is the debt, these are the assets, these are the cars,” so on and so forth.
Marco Brown: So that’s the first. And then the second is figure out how much time you actually spend with your kids, right? Figure out that status quo, especially if you’re separated. So if you’re still living in the same place, it’s a little bit different, if you’re still living in the same house.
Marco Brown: But if you’ve been separated and then you’ve been just shuttling the kids back and forth with time sharing for the kids, then figure out how much time the kids have been with you since separation, and figure out how much time the kids have been with your spouse since separation. Because that is really the status quo question.
Marco Brown: And if you get a calendar, people come in with calendars saying, “Oh, the kids are with me on Wednesday, Thursday, Friday every week,” whatever that might be, that is gold for me as an attorney. I can really help people to lock down what child custody is going to look like if they’ve been separated for six months and they know exactly how much time they’ve been sharing during that period.
Barbara La Pointe: Those are two really empowering golden tips to be more productive with your attorney, and save yourself some money too so you can create some forward momentum. It’s not hard for me to believe that clients would come in and not know their finances or not know exact numbers just to...
Marco Brown: They have no clue most of the time. No clue.
Barbara La Pointe: Amazing. That was really great advice.
Andrew Folkler: So with that said, what are your thoughts on prenup agreements prior to a marriage?
Marco Brown: Yeah, this is a great question. So I’m gonna wear two hats during this question. One hat is gonna be Marco the guy, and then the other is gonna be Marco the attorney.
Marco Brown: So Marco the guy has been married for about 20 years. On the 15th it’ll be 20 years. I got married when I was 24, in college, I’m from Alaska, this girl’s from Texas. We meet here in Utah when we’re going to college and get married, and we kinda grew up together, right? And we got married when we were 24, so we kinda became adults together.
Marco Brown: I love my wife a ton, and I’m really glad we’re still together and we have three kids. If my wife were to die today, one, I probably wouldn’t get married again because I like marriage because I like my wife. But if I were to get remarried, I probably wouldn’t do a prenup on a personal level, because that’s just a decision I would make.
Marco Brown: I would either want to trust that woman that I’m marrying implicitly, or I’d rather just not get married. But that’s just me as a human being. That’s the decision I’ve made for myself, right? But as an attorney, look, a prenup really, really works if you have money. It’s very necessary if you have money.
Marco Brown: So if you got a million bucks, if you got a couple million dollars, something in excess of that and you wanna make sure that the other person is not marrying you for money, then get a prenup, and that’s totally fine. If you think the prenup is going to hinder the marriage going forward and put you at a disadvantage from day one, on an emotional or spiritual level with your new spouse, then think very, very seriously about not doing it.
Marco Brown: So I’m a little agnostic when it comes to prenups, legally. We don’t do a lot of them here in Utah, to be honest with you. I know in other states, ‘cause I can only speak specifically to Utah law, but in other states I know that the law is different and they do a lot more prenups because of the way the law is structured.
Marco Brown: So in California, I have a very good friend who’s a divorce attorney in LA County, and she does tons and tons of prenups because the divorce laws in California are just absolutely bonkers, like a lot of other things in California. But she does a ton of them, right? And it’s very, very common. The culture, it’s very common to do a prenup.
Marco Brown: The law is structured in such a way that a prenup makes a lot of sense. Here in Utah it’s much less so. So it really depends. But again, and I’m just repeating myself a little bit here, but if you have a million, 2 million, those types of assets and you wanna be sure about your marriage, that it’s on the up and up, yeah, go get a prenup.
Barbara La Pointe: Amazing.
Barbara La Pointe: So Marco, we’ve talked a little bit about custody. We’ve talked a little bit about preparing for divorce in advance, a prenup. I’d like to now ask you to talk and share with us your views as a lawyer on 50/50 custody. Does it happen? What are the pros and cons of 50/50 custody? Anything we should know about 50/50 custody from your perspective?
Marco Brown: Yeah, this is a hot topic in divorce law. So like I said, back in the ‘70s and ‘80s, 50/50 was not a thing. Okay? It did not happen. So mostly women got probably 90% of the time with the kids and the male, the dad would get 10% of the time. That was horribly unjust in a lot of situations, and thankfully we’ve rectified that.
Marco Brown: But the problem is the pendulum always swings way to the opposite side, right, before it comes back to where it actually makes sense. So in a lot of states, they’re getting to a mandatory 50/50 between the parents. And I’ve actually thought a lot about this because I represent a lot of men.
Marco Brown: I am a man. I represent a lot of men, I represent a lot of women. I’ve done this. I’ve helped thousands of families. And I think that 50/50 can work and often does work for kids, and is often what’s best for children. Okay? But in a lot of situations, it is absolutely not what’s best for kids. I mean, if you take the example I gave before, Dad’s gone for three weeks and Mom stays home with the kids all the time, and that’s just the way they structured their marriage, and then they get divorced and Dad still travels three weeks out of the year.
Marco Brown: But the court says, “We’ll do a 50/50,” because that’s just the presumption that we made is that everybody gets 50/50. So those kids are with a nanny for a week and then with Dad for a week instead of being with Mom for the time that Dad’s gone. That’s probably not in the kids’ best interest.
Marco Brown: I don’t think that that’s gonna be a great situation for them. So the pendulum in some states have swung to the side of, we have to do 50/50 for these children, and I don’t believe that that is the case. It’s much more complicated than that. I know a lot of people who will say, and I’ve had this conversation with many, many people, they’ll say, “Well, the research says that 50/50 is best for kids.”
Marco Brown: I’m like, “Okay, great. I read research all the time. Show me the research,” right? I was gonna be a clinical psychologist before I became a lawyer. So I’ve read hundreds and thousands of studies, so show me the research. So I read the research, and the research does not indicate what people say it indicates, for the most part.
Marco Brown: What I’ve seen in the research is that children tend to do better when you have a closer to 50/50 type of setup. Really, the way they define it in the research that I’ve read is about a 35% to one parent, about a 65% to the other parent. Kids tend to do a little bit better.
Marco Brown: But even the magnitude of how much better they do is not great, right? The magnitude’s probably like a .2, which is in social psychology, and in psychology and the social sciences in general, which isn’t that bad. But I’m talking statistics a little bit here.
Marco Brown: But it’s really not all that great. It doesn’t explain a ton of the variability and how well children do. So I hear that argument a lot, and I’m not really convinced of that. So it gets back to how are these particular children going to do with this type of time-sharing arrangement, right?
Marco Brown: Is it gonna be better at a 70/30 or a 60/40 or a 50/50? And that is a really long way of answering that question. But I’ve been asked this question a lot over the last year. I actually went and talked with some legislators in Utah because there was a law mandating 50/50 custody between the parents, and I went and I talked to them and I said, “This is a bad idea.
Marco Brown: The way this is written, the way this is done, this is a very, very bad idea.” And thankfully, we were able to get that changed and make it a little more sane. But again, I’m not saying that 50/50 is bad. We do 50/50 for a lot of guys and a lot of ladies, and it makes sense. Makes sense in a ton of cases.
Marco Brown: But in a lot of them, it absolutely does not, and we have to get down to the children and what’s actually gonna be best for them, and look at their attitudes, what’s been happening, and see whether or not it is in fact best for those kids.
Andrew Folkler: The impression I’m getting is I see this a lot in the parental alienation movements where they push for legislation for either default 50/50 or even mandatory 50/50 without realizing that they’re pushing a blanket solution on something that’s going to be case-by-case basis.
Andrew Folkler: Would that be a correct assumption?
Marco Brown: Yeah, I think that’s very much correct. So the legislation that was here in Utah, I can speak to that, it was 50/50. It was assumed to be 50/50 no matter what, for the most part, unless you could show by clear and convincing evidence.
Marco Brown: It’s a very, very high standard in civil law. It’s just under reasonable doubt in the criminal law, right? It’s very hard to show clear and convincing evidence. So unless you showed clear and convincing evidence, it was going to be 50/50, which is absolutely ridiculous and it would’ve been terrible for, what, tens of thousands of children here in Utah.
Marco Brown: So thankfully we were able to get that changed. But you’re right. People wanna say that, okay, it’s the standard. And what it is, as far as I can tell, talking to people about legislations like this and talking with people just in general, is that it’s this backlash to the ‘70s and ‘80s where guys, yes, absolutely got screwed out of tons of time with the kids, and that was bad for those children.
Marco Brown: So they kind of wanna swing that pendulum all the way to the other side, which is just as bad. We can’t be doing that sort of thing. So the way I think about this, from the research I’ve read and my experience as a divorce attorney, is you come up with a situation where, yes, a parent should have a significant amount of time, and we should assume that both parents have a significant amount of time with the kids, at least 30% of the time with the children.
Marco Brown: And then after that, we just make that kind of assumption in the beginning, but we can get off of that. Maybe there’s domestic violence in the house and drug abuse and all these things, and one parent really shouldn’t have time with the kids because the parent is an actual safety hazard to the children.
Marco Brown: Or there’s been alienation and we need to figure out what that alienation is and reverse the custody, right? But we can make those arguments, and we can make them specifically based on this family and this family’s particular facts. So that’s how I see it.
Barbara La Pointe: I often ponder that 50/50 custody is more challenging in a high-conflict scenario.
Marco Brown: Yeah, sorry. It can be, yeah.
Barbara La Pointe: I’ll take that as a yes.
Marco Brown: Sorry, I was anticipating the question instead of waiting for the question. Sorry. I apologize for that. But yeah, it certainly can be. So if you have very high conflict between the parents, right you’re still gonna do a 50/50, which can work, then the best way to do it is to live parallel lives with the kids, right? It’s parallel parenting, so you don’t really talk with each other, and we do this all the time. We structure our clients’ divorces in this way all the time. So if, for example, it’s a week on, week off schedule, so the kids are with one parent for a week and with the other parent for a week.
Marco Brown: And on Monday afternoon when the children are finished with school, that’s when the switch is made. So the other parent just comes to school and picks up the kids, right? Or the kids go to the parent’s house, whatever the case may be. And in that way, the parents never actually see each other, and they never really have to talk, which in those really high-conflict situations is going to be the best thing for the kids.
Marco Brown: Now, the best thing for the kids is for the parents to act like grownups and get over it and interact with each other and discuss the children and figure out their crap with each other and not bring that into the kids’ lives. But we’re human beings, and that’s not always the way it is.
Marco Brown: So if these people hate each other, and they have so much conflict that it really does bad things to the children, just live parallel lives and just don’t talk. And we can structure divorces to make that happen. We do that all the time.
Barbara La Pointe: Interesting. So no matter what unfolds, whether it’s parallel parenting, certain different ways to structure custody, once you get that agreement in place, sometimes parents violate visitation agreements, and so I was wondering if you had any counsel for that, if someone finds themselves in a position where the other parent is not being friendly or being a friendly parent or honoring those agreements in place.
Marco Brown: You cut out just a little bit. I think what you asked was what should you... And correct me if I’m wrong about this. What should you do when you have an agreement, like you have a divorce decree and then the other parent just doesn’t follow it? Is that what you’re asking?
Barbara La Pointe: Correct. Yes. Exactly.
Marco Brown: So there are a couple ways to deal with this. The most effective way I’ve found is to work with the other parent. Look, I know the other parent is not following the dictates of the divorce decree and you really wanna take it to him.
Marco Brown: But the most effective thing is to really work with other parent and try to persuade them to follow the divorce decree, right? And maybe this takes a while. Maybe you have to really work with them, and that’s a very, very difficult thing to do because you don’t wanna work with them anymore because you divorced them for a reason.
Marco Brown: But that’s what I found that’s most effective and has the most long-lasting positive effects for kids as well, is to work together and to fix that problem without having to go to court. But sometimes you gotta go to court, and that’s totally fine. So let’s say that this is an example, the problem is the other parent is not paying alimony and not paying child support.
Marco Brown: Something simple.
Marco Brown: So we’re gonna go to court on what’s called a motion for contempt. It’s actually called an order to show cause. And say, “Hey look, the contempt is that they haven’t paid child support and they haven’t paid alimony. So you need to pay the back amounts that you owe, and you need to pay my attorney’s fees because I shouldn’t even be here in court because you should have just paid me.”
Marco Brown: And then you get them in front of a judge, and the judge slaps them around a little bit, and then they hopefully pay the child support and the alimony. And hopefully that changes their behavior, right? Because there’s been a little bit of pain that’s associated with getting slapped around and then having to pay attorney’s fees.
Marco Brown: So when we go to court, that’s how we would deal with a situation like that. But again, if it’s a parenting problem, then really the first thing you wanna try is to talk to the other parent and persuade the other parent, “Hey look, let’s just follow the divorce decree. Let’s be good to each other.
Marco Brown: Let’s do this for our kids’ sake. This is gonna advantage us. Here’s how it’s gonna advantage us. Here’s the benefit to the kids.” Talk in that kind of manner with them and see if you can solve the problem that way.
Barbara La Pointe: I really like that. I really like that. Just to go that route first before creating conflict.
Marco Brown: Definitely. Don’t pay attorneys unless you have to pay attorneys.
Barbara La Pointe: That’s great.
Andrew Folkler: So Marco, recently in the parental alienation sphere, there was a video on Facebook that was getting shared around. And basically what it was was this father had driven the son to the mother’s place, and the mom was standing out at the window saying, “Son, come on.
Andrew Folkler: Let’s go inside. Let’s go and it’s time for you to spend time with me.” And now the father was recording this, and the son was saying, “No, I don’t want to. I don’t want to. I don’t want to.” And mom got emotional. She wasn’t really sure how to handle the situation. Her husband was standing to the side.
Andrew Folkler: And eventually, I believe the police were called and the police were informing that mother, the son has the right to make those decisions. I think he was in his teenage years at the time. I don’t know the full details of where they live or any of that kind of stuff, but I guess where this question is going towards is, at what point does the child have the ability to make those decisions?
Marco Brown: Yeah, that’s a great question. Great question. So the answer legally is 18, here in Utah, and I think it’s probably that way pretty much anywhere in the United States. But in Utah, it’s 18. So the kid gets to determine where to go when the child turns 18 and becomes an adult. Now, and I tell people this all the time when they come in and talk to me about this subject.
Marco Brown: When a child turns 16, that child is different than a 15-year-old or a 14-year-old, because we all remember when we were 16, right? If you’re anything like me, you were just a butthole, and you knew more than everybody else, and your parents were there to feed you and give you stuff, but you didn’t really want to hang around with them.
Marco Brown: I was a mean teenager. I’ve made amends, but I was not a great teenager. So teenagers kind of do what they want, right? They have a car and they have friends. They’re gaining independence. They really want to just make their own decisions. So there’s this idea here that you can tell a 16-year-old what to do and a 16-year-old where to go, but you can’t actually make them do it.
Marco Brown: Certainly, a judge can’t do it. A 16-year-old doesn’t care what a judge has to say about where the 16-year-old sleeps, right? So judges recognize this, and you should never, ever take advantage of that as a parent, ‘cause if you do, you’re just being a jerk, and you’re doing a real disservice to your teenager to teach them that they can alienate themselves from one parent, which is probably not gonna work out that well.
Marco Brown: But when push comes to shove, at that point, the 16-year-old is gonna decide where a 16-year-old wants to sleep and where the 16-year-old wants to be. And unless there is a serious safety concern, like a psychological, emotional, physical safety concern with one of the parents, that 16-year-old’s probably gonna be able to make that determination for himself or herself.
Barbara La Pointe: Interesting. Well, Marco, we’ve covered some really serious topics and covered some serious points. What are the strangest things that you’ve seen in family law? Or maybe you have a fun story to share. So I’ve often thought of you...
Marco Brown: Yeah, I always have to think through stories, ‘cause I obviously can’t break confidence with my clients. So when I share stories, I always share stories that have been changed enough that no one can actually recognize them. But I have seen the craziest stuff of my entire life being a divorce attorney.
Marco Brown: And what’s funny about it is that I don’t do drama in my own personal life. I’ve been married to the same woman, I have three kids. I’m kind of a boring guy, and I kind of structure my life in that way to be kind of boring on a lot of levels. But when I get to work, I need some excitement, and family law definitely provides that excitement, right?
Marco Brown: You get lots of stories and lots of crazy things happening, and that’s one of the things I really, really enjoy about family law. And in my firm, we try not to feed into that, right? We’re not crazy-makers, and there are a lot of attorneys who are crazy-makers because they think it’ll make them more money.
Marco Brown: I don’t like that, ‘cause it just hurts kids and it tends to hurt families and takes up a lot of time and cash. But even us, just trying to get in and get things negotiated for our clients and do what’s best for them and their kids, we see crazy, crazy things. I remember I had a situation, I actually made the judge laugh with this one.
Marco Brown: So the other side accused my client of beating himself up. It was a domestic violence situation, so the wife had beaten up the husband, and pretty badly, actually. So most women, a lot of men undergo domestic violence and it’s not something that’s talked about, unfortunately.
Marco Brown: But she beat him up bad, the black eyes, the whole bit. And usually women don’t do that, but in this case, that happened. But we get into court and the accusation was this guy beat himself up in order to put her in a frame, right? Which is absolutely ridiculous. So I got to go up in front of the court and say, “Hey, look, this is not Fight Club, and my client is not Edward Norton beating himself up in his boss’s office,” right? And there are probably five or six people in the gallery behind me that are laughing out loud, and the judge laughs out loud. And it went well for my client. I was able to make everyone laugh, and usually when I can make people laugh, they tend to agree with me.
Marco Brown: So that’s just one example of this, but there are too many examples to count of just crazy, crazy stuff that goes on in family law cases.
Barbara La Pointe: Wow. Thanks for sharing that. We’re pretty selective on the podcast about attorneys that we bring on to interview ‘cause I think I have a good gut feeling and sense about attorneys, and I always sense that you really protected and fought for your clients with integrity and passion, and I really appreciate that about you.
Marco Brown: We try. So I always tell people that, “Look, what we wanna do is we wanna get you in, we wanna negotiate in mediation, get things done, and get you on with your life,” right? That’s the cheapest way to do this, the quickest way to do this, and that’s the easiest way to get the outcome that you really desire and to take care of your kids.
Marco Brown: But then I tell people also, “Look, if we gotta put on boxing gloves and break somebody’s nose in court, that’s exactly what we’re gonna do,” because let me tell you, that’s a lot of fun, and we’re lawyers and it’s what we do. It’s not my first choice, but if I have to, I’m breaking somebody’s nose.
Barbara La Pointe: Well, it’s good to know that you can do that. I like that.
Marco Brown: You gotta carry the big stick. You don’t always use it, but you gotta carry it around.
Barbara La Pointe: Great. Well, Andrew, do you have any more questions that you’d like to pose?
Andrew Folkler: I think I got one alienation question for you, and it kind of ties into what we were talking to... That previous question I asked you earlier, when a parent is being alienated from their child, especially while visitation’s still ongoing, that parent can feel like they’re just constantly at odds with the child.
Andrew Folkler: The child’s gonna be acting out a lot of internalized trauma and a lot of frustration. And how can a parent better handle this from a legal perspective? Barbara and I give them tips and advice as far as the social elements of handling the child. But from a legal perspective, if their child is being brainwashed against them, what do they do?
Marco Brown: This is actually this might take me a little bit, and if I get lost when I’m answering this, just bring me back to where I need to be. But this is one of those hot topics both in psychology and in family law, and the intersection of those two things.
Marco Brown: So, alienation is not the term that’s used anymore. It’s still used, but it’s not the primary term that’s used. But alienation really is the idea that one parent actively alienates a child from the other parent, right? Is trying to take that child away emotionally and sometimes physically from that other parent, right?
Marco Brown: And there are some psychologists, I don’t agree with them, but there’s some psychologists that say that this is just not really a thing, this doesn’t really happen that often. And when I hear that sort of thing, I think, “Well, you only believe that because you’ve never been involved, directly involved in divorce,” because it happens literally all the time.
Marco Brown: So it happens actually in every divorce. The act of divorce is an act of alienation of the child from one parent. And it can be as simple as a parent doing it unconsciously. When you get divorced, you’re going to speak poorly about the other parent, no matter what you do, okay?
Marco Brown: It’s just going to happen. And you try very hard not to do that in front of your child, unless you’re a jerk, but you’re going to do it anyway, and that child’s gonna pick up on that, right? And that’s going to alienate that child to some degree against the other parent. So you just have to try to minimize the alienation that actually goes on.
Marco Brown: And that’s what I tell people, my clients to do, is, “Look, don’t talk about this stuff. I know it’s gonna happen, but try to be as good about it as possible.” ‘Cause you don’t wanna alienate the kid from the other parent, because that child sees himself or herself as 50% one parent and 50% the other parent, so you’re just hurting the kid.
Marco Brown: So that’s the baseline of alienation, that it happens all the time. But then there are those situations, and this is where it gets really sticky in psychology and in law, there’s situations in which the parent actively alienates the child instead of unconsciously alienating the child, and then really, really tries hard to completely and totally sever and break the relationship between that child and the other parent And in that situation, when that happens, that is probably the most difficult thing we have to deal with in divorce.
Marco Brown: All the other stuff we can deal with. You can deal with the emotions of the parents and that sort of thing. But when you have one parent who literally hates the other parent so much that they’re willing to effectively terminate emotionally the relationship between that child and the other parent, there is nothing more difficult to deal with in all of family law.
Marco Brown: The only good way that I have found to deal with it, and we’ve tried it every which way. You can do reunification therapy, you can do family therapy, you can do all these things, but if one parent just will not stop the alienation, the only thing you can do is to switch custody. And I’ve talked to psychologists about this, I’ve talked with other lawyers about this, and this is what I tell people when we actually get these types of cases to come in.
Marco Brown: And they’re fairly rare. They’re actually very rare. But when we have that type of case, then I just tell people, “All right, this is what we’re gonna do. We have a protocol for this. We’re gonna get these experts, we’re gonna go through this process. It’s gonna take a year and a half at least to do this, if not two years or more, and we’re gonna switch custody.
Marco Brown: And we’re gonna go to trial because that is what’s going to be required in your situation.” So people need to understand that if they have that situation again, which is exceedingly rare, they’re going to have to put together the money and put together the emotional fortitude to go through the entire process and just listen to whatever their attorney tells them, and pay for whichever expert their attorney tells them to pay for.
Marco Brown: ‘Cause that is a tough row to hoe and you have the hardest case in all of family law.
Barbara La Pointe: Oh, that’s fascinating.
Marco Brown: And some other people may totally disagree with me about this. I know other attorneys who disagree with me about it. They think that you can just go to reunification therapy and everything will be hunky-dory.
Marco Brown: I think that’s complete crap, because you go to reunification therapy, the kid’s with the reunification therapist and the other parent for an hour, and then they go back to the other parent, and that other parent is on them like white on rice for the week until they go back to reunification therapy.
Marco Brown: So it’s 200 hours of that alienated parent chirping in that kid’s ear and an hour of therapy.
Marco Brown: Who’s gonna win that? The parent’s gonna win that, right? The only way you can fix it is to switch the custody.
Barbara La Pointe: We recently had a consultant, an international consultant on, who works in parental alienation, and he talked about the unknown phenomenon of how reunification therapy mostly fails most of the time.
Barbara La Pointe: So I tend to agree with you on that point, Marco.
Marco Brown: And by most of the time, he probably didn’t give the actual number, but my number would be most of the time is 95-plus percent.
Marco Brown: It’s a scary statistic, yeah, it’s just not terribly effective.
Andrew Folkler: Considering probably is, too
Marco Brown: And maybe, look, I’m just making yeah, exactly. It’s expensive. It takes a long time. And this is just my experience, so I may be off by this, but my experience, it’s almost uniformly a waste of time.
Barbara La Pointe: This one question that’s percolating in my mind is do you have very emotional responses from your clients, or very emotional clients where they’re told something like what you just said, you’ve gotta go to trial, or there’s parental alienation occurring and we have to do this, or just anything.
Barbara La Pointe: It’s such an emotional time for clients. Do you have clients that can’t be a solid container for their emotions and their emotions interfere with your productive conversations?
Marco Brown: Yeah, absolutely. We have some of those. I try very hard to weed those people out, and not in a bad way.
Marco Brown: ‘Cause everybody has emotions and everybody who has those types of emotions needs somebody to help them. But I and my people are usually not the people to do that. So if somebody’s that kind of overly emotional bordering on irrational and they just can’t, they have such negative emotions that they really can’t get past that and listen to our counsel and do what we require of them, then we’re not doing them any favors by representing them, and I just try to figure that out and say, “Okay, here’s somebody else who’s gonna be able to help you better, right?
Marco Brown: And serve you better. So go talk to this person,” whoever that might be. But sometimes, yeah, we do have those individuals. And a lot of individuals will go through periods where they’re totally, completely rational and okay, and then they just break, right? And they’ll go through a week or a month where they’re not in a good place, and we just try to identify that and work with them through those times.
Marco Brown: But one of the ways that we’re effective at doing that is that, again, we’re not crazy-makers. We’re not stoking this fire, because I know a lot of attorneys, again, who will stoke this fire and stoke litigation as much as possible, and when you do that, that tends to break your clients, right?
Marco Brown: That actually causes them to emotionally break, and it’s your fault as the attorney, and that does nobody any good whatsoever. So we try very hard not to engage in that type of behavior.
Barbara La Pointe: I think that’s such a powerful point. That type of stoking clients, stoking the fire in files, as you say, great metaphor, will break a client over time, ‘cause it’s stressful not meant to go through that stress for long periods of time.
Marco Brown: We’re no. No, we’re not. And I tell people this, if I were to divorce my wife, I’d be an absolute emotional wreck, right? My entire world would’ve ended, right?
Marco Brown: And that’s very difficult to deal with, and I’d be an emotional wreck. And if I hired some jerk attorney who, again, stoked that flame, I’d fall even farther down that rabbit hole, and that’s not good. And so we don’t do it.
Barbara La Pointe: Well, Marco, we’re coming to the top of the hour, and these hours always fly by so quickly.
Barbara La Pointe: It’s been so fun to chat with you. We always give our guests one chance to say anything they want or anything that’s left unsaid, a pearl of wisdom, if you will, to the audience that are dealing with divorce, high-conflict personalities, parental alienation. The floor is yours.
Marco Brown: So this I think is probably the most important thing a divorce attorney can say to people.
Marco Brown: If you’re wondering whether or not you should get divorced, do everything you can to save your marriage. Spend the money. I tell people this. So our average divorce is between 6 and $8,000, okay? It’s not an exorbitant sum of money, but it’s a lot of money. So I tell people, “Look, if you’re unsure whether or not you wanna get divorced, take that 6 or $8,000 and spend it on your marriage, right?
Marco Brown: Spend it on therapy. Do whatever you need to do to make your marriage work.” Because I’ve read the studies, I’ve seen the stats. If you can make your marriage work, you’re very likely to live a better life, in a more healthy, happy, meaningful life if you stay together.
Marco Brown: Now, sometimes that cannot happen, and that’s okay. And this is the second part of this. So if that can’t happen and you need to get out, be proactive, then make the decision to get out and then act on it right then and there. So you’ve reached that breaking point, whatever that is, okay. Act on it.
Marco Brown: ‘Cause the worst thing you can do is to reach that breaking point and spend the next seven years wallowing in the fricking muck and the mire and hating your life and hating your kids and hating your spouse. And when you do that, when you’re not proactive but you’re reactive and you let things happen to you, you also tend to do very poorly in your divorce when it’s time to go get divorced.
Marco Brown: Because you’re just letting your spouse do whatever they want to you, just like you have for a long time. So again, if you can save your marriage, save your marriage. Don’t pay me, don’t pay an attorney. Spend the money to save your marriage. If that can’t happen, be proactive and get out.
Barbara La Pointe: That’s amazing advice for anyone listening, ‘cause I think people don’t realize often how proactive of a process it is. And I’m speaking from personal experience. It’s a very proactive process. So I love how you ended our conversation with that powerful point for anyone to remember.
Barbara La Pointe: Thank you for that.
Marco Brown: You’re welcome. And thank you so much for the conversation. It’s been fantastic.
Andrew Folkler: Absolutely, Marco. If listeners wanted to reach out to you, learn more about your practice, or even just learn more about you, what would be the best way for them to do so?
Marco Brown: You can go to my website.
Marco Brown: It’s www.utdivorceattorney.com. So we’re in Utah right now. We’re going to expand into Arizona probably, very likely by the end of the year, and then we’ll expand into other states after that, so I may actually have a different website for that aspect of things. But right now, it’s www.utdivorceattorney.com, or if you’re in Utah and we can help you with your case, you can call us.
Marco Brown: It’s 801-685-9999.
Andrew Folkler: It looks like that is all we have time for today. Once again, thank you for taking the time to be with us, and if you enjoyed this episode, make sure to subscribe to our channel either on YouTube or to our podcast through the various podcasting platforms.
Andrew Folkler: On to you, Barbara.
Barbara La Pointe: Yes, and I invite you to check out my complimentary e-book, Erased By a Narcissist: One Woman’s Journey Through a High Conflict Divorce, and you can find this as a free download at barbaralapointe.com/erasedbyanarcissist. Andrew?
Andrew Folkler: Don’t forget, if you wanna reach me, you can email me at startnow@andrewfolkler.com.
Andrew Folkler: Barbara, what would be the best way to reach out to you?
Barbara La Pointe: Barbara@barbaralapointe.com.
Andrew Folkler: As always, thank you for taking the time to be with us today at the Broken Families podcast, where we discuss and help you find solutions to divorce, parental alienation, and high-conflict relationships. Have a wonderful day, everyone.
Barbara La Pointe: Thanks, Marco. Nice to meet you.
Marco Brown: Thanks...
Andrew Folkler: All. That was awesome.