Child custody trials can be daunting and difficult, especially when you feel out of your element. The process can be filled with emotions and uncertainty, but there are certain steps you can take to navigate this complex process with confidence. Strategies such as negotiation, mediation or collaborative law can help resolve disputes outside of the courtroom. However, when all such efforts fail, a custody trial is typically your only remaining option. Keeping your message at trial simple, coming prepared and organized, and providing the Court with practical solutions all will significantly help people in dealing with custody trials.
Quick Answers
- Understanding legal procedures and efficiently presenting your case are necessary for you to succeed in Court at your custody trial.
- Following the judge’s instructions during your custody trial, as well as the weeks and months leading up to your custody trial, is imperative.
- You are expected to come to your custody trial prepared and with solutions to offer to the family law judge presiding over your custody case.
- Judges expect each of the parties to provide the language they are proposing that the judge order as part of their custody determination.
- The custody trial occurs with a series of witnesses called by the Petitioner followed by a series of witnesses called by the Respondent.
- Navigating a custody trial process requires preparation, organization, and at least three paper copies of every document you want the judge to consider.
- You should have all text messages and other exhibits ready to go before the trial begins, because you typically will not have time to obtain the evidence you need after the trial starts. In other words, it does not make much sense to tell the judge at trial, “I can prove it,” unless you have brought the proof with you.
Decoding the Custody Trial Process
Entering the sphere of custody trials might seem like entering an unfamiliar territory. The language spoken here is legal jargon, and the rules are dictated by the court system. Understanding the basics can go a long way towards eliminating fear of the unknown.
In essence, a custody trial is a legal process where the court determines:
- Who will make significant decisions about the child’s life, such as education, health, and religious upbringing.
- Will all decision making authority be jointly shared, or will portions of or all decision making be awarded solely to one parent.
- Which placement or visitation schedule will apply for the parenting time of the two parties.
- Where or what location the visitation exchanges of the minor children will take place.
- When each party will receive which or the extent of holiday parenting time with the children, including other parenting time when school is not in session.
- Whether information about the children need to be shared between the parents, any other relevant issues related to the child’s well-being.
- What of the above topics are possibly already agreed to by the parties.
The court’s decision is guided by the child’s best interests, which supersedes any personal preferences of the parents. One important legality is that the judge likely will not pull-up tangential documents or information in your cause, even if you know that the judge has the ability to simply look them up. For example, the judge will probably not appreciate it if you ask the judge to do a look-up on criminal records on the judge’s screen, because you are supposed to obtain those records yourself and then present them to the judge on paper if you want them to be viewed and considered by the Court.
Despite the formalities and legalities, a custody trial is not lacking in human elements. The judge, while exercising legal authority, is keenly observing your demeanor and conduct and behavior in Court. So, while you passionately fight for your child’s custody, remember to maintain a high degree of respect for the Court. A lack of decorum or a failure to follow instructions can have serious repercussions. The judge may wonder, if you can’t behave appropriately in Court, how will you teach your child to behave when they grow up? Remember, you are on your best behavior while you are in Court. If you behave childishly while you are in Court, the judge will assume that you are going to behave much worse outside of Court.
Preparing for Your Day in Court
As the day of your custody trial approaches, you should plan for your preparation to take at least four times the length of the trial itself. Therefore, if you are scheduled for a four hour custody trial, you should plan for at least sixteen hours of preparation time. You also have a good idea of your plan or outline for your custody trial, at least a month before the Custody trial occurs. That means that you should know what your main points are going to be, what exhibits you intend to be using trial, and which witnesses you plan to have testify on your behalf. You should bring at least three copies of every exhibit you want the judge to review: one for the judge to review, one for the opposing party to review, and one for you to review. If you have a Guardian ad Litem involved, you should bring a copy for him or her as well. The exhibits should not be just on your phone or electronic device, but they should all be printed out and numbered for identification purposes in advance of the custody trial. You should maintain an ongoing exhibit list that you update as you find or add new documents that you intend to present to the Court and which has each exhibit numbered to correspond with the identification numbers on each exhibit. Start your exhibit list, as well as a witness list, at least 30-60 days before your custody trial. Your exhibit list will help you stay organized and also double as an index or table of contents for the documents you intend to utilize at your custody trial.
Gathering Evidence and Documentation
Evidence can come in many forms, and your custody trial will almost always consist of testimonial evidence as well as documentary evidence. Evidence serves as your primary tool in the custody battle, slicing through the web of claims and counterclaims to reveal the truth. However, not all swords are created equal. The most persuasive evidence in a custody trial will depend on your judge and your factual circumstances. The top documentary evidence in general are as follows:
- Official documents
- School records
- Personal records
- Text message screenshots
- Emails
- Photographs
- Videos
- Witness testimony
For instance, text messages, emails, and voicemails can provide a snapshot of the dynamics between you and the other parent. School and medical records of the child can provide insights into their well-being and reveal what facts should be considered to determine the best interests of the children.
However, gathering evidence is more than just a scavenger hunt. It’s about documenting interactions and building a narrative around your child’s best interests. A well-maintained record of your interactions with the other parent and your child can strengthen your case. Apps like Our Family Wizard, AppClose, or Talking Parents can be handy tools for this purpose. If you do not have a co-parenting communication app, you should create your own separate log that documents and provides a timeline for all or most of the communications between you and the other parent.
Selecting and Preparing Witnesses
If evidence serves as your primary tool in the custody trial, witnesses act as your defense or play another supporting role. They can corroborate your claims and provide a third-party perspective on your case. Witnesses can be professionals like teachers or daycare providers who have had frequent contact with your child, or they could be friends and other parents who have observed your interactions with your child. The witnesses that are closer to you personally may be considered more likely to be bias, while witnesses that are in a professional capacity are more likely to be objective. Providing all of your witnesses information about the purpose of their testimony, practicing questioning, and emphasizing honesty can help them give more credible and effective testimonies.
Understanding Legal Procedures and Terminology
Navigating the legal labyrinth of child custody hearings requires familiarity with legal procedures and terminology. The trial process involves testimonies from the involved parties, legal findings based on custody hearings, and showcasing of evidence. The custody trial typically will begin with the judge asking each party if they are prepared to proceed. There are sometimes last minute issues that need to be brought to the Court’s attention, such as the unavailability of a witness or another reason that you may not have everything you need, and you should raise these issues immediately with the Court at the start of the Court proceeding.
After the custody trial begins, each party will generally have the opportunity to make an opening statement. Your opening statement is not for argument, instead, your opening statement is intended to be a preview or to share with the judge what you believe the evidence will show. After each party has made opening statements, the Petitioner will call their witnesses. After the Petitioner has called all of their witnesses, the Respondent will call their witnesses. Although the party calling the witness will be expected to do the questioning, which is called “direct examination,” you should note that the opposing party will be given the opportunity to ask follow up questions in the form of, “cross examination.” The follow up questions asked by the party who did not call the witness must be limited to the scope of questions and topics addressed in the “direct examination.”
Presenting Your Case
When your day in court arrives, it’s time for you to step onto the stage and present your case. This is your opportunity to tell your story, to let the judge see the world through your eyes. However, this isn’t a storytelling session, and the judge isn’t a passive listener. It is more like a question and answer session where the language used matters. The judge at the custody trial will be scrutinizing your words, your demeanor, your evidence, and your witnesses. Hence, it’s important to present your case in a structured, concise, and respectful manner.
Creating a favorable impression on the judge goes beyond just presenting a compelling case. The way you dress, your composure, your organization of documents, and your communication skills can all play a role in shaping the judge’s perception of you. So, when you stand to present your case, remember, you’re not just a parent fighting for your child, but also a person demonstrating your integrity, responsibility, and credibility.
Cross-Examination, Rebuttals, and Closing Arguments
Cross-examination, a key component of the custody trial, can be considered to be the most challenging part of testimonial evidence. The opposing party or their legal representative will interrogate your witnesses, attempting to reveal any inconsistencies or biases in their testimonies. While this may seem intimidating, remember, it’s not personal; it’s a part of the legal process. Having your witnesses prepared can help them handle cross-examination confidently. When you are experience cross-examination, the most important part is to remain in control emotionally and not get ahead of yourself. Listen carefully to the words of the questions, and your answers should be as responsive to those words and as narrowly focused as possible. Do not provide answers to questions that are not asked of you.
Meanwhile, rebuttals provide you an opportunity to counter the opposing party’s allegations. Rebuttals occur when the witnesses are called or re-called later in the custody trial to rebut evidence previously presented. Rebuttal is followed by closing arguments.
Closing arguments are an important part of the custody trial, but you should be aware that many judges have already made up their minds before closing arguments begin. Your closing argument in a custody trial should not include new evidence, as it is an opportunity to connect all of the evidence together and reiterate anything the judge may have previously missed. Focus on what the evidence that the judge just heard really means. Draw the Court’s attention to the most important exhibits, and provide an overview as to what the evidence proves, and how it shows that the facts are favorable to the outcome you desire, based on the requirements of the law.
The Judge’s Deliberation
With the presentations witnesses, examinations, and arguments all over and done, the spotlight now shifts to the judge. The judge’s deliberation process involves:
- Weighing the evidence
- Assessing the credibility of witnesses
- Finding what is in the best interests of the child
- Determining each parent’s suitability
- Assessing the child’s relationship with each parent
- Considering the stability each parent provides in their living environment and in other ways
- Evaluating why the child reacted in a certain way or exhibited certain behaviors
The age of the child also plays a role in the judge’s decision. While younger children might not have a say, older children may express their preferences, which the judge might consider while deciding the custody. The wishes of the children are also considered in the context of why or what the reasons are to cause those wishes of the children to exist. So, as the judge deliberates, remember, the scales of justice are trying to balance the best interests of your child.
Crafting a Parenting Plan
You should have a completed Parenting Plan ready before your custody trial begins. You may need to craft a parenting plan a few months or longer before the custody trial is even scheduled. The Court usually finds the proposed Parenting Plans of the parties to be very useful, because the judge can see in black and white exactly what the parties are requesting. A parenting plan is like a road map for your child’s future, outlining how you and the other parent will care for your child, including aspects such as how to pay child support. The focus of the plan should be on your child’s best interests, and you should use the state specific Parenting Plan form, if possible.
An all-encompassing parenting plan should incorporate:
- A parenting time schedule
- Custody arrangements
- Decision making authority allocated
- A communication strategy
- Stipulations for holidays and vacations
- All issues to which the parties agree or want to be bound by, as ordered by the judge
- Other aspects that are important for co-parenting after divorce or separation
Think of the Parenting Plan as a compass guiding you and the other parent through the uncharted territory of co-parenting after divorce or separation.
The Outcome: Understanding Custody Orders
As the child custody case concludes, with custody sought by both parents, the judge issues a court order outlining the joint custody arrangement. There are many different names for this document, such as the Court ordered parenting time schedule, the custody judgment, or the allocation of parental rights and responsibilities. It’s the legal document that delineates the roadmap for the parents, the schedule of placement, and the rights and responsibilities of each parent regarding their child’s upbringing. The order is based on the judge’s assessment of the child’s best interests and the evidence presented during the trial. If there are portions of the custody judgment that the parties already agree to, the judge may incorporate those agreed portions into the Court’s custody judgment.
Strategies for Resolving Custody Disputes Outside of Court
Not all battles need to be fought in the courtroom. Sometimes, the path to resolution lies outside the Court through arbitration or other similar methods. Alternative dispute resolution techniques such as negotiation, mediation, and collaborative law provide pathways for settling custody disputes, including parenting time and decision-making disputes, outside the courtroom. These strategies focus on collaboration and problem-solving. They allow you and the other parent to work together to find mutually beneficial solution. The idea is that the parents reach a meeting of the minds on their own, which would allow the parents more control over the upbringing of their children, compared to a judge’s decision reached after a custody trial is conducted.
Summary
Navigating a custody trial is akin to traversing a labyrinth. It’s complex, challenging, and fraught with uncertainty. With preparation, organization, and focusing on the important parts with a simple message, you can paint a picture for the judge and dramatically increase your chances of success. Remember, at the heart of this legal battle is a child, your child. So, fight with all your might, but never lose sight of their best interests or let your frustrations get the best of you. You should do everything in your power to not act in an emotional manner, when you make decisions about how you intend to proceed at your custody trial. In the end, the judge is going to review the factual evidence, consider the perspective of the parents, and attempt to apply the factors provided by law to determine the best interests of the children.
Consult with Family Law Attorney Zachary Townsend
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