Can Britney Get Her Kids Back?

A story that began as a tabloid tease about a wild young celebrity on the town is continuing to devolve into the kind of tragic spectacle that prompts more winces than winks. On Monday a Los Angeles judge will again be called upon to review the sad details of the Britney Spears child custody case.

Early in January a clearly distraught Spears was taken from her home by ambulance after a visit with her two sons turned into a chaotic scene that prompted a court-appointed monitor to call the authorities. Spears ended up in the hospital for psychological evaluation, though she signed herself out after a one-night stay. Now Spears's ex-husband Kevin Federline is apparently ready to request a change to the current custody agreement, which gives her limited and supervised access to their children.

NEWSWEEK's Susanna Schrobsdorff spoke to Karen C. Freitas, a prominent family law attorney with Cotkin & Collins in Los Angeles, about how the courts handle cases when a mother is in chronic distress, what Spears would likely have to do to regain access to her toddlers, and why her situation isn't that unusual in family court. Excerpts:

NEWSWEEK: Is it likely that Britney Spears will lose even supervised access to her children—at least in the short term?
Karen C. Freitas: Unfortunately for Britney, the other side doesn't have to do much. She's handing [Kevin] Federline his case. It's not as though the court has a difficult decision. Federline doesn't have to be Superdad. By law, if someone is not physically or emotionally available to parent, they have to grant custody to the other parent. And she has not followed the standard protocol to regain custody.

What would that protocol be?
As attorneys, we'd say you have to show the judge that you're working on your problems—whether they be an eating disorder, drugs or alcohol or some sort of condition like panic attacks or a mental illness. You must show that you're under a physician's care, that you're doing what you need to do to try and get better. That shows you're a responsible parent.

So the fact that Spears or any other parent might have serious emotional or substance problems does not disqualify them from custody or access?
No. It's the lack of redress. It's the poor judgment and irresponsibility in not addressing your issues. If you as an adult aren't taking care of yourself and are not physically or mentally available, obviously you can't take care of young children.

It's been reported that Kevin Federline will be calling on the testimony or the reports of the firefighters and police that arrived on the scene when Britney was taken to the hospital. Is that usual?
Yes. This whole case is going by the book, except, of course, that the media is involved. I'm assuming that Federline is going in to seek a court order to modify the prior order that she have supervised access to the children, so he's going try and show that she's unable to care for them.

What would they ask the police and other witnesses in a case like this?
They ask, "What did you observe? What is the condition of the parent? What was said? What was done? Where exactly were the children—what did they see?" It can make a significant difference if the inappropriate behavior, like intoxication, poor choice of words—the use of expletives or things like that—was in front of the children. That kind of contact could severely negatively impact the children.

Would the court-appointed monitor be called on to testify in a case like this?
The court could call on her, yes, but what a monitor typically does is do a report, put it all in writing. I know the monitor in this case, and she's a family therapist with a lot of experience. She's not at all prone to overreaction.

Are they evaluating the state of Spears's children in the wake of this incident?
I wouldn't be surprised that if any custody evaluation were suspended because Britney is not stable. I believe she may be in what we call serious and chronic distress.

How do these evaluations work?
They're really evaluating the parents, not the kids, to see how they interact with the children. Normally, in advance of the custody trial [due to start in the spring in the Spears case] you'd have these evaluations, but in Britney's case they're probably not happening.

How long does it take to show a judge that a parent is the on mend and able to care for her children?
Depending on the severity of the situation, involving the parent's illness or problem, it might be as little as 90 days or it could be two years. Let's say you get a DUI. I had a case where the mother hit four parked cars as she was leaving a restaurant and got arrested. Well, of course, the next day the dad was in court seeking a modification of custody. In that case the same judicial officer that's now handling the Spears case did what he needed to do, and that was to, on a very temporary basis, was to have Dad have custody.

What did you recommend this client do?
We immediately addressed the issue with the client, and literally days later she started to gain some custody again. She was not an alcoholic and had never had a DUI before, so once she went through a three-month [counseling] program the judicial officer restored primary custody to our client.

And in more extreme cases, where there are repeated or bigger issues than a single DUI?
If it's a chronic drug abuser it could be two years of testing positive, or a year of [passing] drug tests. We once went through three years with the mother being addicted to prescription drugs. The father is our client, and he has sole legal and physical custody, but we were battling back and forth with drug testing and counseling for years. She went into rehab four or five times, and she'd be OK for 60 or 90 days and then would relapse in the kind of big scene like Britney.

So the Spears case might drag on for years as they continue reevaluate the situation?
Yes, of course. Because when it comes to custody of children there's no such thing as a permanent order. Until the children are 18, it's always modifiable under the laws of the state of California. And they have to be, because circumstances do change.

What happens when the problems with a parent are less severe or obvious?
If you suspect the other parent has issues with alcohol or drugs you have to call witnesses: observers, neighbors and teachers.

Are judges less likely to remove custody or access to the children from a mother than a father?
Yes, I do believe that they are. I think that this is because the child-developmental literature describes a more traditional model that mothers be the primary parent for the children. However, as kids get to be more school age that changes. And the judges in the last 10 years have been getting looser about giving the fathers overnight visits even with young babies.

Do celebrities or the very wealthy have an advantage because they can say they have staff to help them and perhaps access to the best treatment that money can buy?
No, it's the parents the court is looking at. [They are her] children, not the nanny's children, not the bodyguard's children. She's got all these resources, and it's not helping her at all.