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Susan Moss

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Lessons Learned From Charlie Sheen For Your Custody Trial

Posted: 03/09/11 02:07 PM ET

As a Manhattan divorce lawyer, I routinely counsel clients regarding what they should and should not do during a contested custody case. Here are some of the lessons learned from the many hours of Charlie Sheen interviews I have witnessed over the past week:

1. Call me old fashioned, but judges typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in "extracurricular activities" during a custody trial, at least find a highway motel. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behavior is appropriate in the home.

When determining child custody issues, the courts in all 50 states have accepted the "Best Interest of the Child" standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory "in loco parentis," which means that the court stands "in the place of the parent" when asked to determine a child custody matter. Accordingly, the court takes the place of the parents when determining what is best for the subject children.

In the Sheen case, the analysis is slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement. By signing this document, both parents essentially stated to the court that they believed the terms of the custody agreement to be in the best interest of the twins. Mueller has now asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen's recent strange and disturbing behavior), and because such a change would be in the best interest of the children. Because of the hours of interviews that Sheen has given, there is no shortage of proof that Sheen has new or exacerbated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the custody agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen's decision to expose the two-year-old twins to his two "goddesses" will be seen as a sufficient change of circumstances to cause the court to make a thorough analysis of what future custody arrangement is in the best interest of the children.

2. Porn star is not a qualification to be a nanny.

If you are wealthy and fighting a custody battle, sport the money and hire Mary Poppins. She would be a great witness at trial and everyone loves the accent.

Courts look at your parenting decisions as a whole. Even if you as a custody litigant have "deficiencies," if you surround yourself with a good team, which assures the safety of the children, you can win a favorable outcome. For example, much has been said about Mueller's substance issues. However, by having her mother take care of the children while she attends rehab, Mueller has neutralized the issue and the court granted her side full temporary custody of the children.

3. If you admit to taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem, it's like the pot calling the kettle "Charlie Sheen."

Calling Mueller out because she started a rehab program does not exactly strengthen your custody case when you claim to have cured yourself of any alleged substance abuse problems, and that you have one speed, which is "go!"

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem. Judges recognize that people are fallible. If a custody litigant goes on national television to proclaim that he is not fallible and in fact has tiger blood, that litigant has not helped his case.

4. If you have already shot your fiancé, threatened your second wife and been arrested on a violent felony charge, you probably shouldn't threaten to kill your current wife during a custody case.

Many states provide that if a custody litigant is violent or threatens violence against the other parent, that this factor must be considered when determining custody and the visitation arrangement. This is because courts recognize that a child's psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. Threats, even made in jest, affect the child -- and certainly will affect the ultimate custody decision. Also, if a parent threatens (or is violent against) the other parent, courts surmise that this parent may threaten (or become violent against) the child in the future.

5. If we have learned nothing else from Napoleon, you probably shouldn't fight a two-front war.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce lawyers aren't that hard up for work.

Really simple, if two women are making the similar claims against you, it is more believable then if one person was making these claims. Sheen may be able to question the credibility of Mueller because of the substance issues; however, if he has to question the credibility of both Mueller and Denise Richards, this task becomes much more difficult. The reality is that Sheen will now be in contested custody cases against both Mueller and Richards. Although he may have every expectation that he will be a "bi-winner," the reality is that the odds are stacked against him because of his recent actions and decisions.

So what should Sheen do now? The answer is clear. He needs to settle and do it quickly (especially since he will likely be filing against CBS for breach of contract soon). If his custody fight goes to court, there will be mental evaluations of Sheen that might find their way in front of a jury deciding the CBS civil suit. If experts find, even in a custody context, that Sheen is crazy, this may be credence to CBS' possible argument that Sheen was fired for cause and therefore is due no additional money. The reality is for Sheen to have a chance in any future CBS suit, he needs to make this one go away.