When Host Parents Divorce, should Au Pairs testify?

by cv harquail on February 2, 2012

Divorces test all relationships within a family. As the primary/initial family relationship dissolves or is destroyed, all other relationships get implicated. Even the relationships with Au Pairs. 5208973775_f0b6039b21_b.jpg

Previously, when we’ve discussed how divorces affect au pairs, we’ve mentioned things like crazy schedules, divided loyalties, concerns about finances and stability, and even whether one parent can hire an au pair without the other parent’s approval. And, when I saw the subject line of this email (below) that’s what I expected it would be about. I thought this mom’s concern was that she had never had a conversation with the au pair who cares for her children when they are in their father’s custody.

This time, though, there’s a new twist —

What if the au pair has to testify for or against a parent, in court?

Dear AuPairMom —

I was searching the internet for some answers regarding a serious concern for my ex’s au pair. She arrived in the USA in December 2011 to work for one year. I do not know very much about her as my ex refuses to provide any information. The girl seems very sweet, however I don’t have any contact with her except during brief custody exchanges when she is either in my ex’s car or my former residence. I have never spoken to her or been given the opportunity to meet her. I was informed that she does not speak English well, but understands it when spoken to her.

The au pair is supposed to be helping my ex take care of our 2 yr old child. We are in the middle of a divorce and bitter custody dispute over our children. I am seeking primary custody of our child and my ex is seeking joint custody. Our interim custody arrangement is considered joint, but I do have the child 2/3 of the time until our final custody trial in the spring.

My concern is that the au pair is not being told the entire truth about her living situation and about the current custody situation.

It is also my concern that the au pair is not aware that she will be subpoenaed in court to testify during our custody trial.

There is a right of first refusal in my court ordered custody agreement which means that each parent must be notified if we can not be with our children for any length of time. The judge was very specific about this since my ex testified in court that the au pair was hired only to watch the children only in cases of emergencies. My ex has violated this court order numerous times already.

To summarize, I am concerned that this poor kid is completely unaware of what is going on. She is here for a cultural experience and possibly a bit of school. Little does she know, she is going to have to go to court and will be cross examined and ordered to testify about her experiences living with my ex and “helping” take care of our children.

I have the contact number to her community counselor which I got from the au pair agency website, but I don’t want to overstep my boundaries. I don’t want to get her in any kind of trouble or cause any trouble which is why I am seeking your advice.

Is it common for au pairs to get involved in situations such as this and be prepared for court room trials? Any suggestions would be greatly appreciated. I have spoken to my legal counsel regarding this issue and before making a legal move, I wanted to see if your advice might be more protective of the au pair. She is an adult, but in my eyes, she needs to be protected also.

Sincerely, Concerned Mom

See also:

How can we prepare our Au Pair for significant disruption?
When your personal, private challenges affect your Au Pair relationship

Image: Bohekan Heart, Bologna on Flickr AttributionShare Alike Some rights reserved by flatworldsedge


German Au-Pair February 2, 2012 at 6:36 pm

I have a follow-up question here:
Does she HAVE to testify? Is she legally obligated to? Or can she say “I don’t want to get into this, please leave me out of it”?

If I HAD to testify in court without being told so in advance, I would feel extremely betrayed. I wouldn’t want to get involved in a custody battle unless I honestly believed that I would do the right thing. But since she doesn’t even know the hostmum, I don’t see how she could really make up an opinion.

However I personally do not see the point of the Mom stepping in and having the CC tell her about this. If she has to testify that won’t change things for her.

The advise I would give here, being an au pair myself would be, to stay out of it. The reason being that *I* personally would feel like that mom would have a hidden agenda in telling me (why would someone I don’t know care about my wellbeing in a situation like that?) I would feel suspicious and being in a confusing situation like that, I might develop negative feelings to the mom for no reason at all.
I’m not sure, how her testimony will influence your case, but I would not risk her having some kind of negative attitude regarding your person.

NoVA Host Mom February 4, 2012 at 2:42 am

Actually, if the court issues a subpoena, yes, she has to testify. Even in matters of civil litigation, if a subpoena is issued and you fail to appear, the judge has the right to order a “show cause” order, which means you WILL appear and answer to why you disregarded the first subpoena. If the judge does not think much of your answer (say, “I was having too much fun at the beach”), then they can hold you in contempt. The result can be (but is certainly not always) fine, jail time, or both.

So, regardless of which attorney issues the subpoena (and they always issue so as not to worry about someone deciding they had better things to do than appear), there is no choice about coming.

German Au-Pair February 4, 2012 at 4:03 am

But can you come and say “I don’t want to testify on that matter”? In Germany you are only allowed to do so if you would have to say something that would be against YOURSELF.
Wow, this is very horrible. I would hate to be dragged into something like that.

NoVA Host Mom February 6, 2012 at 5:53 am

You can only invoke the 5th Amendment of right against self-incrimination if you are subject to the proceedings (your testimony would directly incriminate you in a criminal act). So no, the AP has no option to tell the court she’d rather not.

Should be working February 2, 2012 at 7:38 pm

First, I agree to some extent with German Au Pair. It’s not up to you to worry about the au pair’s situation. You have plenty to worry about already.

My concerns would be elsewhere, if I were in your shoes:

1. How can I prevent the au pair from being coached or bias against me in this case? Answer seems to be that you cannot.

2. How do I feel about the fact that my children live part-time with someone I’ve never met, and this person takes care of them for up to 45 hours a week? Can I get some kind of legal backup, for future or present instances, where I’m not ok with this individual–which would mean knowing them a bit. Answer to this: I have no idea. I am guessing there is not.

3. How can I get information from this au pair that would be useful to my case, and also get as much information about myself to the au pair that would be useful to my case? Answer: Probably not possible without being intrusive and inappropriate.

4. How I can I help the au pair be a supportive, loving caregiver to my kids during this process? Answer: Sounds like you cannot.

That series of questions and answers leaves the au pair out of your sphere in my mind. Perhaps contacting the LCC makes some sense, but if it were me I would be less concerned about how the au pair will deal with this than with how the au pair will help my children through this. This is a rough situation. I’ll be curious to hear what others say.

One other thought: if cooperation with your ex is possible, I would in your shoes offer to hire an au pair myself (i.e. of my choosing, with consultation with him if possible) and schedule her hours, maneuvering regulation max-10-hour-per-day shifts, to be with your kids at his house. Her shifts could be, for instance, 3pm-midnight and then midnight-9am for two overnights a week. Sleeping obviously permitted while kids are sleeping (and a private bed for this purpose must be available), but she needs to be available for awake-work in the night in case the ex has to go to the hospital. I think this would work with the rules, because it’s a 10 hr shift each “day”, glued together to make a 20-hr shift. With sleeping kids it’s actually quite humane, and not a bad deal for the AP, with lots of free time in between. The gov’t rules do not, in my understanding, prohibit stretches of more than 10 hrs at a time, but instead have that “in one day” provision. We have used this loophole, for instance, to have a spousal overnight at a hotel: 3pm-midnight and then returning at 10am the next day.

Julie February 3, 2012 at 12:36 pm

The 10 hours is one period at a time. State Department strictly forbids the 20 hours at one time–au pairs can’t actually do overnights unless they are only the “responsible adult on duty” for 10 hours. You need to have babysitter or family before or after. The family would be kicked out of the program if found out–though many lawyers have tried to have a “day” defined differently.

azmom February 6, 2012 at 3:28 pm

this USCIS page actually says 20 hours so maybe 10+10 is okay?

Place the au pair with a host family unless a written agreement between au pair and the host family detailing the au pair’s obligation to provide child care has been signed by both the au pair and the host family prior to teh au pair’s departure from his or her home country. Such agreement shall clearly state whether the au pair is an EduCare program participant or not. Such agreement shall limit the obligation to provide child care services to not more than 20 hours per day or more than 45 hours per week unless the au pair is an EduCare participant. Such agreement shall limit the obligation of an EduCare participant to not more than 10 hours per day or more than 30 hours per week.

Should be working February 6, 2012 at 4:17 pm

I’ve noticed that ’20’ before too, but it seems to be a typo, since elsewhere it says 10 hrs/day. Again, the distinction here is what counts as a “day”. If you take midnight to midnight as a day, then I think the overnight babysitting for 20 consecutive hours is possible. Really a ‘day’ can be any 24-hr stretch of time, it doesn’t matter when it starts and ends, it’s just a question of whether the AP can be assigned 10 work hours at the end of one ‘day’ AND the beginning of another (and keeping the definition of a ‘day’ consistent while scheduling). There is no requirement that I know of that APs have a certain number of hours off between the end of one workday and the beginning of another. Otherwise how could HPs, for instance, go out 6pm-2am (AP in charge even while she and kids are sleeping) and then have the AP work the next morning 7am-noon?

hOstCDmom February 2, 2012 at 8:36 pm

Is the AP going to “have” to testify because your EX will subpoena her? or because you will subpoena her? Thinking stragegically from your side, I’m wondering if you are planning to subpoena her in order to cross examine her about the number of hours of care she is providing, such care presumably occurring when your EX is unavailable and did NOT give you the right of first refusal, and thus violated the intermin custody order. My guess is that this could be quite persuasive evidence, and in fact the existence of the AP is an evidentiary gift to you because if it were your EX’s mother watching the kids when he is called into the hospital, you would be unlikely to get clear, honest answers along the lines of “Yes, I watch the kids 35 horus per week when Bob is at the hospital”)

If this is the case, why would you want to give her a heads up (sorry if that sounds cold, I have my professional thinking cap on purely re strategy for the OP) — you don’t want her to flag for your EX that you are going to subpoena her and give him a meaningful opportunity for him, or his lawyer, to coach her more extensively than he already will when she is served. Or, are you hoping to co-opt her as the super nice mother who befriends her and garner her sympathy so that she will feel used and abused by your EX so that when she testifies she will be disposed to be honest in a way that will help you in the custody battle?

I’m asking these questions because I just don’t get a few of the facts in the OP’s letter (perhaps CV altered to protect privacy and in doing so things don’t fit together like the “real” story would), I’m not clear why the OP is convinced the AP will be subpoenaed?

Should be working February 2, 2012 at 9:14 pm

HOstCDmom’s interpretation makes a LOT of sense with respect to this post. I can see she is a professional. Why else does the OP put in the post all the information about first refusal, if it is not the OP’s intent (or her lawyer’s intent) to ask the AP for info about hours the kids are not under the dad’s care? And indeed an AP might be about the best witness of all. The post, with its worry about the AP’s lack of awareness of the situation, is a little strange in this light.

hOstCDmom February 2, 2012 at 10:49 pm

“Watch out” CV – this could be the impetus for AuPairMom.com to get its first subpoena to compel disclosure the identity of a poster …! If EX/HD sees himself in this post, he may well attempt to prove that the mom plotted and manipulated the situation/influenced the testimony of the AP to undercut it’s weight with the court…

(…I’m only kidding CV…well mostly kidding (!))

German Au-Pair February 2, 2012 at 10:44 pm

So I was NOT the only thinking about a hidden agenda here? I thought I was being a little paranoid.

hOstCDmom February 2, 2012 at 10:44 pm

sorry, that should have been “INTERIM custody order” above typing too fast!

Taking a Computer Lunch February 2, 2012 at 11:51 pm

On pondering this post, and returning to it a couple of hours later, I see that many posters are thinking the same as I – “I smell a rat.” OP, you obviously have your own agenda and your own reasons for wanting to control every aspect of your children’s lives. Your ex sounds as though he is making a reasonable effort to provide for the well-being of your — and his — children when they are in his custody.

I sense you are baiting us … You and your attorney are obviously going to subpoena the AP. It seems like an ugly bag of tricks to me. It’s a lot of pressure for a young woman, whose English might be imperfect, but also equally, may have formed a loving bond that provides stability in your children’s lives. And you want to wreck that?

Think of this – here is an adult in their lives who has no agenda in the battle between you and your husband. She may very well be the rock they need at this moment in their lives.

You don’t mention how old these children are, or what your goal is in having the AP testify? Eliminating your former husband’s parental rights, I assume? But I can already tell you what the consequences may be – rematch. And while you will have “won” that round, it is your children — not your ex — who will have lost. If your husband maintains parental rights thenI can guarantee you he’ll have no problem finding another AP, but your children will have lost the stabilizing relationship they had with the first one.

Not having been through divorce (pretty amazing given the stats on parents raising medically fragile special needs children), I can’t say I’ve walked in your shoes. However, it seems to me that a therapist might help you work through your anger, and help you see the bigger picture better than your attorney. Think past your goals to all of the consequences.

NoVA Host Mom February 4, 2012 at 2:54 am

See, I knew I was not the only super-cynical one here! Yeah, the email to CV is very one-sided, and the reality is that this should be something the divorce attorney would have already been aware of and already had an idea as to how to approach. I mean, regardless of the final outcome, I’m thinking that any parent in their right mind would want “in” on the AP process since this is not a standard “babysitter” situation. This is someone who is living in the same house as your children. My guess is that if this is as contentious as it is made out to be, some of these things (with the AP being hired, etc) were already addressed in court. Since usually everyone leaves miffed about some portion of the judgements, whether temporary or permanent, I’m a betting woman that this aspect (knowing the details of the AP) was somehow a portion the OP lost. After all, she knows the “court allowed circumstances” which allows the AP to care for the kids.

So, I’m just going to say that people hire attorneys for a reason and perhaps the OP should take the high road and put her money to work for her. Let the lawyer make the determination about “warning” this “poor, unsuspecting AP.” Another good guess is that the AP is not as unknowning as the OP likes to portray. I mean, there is a reason for all the court dates and lawyer phone calls for the HD, and why everything seems so scheduled and specific. They may not say anything, but APs are pretty clued in more than the OP cares to know.

As to the alleged “violations” of the court order and use of the AP, that has nothing to do with the AP. That is strictly between the HD and the OP. So be a nice OP and let’s not take that part out on her, okay? I’m so with TACL about not rocking the only stable boat those kids have. Kids are not a rope to play tug of war with (a phrase I repeat too often on my job).

Host Mommy Dearest February 2, 2012 at 11:54 pm

“I have never spoken to her or been given the opportunity to meet her. I was informed that she does not speak English well, but understands it when spoken to her.” Her spoken English should be improving daily hopefully, and she should have been able to speak basic English before her arrival even. Not that this makes you wrong AT ALL, but it seems your concern is (and should be) for your kids and not the AP. I would worry less about her well being (worst case scenario she is rematched) and more about whether she tells the truth, is not overly loyal to your ex, and she is not too clueless to be at all helpful in the battle – if she has information that could be helpful.

SingleHM February 2, 2012 at 11:58 pm

I am a single mom who went through a messy divorce last year. I have primary custody of my children, and we have joint legal custody (have to share decisions). After I went back to work (mid-separation), I had to negotiate with my Ex to get an au pair to help me out.

I’m in the same position of your Ex. I have the au pair and my Ex does not. However, I have her for my child care needs after school and during holidays, sick days, etc. My Ex only has visitation of the kids and she doesn’t help him with the kids.

He was involved in the selection process and was able to view her profile and information. He’s aware of her experience, and all the other information the au pair has to provide. He has met her during visitation dropoffs and pickups. But they’ve never sat down for a conversation or a Skype session. She doesn’t feel comfortable talking with him and I’m not sure there’s a need.

Were you involved in the selection process of this au pair? During the pre-divorce period, you both should technically have joint legal custody of the children, which means you both have to discuss any medical, educational or other decisions that impact the children. Bring this up to your lawyer and discuss how this bothers you. If you weren’t involved in the selection process, you can ask your lawyer for discovery from his camp on information about her.

During my hairy divorce, we thought we would go to trial. I had to have witnesses lined up. We ended up settling and doing so through mediation. I didn’t think that it would be able to be settled in mediation, especially since I sought full custody (legal and physical), and financial issues, but surprisingly, it went well (long days in it, but good enough). My lawyer states that most of the time divorce cases settle and don’t see the light of a courtroom.

Just my two cents: I highly recommend settling or mediating. You will FAR get more of what you want then if a judge decides. He does not get the full story and will have to make a decision based upon only the info from the trial. EVEN mediation, when you can tell the mediator more information in a more casual setting will get you MORE than you will in court. Had I gone to court, I probably would NOT have gotten the arrangements I have (physical custody and legal custody with me having ultimate say in a disagreement + financial settlement to my liking)…if I went to court.

As far as bringing the au pair into court, it’s unknown. I would MUCH rather hire a custody evaluation in your case than go to trial and bring in a stranger, who hardly speaks English and expect her to describe things in a stressful courtroom. A custody evaluator/evaluation is a pricey, yet best use of funds to provide the best location and situation for your children and I highly recommend it in a contentious divorce situation.

I am not a lawyer, but after a year and ~$35,000 later, I’m pretty aware of a lot of stuff!

Best to you and your children!

SingleHM February 3, 2012 at 12:05 am

I forgot to mention that although I talk with my au pair some about the situation between the ex and I, I have not told her the WHOLE story and have left out details that are truly not her business or is history.

She will make impressions of her own, just like mine did, based upon what the children say, how they react and behave and what your Ex is like around her.

She is an adult and probably pretty capable of these things and chances are when your Ex interviewed her, he had to have told her the situation and she had to be OK with it to MATCH and come here.

I told all the au pairs I was in contact with about my situation (single mom, my situation — highlevel, what interaction was going to be with each parent, etc.). I had some that couldn’t / didn’t want to deal with it, and others that didn’t care or wanted to come anyway…like the great au pair I have.

You have a right to talk to au pair, just as much as your Ex does, because she cares for your children. Strike up a casual conversation at drop off…and eventually you might get to know her a bit.


Ana February 3, 2012 at 12:12 am

I’m sorry to hear that you divorce is getting ugly. I would not involve the au pair in the situation. If I was the au pair, I would not get involved unless I was obliged to.
I agree with the hostmoms that she is providing care for your children and I am sure they are already bounding. Children feel a lot the tension between the parents and the au pair might be the support they need right now.
I was an au pair for a divorced hostmom that was going through a custody battle with her ex husband. She asked me if I would testify against the ex husband I said NO. Because just like the au pair in the story, I just met him to exchange the kids before and after his visitation. I heard her side of the story but I did not hear the other side, I just did not want to get involved at all. Unfortunately the hostmom resented me and never let me see the children after I left the house, but I have peace of mind because I know that I did the right thing.

Au Pair from Brazil February 4, 2012 at 4:49 pm

Well… My view on this post, reading it at first, was that the mom/dad (i couldnt get it if it was a father or mother writting about father/mother) was worried that the EX would subpoena the au pair to talk good on his/her part.

Like, as the OP doesn’t know her , doens’t know what she will say in court and is afraid the AP will give the judge the best answers about the EX side, like how wonderful he/she is for the children and how EX deserves joint custody in her opinion. I do think the OP didn’t give us the real info, because I think this person wanted to sound worried and not selfish, as in thinking about the poor AP and less on herlsef/himself.

But I think the real reason OP is worried is because the AP in court can be a weapon againt her , in the case she doens’t know the EXs routine at all for taking care of the children during Ex’s time with them.Even though OP mentioned that the AP works not only on emergencies, that may not be the entire true… maybe she works as a regular AP during the time the kids are there. If she got the info from the children, a 2 year old and other she may have, the AP lives there and the kids might always think like she is at work.

And I imagine the kids talk about the AP when they are with their mom/dad right?

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