consider the statutory factors found in the seven fifty i five six six two and improperly granting the defendant custody of the minor children under the statute it factors for the court to consider i'm not going to belabor each factor as the record that seem to either be forgotten or simply not considered our friend to not try this case and as a result we have spent endless hours or another record again and again trying to make some sense of what happen but i don't think it's unlimited and i think in this case all the evidence was equally there would have been different terms here the evidence presented at trial demonstrated that the children's  interest would be served by custody in order to plain however the trial court defined differently and so i believe that the trial court's decision to ward the defendant custody was against the manifest weight of the evidence obviously the judgment decisions however i do acknowledge discretion is unlimited and or stand of waging an uphill battle here and it's a difficult argument to make in this specific case the trial was held on six three days spanning over four months the plaintiff was on the stand for over three different days and the majority of the judge's opinion however was focused on that last day i do not necessarily believe that the trial court was bias or prejudiced against a plaintiff just for some reason he the children went from being with mom eight to ten hours of their day to now see mom every other week and i don't see how that can be a continuance of the level of continuity and stability that him for being the one that had to prepare provide for the family but as a result of the fact that he was the one that worked she was home with me and at no time did he try to change that with some great concerns for their welfare or for the safety and i assume when they made the decision for her to stay home with their kids if they were married that was a joint decision was the testimony about the parent of us care or lack of care during the periods of the year that he was a boy or laid off or other  time there was nothing throughout the separation period throughout the marriage where he was any concern about it at no time during the marriage and doing the separation was the defendant ever charged with the duty of being the primary historical character that happens when the court enter its work and that was the first time he ever had been responsible for everything dealing with the children the trial court makes a statement and it's his order that the defendant had been the one to primarily administer medication that's not in the record the record says the children had breathing treatments he wasn't home to go to them so that was the plaintiff he physically could not have been the only one giving up because he wasn't home during the day at a minimum he would bring them over there one night a week to spend the night time he chose to stay at home and allowed her to go away routinely on sundays with the children and a lot of times that was only one day off the trial court to find that the plaintiff had the ability to parent the children that she left her children in that she was not unfit parent and i think in this case specifically who are dealing with two parents who are good parents they may not make the choices that you or i would make as a parent they may do things a little bit differently dealing with two perfectly good parents each with their own little faults each aren't perfect but they're doing the best they can at some point that the court should balance the stability in the continuity and given more consideration to the fact that she was the one it's as if he had two good parents and let me try out to see if maybe mr feiler the defendant is a better and i don't think there was any reason to do that and it was a mistake to change has to be from a good custodian to another one hoping maybe he'll be just a little bit there was an awful lot of emphasis put on the fact that players did choose to socialize after the kids went to that there was a specific testimony for going to bachelorette party that she waited to go until the children were put to that and i think it was an error for the judge to put so much emphasis on legit misconduct or actions of the defendant or plaintiff skewes knew that had absolutely no bearing on the the children cried all day the children crying in the morning the children were wetting the bed out of there was going to be something specific showing that by her actions of going out after the children that that they were impacted in some way and there was there was one statement from the defendant claiming that the daughter told him are you going to that was that the children were well grounded they were happy they love biosensors grandparents parents and the one child that was of school age was she's one of the top students and i don't think any any weight should have been placed on those actions when you look at the fact that it had no impact on the stability i mean there was no no i'm sorry there was no other testimony of actual site how we got on with revives that so that tardiness issue the only thing that addressed that was her testifying that she was keeping time there was no connection i don't think but the party on wednesday night one of the most important considerations i hope even this case that was just  which which i truly whatever fact finder concluded that that did not occur or if it occurred it would have been easy to corroborate with another witness even though that witness my favorite your point at least it would have been another that's i mean that's a pretty extraordinary if there as well as the if there are no calling in saying you really need to come and pick up the children because i feel like i'm going to harm myself and i don't think the kids are going to be safe with me one side says that happened to the other side says it and i think the judge ha testimony regarding the mental stability of the defendant are within the first couple days of testimony which just didn't seem to be part of the judge's sit and i understand  is one of determining whether there was an abuse of discretion by the trial court use of discretion has been defined many ways that the standards for determining it have been re cited by various my favorite because i think it's more clear i've never understood what manifest way the evidence that seem to mean whatever whatever the argue or thinks it should mean abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court is from a recent decision by this court to me that's understandable the trial judge go completely off the reservation if he did something that no reasonable person would do and in trying to decide that the rules are very clear there's a strong presumption that favors the trial court's decision great weight is to be given to the trial judge his ability to observe the parties and their behavior and their personalities no that comes through the record this judge had these people in front of him for six days we have twelve hundred pages of transcript it's impossible to condense that down into a short argument or even a brief he he got to know something that these and that is that something that can never be ignored by the appellate courts and testified to her being gone after the separation from her children none of them were when they were with him i understand she go out do whatever she wants when she's not when it's not a night she's a diet didn't have people evidence and the only way you can establish certain facts is through observations by people that this didn't happen over and over again and she never testified she thought she was under surveillance or thought she was being this is a case where i think we should be looking out for the best interests of the children and i think the trial judge to that this is not a case where you get a reward for being a nice person or a bad per punish for being a bad person it's over what's best for these kids and this trial judge for a very conscientious thorough opinion were he made multiple findings of fact that that are the basis of his decision i don't know that any i don't i maybe they hate each other i don't know but i think that didn't seem to have anything to do with the judge and this is a problem by the fact that you have surveillance of cases like this how else are we supposed to find out what the children are to be with her and she'll lax on those occasions to leave the children with their parents and be out till two in the morning and so forth how are you trying to decide which of these parents would be the best parent for the  you got one who wants to stay home with them and who's better with them when they were and the testimony was they wake up they do wake up in the night she testified that if they wake up in the night one parent is there and one parent isn't there but if you had a grandparent would be there and apparently to great fear here maybe on both sides have quite a bit contact kid well i think it is reasonable for a trial judge in a situation like this where we have one parent who sneaks out after her husband children are sleeping for him to testimony fifty times in a period of a couple of years comes home and you know two three i want to cation four in the morning if you're trying to decide which parent these kids are going to be better off with i think that the one that is out as opposed to the one who isn't out that would be one of the factors that a judge could properly consider i'm not saying that if somebody goes out three times a week or they should goes out with her girlfriends and has dinner or something like that that somehow that would disqualify her but if you've got somebody who repeatedly is out till very late at night two in the morning coming home from police or her you know has a some sort of an accident with a car the police are trying to find her she says i couldn't approach the car because i've had to way too much to drink i mean this is this is these are i think factors that bear on the personality of the person but the meter the character of the person that is a relevant issue but there are other things other than that of course in the in the brief in the argument i mean we don't hear anything about this lady leave the kid said in a car escalade that's running on a public street or in a public parking lot to do business now what how in the world could you be giving the proper amount of attention and consideration your children do that kind of stuff that some of the that was one of the things the judge commented about my client came upon her one time when she was in it the kids were sitting in this car in the parking lot of a convenience store doors unlocked engine running she's inside during her visit we had two witnesses that were independent witnesses who didn't were not members of the family who observed this kind of behavior and and were concerned enough for the children that they just kept watching and while he said it went on for another minute or so i was going to call the police i was concerned about this this december the child severe diaper rash and that's the only way to college and i don't know that the courts have that sense of these photographs or the testimony was that the my client had had a child for five days before this happened the complaint by counsel is well he didn't call or take the child with doctor this was discovered about somewhere less than thirty minutes before custody had to be returned to the mother all of bath was being given some time after normal business hours so they got the child harassed he took the child out of the mother and said you better use take a look at this she's got pretty bad maybe she ought to see a doctor the mother did take her to a doctor the judge found that was the case but they're still arguing in their brief ocean took her to a doctor the next day in that period even though the mother testif terms of the grandparents the parties stipulated that the relationship of the grandparents in the fact circumstances of this case was very important because each party said these are the people we're going to use to give care of the children were not available and when you that really means that several hours every day that grandparents are going to be involved in giving care care that was given by her parents the court found specifically to be kind of a concern in terms of the actual safety of the children the evidence was that the judge found it to be a fact they let the kids play in the street in the front yard unfenced front yard half a block from a four lane state highway without adult supervision a court found that's that was the case that's what's happen the the evidence was a one point the child one of the children got away from the crash and had to be you dispute over how long she was gone in terms of this late night outings and what effect this has there was evidence that on two occasions while the parties were still together the little girl then three years old was outside the house running around the mother was asleep she took with the evidence as my client said it's hard for me to take care of the children when i've been out at night one occasionally came home one of the because we're locked in a bedroom while the mother's asleep so when you start telling me that it's going to out til two in the morning  and doing a lot of drinking has no effect on your ability to care for the children the next day i suggest there's plenty of evidence that that was the case here her brother may be a wonderfully i don't know i don't know but after we took the deposition of mother the grandmother yes mother was so enraged the cheap stuff on a car chase after my client and his parents were she for accident we put them either on the witness stand and or they put them under a witness stand and i said what happened how close did you get well i don't know i was just had upset i wanted to talk to him to put  going to talk to him by chasing him down by endangering the children well i don't know how close i was after that testimony we asked leeann are you still going to use your mother for this take care who did this testimony  well ok you know we didn't force this on her and their position is we're going to use this day care provider even though she has endangered children on  it's not even serious enough for us to talk to work now the judge put weight on that and weighed on the fact that while the children are being cared for by her parents that they were not closely supervised i think this one but the judge five year old kid she can't control how she gets to school this is completely on the other we went through with all of her parents and said are is leanna the one that took her to school yes except for one time the father was light but other times  late when we took so this is all on him after she gets this letter that she's tired the four more times any one of us who got a letter like that from the school i would hope when there would never be a problem again we had a witness who said after that letter was said he saw her hole up to the school after all the other kids have done it but the child out of the car and just walked up to the school by herself and then with the mother pulling off even though it was it was very clear from the evidence of the teacher and everybody else if you're late you're tyree you know walk the child in school don't just dump her and take up so this leaving taught it's not good for the children to be introduced to third parties but you're dating when you're separated till the kids have a chance to get used to it the evidence was my client had a girlfriend but he didn't do that he didn't have his girlfriend around around the children this is a byler said but if she told her husband i'm going to have the children around my ploy friend mr silva that the kids asking are we going to have  new daddy are these going to be our new sisters i mean if you do sing you know for whatever purposes she had putting the kids in a situation where there is even more you know confusion and and  contrary to what they're told me you know make them go to these classes and then they deliberately violate what they're told those are factors and the judge just took that recount as one of the one of the things that he thought was important  on the other hand you know my client there's not a lot to be said about you know good behavior doesn't generate a lot of a lot of comment her mother and her chief supporter said she'd been around when that when donald was caring for the children she had open like no criticism those were her words the handle criticism what i saw her sister said when i saw donnie with him he was a loving caring person she went to work out of it she  them on those evenings for a couple hours after he'd work while she went to to her work out she one point went to texas for three or four days left three days i think it left the kids with him there was absolutely no problem we had pete we had witnesses testify they see him care for the child and one of them said he's a great dad they all had nothing but good to say about the care that he gave the child they want to portray him as somebody who charlie had nothing to do with these children you agree that she was reimers i think of with a broad definition of that yes but one of the things we know we're not going to have is any stay at home parent after this divorce all of them are going to be working all of them or in school there isn't going to be any beaver cleaver smother situation what i thought that would be optimal if there if everybody steak either and we could have time nuclear family and so forth but she's not going to be home with these kids ever again no matter what we do here and he's going to be working till that was the testimony that was what the judge was presented with so what the judge had decided was going forward given all the problems he heard about her and her family and nothing but favorable about god what's the best thing for these kids going forward and thank you know what's the basis of second guessing that saying well i can tell i mean i certainly wouldn't play what i assume very few people would say i can tell by looking at by reading a record which parent would be best you know it was a jury is the greatest lie detector test that out there well a judge has been listening to witnesses for fifteen or eighteen years already pretty good at evaluating witnesses also and certainly that's the case here and i think this judge just suggest that he forgot what happened early in the trial is ludicrous i mean this van susteren like like he's a zone corporate or it's it's ridiculous to say that he forgot what she said early in the case and only decided based upon the negative things that came out later if you read their brief and only their brief and their statement of facts they absolutely ignored everything that favored the defense they absolutely ignored everything that was the paces of the findings by the trial judge this is a brief writing contest but i think it is that's a scary i'm sure the court is not limited itself to what what they've written in their statement of facts it's simply not accurate it's not consistent with the rule requiring a fair statement so that the court can understand what happened in the trial court if everything is considered at the very taking care of his kids no criticism of him for a year he had the kids two nights a week and every other weekend during the separation never a problem ever  testimony was that she didn't remember how fast she was going she didn't remember lunging if you will she waited there when she noticed that his parents were there she figured out it wasn't it's time to talk the surveillance wasn't just based on him surveillance on her there were in the record you will find multiple occasions where he called to say something's up with her could you please follow her to be a professional private investigator to his father and to his brother in law so this wasn't just one or two little instances of something ongoing throughout this trial argument here we have moms at home all during the day of the children dad's home me i mean again we're probably in a little bit of an even standpoint here now what's this termination testimony was refuted by other witnesses regarding seen the children parked in front of the house and that seen the children parked at the bank in a tent that there was testimony by people from milieu of that area milieu with how far away they were that would have been nearly impossible his testimony are mr erickson statements regarding the record in testimony that she drops the kid off without knowing the teacher or spare there was testimony right after that witness from where he was sitting in a subway parking lot and looking across the street one it was a huge distance two it was impossible to see in the front door to see whether or not there was a teacher these are just little things but when you look at the whole record supporting dollars it's a little bit different than just a clear cut picture a strong little bit of weight that was placed on the grandparents but not fair in this case there was a stipulation between the parties to take into consideration the relationship that the children have the grandparents to take into consideration the time that those grandparents would be with the children it wasn't like my parents who live in california and see my kids every two months this was that the parents and grandparents would be with them every day the stipulation was in no way as an exchange for her ability to parent their children to make judgment calls with the children or allow the judge decided ok the buyer is a better grandparents therefore he gets custody because they're the better grandparents that position where both parents were equal he wasn't perfect she wasn't perfect when it comes down to that the thing that should have been taken into consideration to bring that was who was the primary caretaker of this children and who provided the most ability and continuity in