Toby Kleinman

• JD
• Lawyer at Adler & Kleinman

Where a judge, absent a jury has listened to the testimony, heard the evidence, determined the credibility of parties and witnesses, and made a determination in a child custody case, one may wonder if continuing on a case thereafter dealing with similar issues, opens the door for a reasonable person to question a judge’s ability to remain impartial...

There are times when unmarried partners are uncertain about paternity, a single or divorced mother wants or needs to seek child support, or a man seeks parenting time with a child he believes he fathered. It is under these circumstances that paternity of the child may need to be legally established. Where there is domestic violence there are numero...

Obtaining a domestic violence restraining order may require only the testimony of a single incident, but the history of the relationship is imperative and provides context.

When parents separate, absent contraindications, the roles of the parents should continue as much as possible. Why? For the stability of the children, and because the way the parents have allotted their respective roles—absent domestic violence—indicates that the status quo ante should be presumed to be in their child’s best interests.

Where the appointment of a GAL is on behalf of the court, rather than to represent what the child wants as a party to the action, the appointment creates a circumstance that may be unconstitutional and a violation of an individual party’s rights.

Attorneys must carefully scrutinize what a judge has said or done before making a motion for recusal, but one should not fear making such a motion where it is appropriate.

Determining when and whether to object to an argument, statement orquestion made by opposing counsel, or to object to an answer given by awitness is an important decision to be made at trial. Doing so calls forknowledge of the Rules of Evidence and the ability to react quickly andthink strategically. These assessments are particularly important ind...

As a policy matter, we must address and end the circumstances of parents who raise allegations of abuse of their child during the pendency of a divorce from being unjustly attacked as being the problem. To shield these parents from attack requires absolute adherence to child safety protocols before any custody actions are considered. In other words...

In cases involving domestic violence, while not inevitable, a trial is more likely and child protection may be at the heart of the trial. Accordingly, detailed preparation is critical, especially for victims where there are children in need of protection. Attorneys need to be prepared, and they must prepare their clients. Documentary evidence assis...

Opening statements at domestic violence hearings offer the ability for the use of language that a court will remember, often using a mantra that gets repeated during the testimony and at closing.

Attorneys should seek to have a good rapport with a judge except where it interferes with appropriate, zealous advocacy. It is better to have a judge’s respect for proper advocacy than to be thought of as “nice.”

There are times when clients change their attorney multiple times or the adversary attempts to use changes of attorney against the litigant in a negative or derogatory fashion. Why does this happen and what can be done?

The attorney/client relationship formally ends shortly after a matter is fully resolved by court order. However, where a family matter involves domestic violence, there are several things attorneys and their survivor clients should know. The attorney/client relationship formally ends shortly after a matter is fully resolved by court order, whether...

This comment with regard to Mercer’s article entitled, “Rejecting the Idea of Rejection as a Measure of Parental Alienation,” raises and explains the issue as to why the use of language is so important when deconstructing a nonscientific study that Mercer has done so well. This Commentary explains how the language put forth in unscientific articles...

When a child has disclosed abuse, the child needs immediate protection and the court is place to go, because unlike Child Protective Services, the court has the power to stop contact between a child and a parent. To succeed with an emergent appeal, however, one must understand the high standards to prevail.

A protective order cannot guarantee abuse will stop and the victim and children will be safe. Nonetheless, it is a critical step to take because it helps to legally document the abusive experience.

Whether a domestic violence victim is representing herself or being represented by an attorney, the goal is the same: Convince the court of her own veracity and be skeptical of the other side. How is that possible when a pejorative mental health label may have been pinned onto her? This article examines ways for an accuser to bolster credibility.

This article discusses the issue of domestic violence during the pendency of a legal matter.

This family law column discusses challenges that arise in cases with a pro se litigant. There are some things attorneys can do to make the process with a pro se litigant move more easily. They can request that a judge instruct a pro se litigant to be apprised of the court rules, rules of evidence, and the necessary elements to prove their particula...

Many attorneys are reluctant to ever consider allowing a child to testify in a custody matter. This column discusses various considerations that factor into that decision.

The legal obligation of an expert witness is to provide independent advice to the court by presenting impartial, unbiased opinions about matters within their field of expertise. This duty is owed singularly to the court and supersedes any duty to the attorney or litigants. This job of the attorney is to find the right expert for each case. One size...

Courts are known for their many rules and regulations. While there are times a family court judge may properly make exceptions to the rules, too many exceptions, or exceptions contrary to accepted science, may reduce transparency and accountability, may undermine predictability, and may not be in the interest of justice. What can attorneys do?

Whether you’re a veteran family law attorney or one who just passed the bar, you will have to deal with an angry client. Strike that. Many angry clients. That’s especially true in family law. The telltale signs are there: agitation, arms folded tight, and glaring looks. These physical signs are unmistakable. Your client is stressed and angry, and y...

If a domestic violence lawsuit necessitates that an expert be retained, the attorney and expert need to have a relationship built on trust. This is particularly important so they can each manage the other’s expectations.

In every hearing to determine domestic violence, a court is faced with the dilemma of whether to grant or deny protection. Each state uses a different standard of proof, but the procedures are similar. Presenting a good case may positively affect later child custody decisions and distribution of assets where there is a civil case for damages

When one stranger abuses another we focus on the trauma of abuse. When a father abuses a daughter or son we call it abuse as well as incest. We give such abuse a unique name because incest is the ultimate taboo, even where it occurs between consenting adults. From a societal perspective, it is qualitatively different. When a cousin commits exploita...

This Commentary addresses the issue of the ethics of mental health professionals recommending or doing what family courts and some others are calling “Reunification Therapy.” This is often being recommended and used across the country, and ordered by family courts, as if it has a scientific basis for successful therapy between an estranged parent a...

When domestic abuse and children are involved, divorce and custody can be the epitome of high-stakes conflict and frustration and all too frequently protective parents lose custody of their child to a named abuser. Domestic Abuse, Child Custody, and Visitation helps mental health professionals, attorneys, and lay readers navigate the judicial proce...

This comment reviews attorney and mental health duties to the court and their profession and discusses ways to have an impact on how information, known to be considered without scientific basis, “junk science” is put forth to courts and what can possibly be done to stop that.

This article examines the impact of the current role of evaluators in divorce and child custody cases where there are allegations of domestic violence and/or child abuse and what the courts permit as testimony by experts. The authors explore the courts’ permissive rules in family courts, and the influence evaluators have on the resulting decisions...

Social Work and the Courts is a collection of important and cutting-edge court decisions in the field of human services, now in its third edition. Pollack and Kleinman present an array of legal cases in everyday language, with clear explanation of the facts and issues, and in-depth examinations of the reasoning and implications of each decision. Sp...

The Association of Family and Conciliation Courts (AFCC) published a set of guidelines a few years ago that called for the creation of what appears to be a new type of psychotherapy called “Court-Involved Therapy” (CIT) to substitute for the traditional psychotherapy sought by litigants in family court, though this may not have been the original in...

It is important for judges to accurately convey what they intend when speaking to litigants involved in domestic violence. Language has idiosyncratic meaning to perpetrators and to victims. Therefore, it is imperative that judges know and understand the language of domestic violence and use it properly. This editorial comments on some of the pitfal...

This editorial tries, through the use of an open letter format, to raise some of the problematic issues faced by both practitioners and judges who deal with the issue of child custody. One of the flaws occurs when battered women see the court as their potential savior from victimization, while, in reality, the court, with its inadequate available r...

There are various tools that attorneys and their clients might use in custody and/or visitation disputes involving family violence. This column sets forth examples of pretrial motions, hearings, and other strategies. These are used to provide the court with detailed information about the abuse that has happened and the impact that the court's decis...

A child'S need for safety should trump any and all other considerations in family law. Child-service agencies cannot be expected to both promote reunification and child protection simultaneously. The author asserts that legislatures need to change the laws such that it is clear to the court that children come first and that safety is paramount. Alt...