The Diavorce Solutionist

Change to Child Custody Arrangements during Covid

Child Custody Arrangements

Many parents are struggling with a multitude of issues surrounding Covid and co-parenting.  Parents are overwhelmed with things that were once immaterial or non-existent pre-Covid.  Things like virtual schooling vs. in person school, public outings vs. staying home and so on.  Being a divorce coach, I can not keep up with the number of people who ask about the possible outcomes of not complying with child custody arrangements and orders.

Using Discovery in Divorce and Child Custody

Understanding Your Child Custody Arrangements or Order

If you have a custody agreement or custody order, you need to know how it should be interpreted & followed considering Covid.  Most custody documents clearly state directive with respect to visits, education, medical but not much more than that with respect national emergencies like the current one. Even though “the best interests of the child” factors served as the basis for the custody order, that may not be so easy now.

It is not easy to discern what is best for kids when fear is imminent and rampant.  Parents are overwrought with confusion, and rightfully so. The one thing that should be clear though, that is that a custody agreement is a court order and should be complied with no matter what. But what if compliance puts the child(ren) and their loved ones at risk?  This does not excuse violating the order, but depending on the specific facts of the case, may explain it.

Disagreements with the Custody Arrangement in Emergency Situations

The “best interests of the child” factors are based on the same principles no matter the circumstances of the case.   This means that the court will weigh what is in the child(ren)’s physical, mental and emotional well-being. However, though parents generally want what is best for their child(ren), what they think is best for them is subjective especially in emergency situations.

Parents can have a difference in opinion concerning education, health, discipline, etc. and still be suited to be parents.  And in cases where there is a formal custody arrangement, disagreements in unanticipated event can come up.

In an ideal world, these disputes would be resolved amongst the parents.  But unfortunately, there is hardly anything ideal about family law.  From a court’s perspective though, it is important that “families” work together to hash out things related to their family.  At a minimum, judges expect parents to make every attempt to settle disagreements without court intervention.

Getting the Court to Intervene during a Pandemic

Seeking court intervention should be the last resort under normal circumstances, let alone a national crisis.  Most courts are still operating on a limited basis and capacity.  In fact, the method you choose to proceed in court can determine how and if your application is “heard”.  Some courts are forcing parties to postpone anything not considered an emergency.  Other courts are going a step further by prioritizing the emergencies.  Either way, unless your issue is urgent, you may be forced to settle it yourselves anyway.

Under normal circumstances, there are two ways to proceed in court when there is a disagreement about custody.  One method is to file a Motion to Modify Custody, the other is to file a Motion for Violation/Contempt of a Custody Order or Agreement.   Guess which one will get you into court right now?

Consequences of Filing a Motion for Violation/Contempt

If a parent files a Motion for Violation or Contempt against the other for not following the child custody arrangements the consequences can be harsh.  For instance, if a custodial parent withholds visits from the other due to exposure risks, the court can impose civil or criminal contempt sanctions, change custody, or impose financial fees.  Even in light of what is going on right now, the court can and will exercise its authority to penalize the violating parent.  Furthermore, the factors the court considers to make the determination will be cumulative.  So, in other words, a parent who blatantly chooses to disregard the order may be punished more harsh than one who attempts to work with the other parent.

Sum it Up

You are taking your chances either way.  What consequences are you prepared to live with?  How can you avoid the threats or minimize the risks?  Think long and hard about your options.

By Tracey Bee, The Divorce Solutionist

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Using Discovery in Divorce and Child Custody

What is DiscoveryDiscovery in divorce and child custody in divorce and child custody?

Discovery in divorce and child custody matter is the legal process where pertinent information, relevant items and material facts are exchanged between opposing parties upon request.  Discovery is used in litigated cases of any type. It applies to civil, criminal and family law cases, just to name a few. However, the extent to which types of discovery is used may vary from case to case.

Discovery in divorce and child custody cases has a unique process and methods used depends on the issues. Whether the case is on the trial track, as opposed to settlement track, matters as well.  The more contentious the issues, the less likely the case will be prepped for settlement. This means the case will require more extensive discovery so that it is “trial ready”.  For example, in a divorce where the main issue is division of the marital home but there is a question of who paid the down-payment,  a Notice to Produce and/or Notice to Admit are appropriate.  However, it is different where one of the parties is alleging that the other party is hiding assets.  In those cases, a more extensive discovery process may be warranted like depositions.

Should You File First in your Custody or Divorce Matter?

Type of Discovery:

There are 5 major methods of discovery you and your lawyer can use in your divorce or child custody case.

Interrogatories:   these are written questions that each party request to be answered by the other.  The party must answer truthfully under the penalty of perjury. These answers can be used as evidence at trial.  They usually ask for things like, the identity of expert and lay witnesses, a brief summary of their intended testimony and the exhibits they will use. There is usually a 30-day time limit for the responses. Also, some states limit the number of questions that can be asked in interrogatories.   They can be pre-printed forms, generic, or can be tailored by asking specific questions relevant to your case.

Requests for Admissions:  this is a series of short sentences that the other party must respond to.  The other party must admit or deny facts or the authenticity of particular documents.  This method is often necessary before trial because it minimizes the need to call witnesses to authenticate evidence at trial.  This reduces the length of trial because it reduces the number of unresolved issues beforehand.  Requests for admissions works best when contested factual disputes do not involve subjective opinions.

The key is to frame questions in a way that narrows down the possibilities as much as possible.  The questions should leave no room for anything more than a “yes” or “no” response. For example, “Do you admit that you visited your parents home on July 1, 2010”?. As opposed to “Do you admit that when you to see your parents back in July 2010 that it was to get their help”?.  See the difference in the potential responses, the latter may need more of an explanation than a simple “yes” or “no”.

Requests for Production or Requests to Produce:  these allow a party to request the other party produce specific documents relevant to your divorce or custody case.  The request the production of items either in the other party’s  possession or that party has “custody or control” over.  They refer to any type of statements of any party; photos, videos, audios, etc.; financial documents; etc.  The party in possession can object to the request if they deem them to be overly broad or improper.  If there are no objections, the items must be produced for copying if the other party has them.  In situations where the party only has “custody or control”, then a signed release is produced.

Depositions:  this method gives the parties the opportunity to question any party or witness, in person and under oath. Their testimony can be used in court to either refresh the deposing witness’ memory or to impeach them.  They usually take place in an attorneys office, but can be conducted on any location agreed upon by all parties.  The deposing parties are sworn in and a court reporter is present to take notes.  This method is very expensive and can drag on the divorce or child custody longer. Nonetheless, it can be a necessary tool where there are several contested issues, like custody.

Subpoenas:  technically not considered discovery but they are another means to acquire information relevant to divorce or child custody matters.   This method is very simple and straightforward, thus often used as an alternative or follow up to other failed discovery attempts.  It is ordered by the court so failure to respond to subpoenas can result in a contempt charge by the court, which may mean civil fines and criminal charges.  Subpoenas can order you to show up to court, to produce documents or show up to court with documents.  Anybody who has information or items related to the case can be served with a subpoena.

How to use discovery in divorce or child custody?

Most people do not expect to spend tons of money or time in preparing their divorce or child custody case for trial.  No matter how contentious, it is not unreasonable to have limits with respect to your family law case.  You can expect your case be resolved without dragging it out using discovery methods.  However, when the issues are so complicated that there seems to be no end in sight utilizing all the discovery methods available is necessary.

Furthermore, the level of cooperation of both sides can delay/prolong the process.  The tedious process can be a tedious one for all parties, since gathering information can take time and effort.  In addition, the extent to which both sides respond truthfully, fully and timely can also determine how the discovery process is used.   Discovery is typically used to obtain bank documents, financial statements, tax records, real estate deeds, business records, medical/mental health records, etc. in divorce or child custody matters.

Scenarios for use of discovery

Divorce cases where the issue is merely a distribution of identifiable assets, discovery use may be limited to pre-printed forms that is part of the attorney’s customary practice in divorce.  In other words, the discovery process may be routine and limited to requests to produce.

In divorce actions where the issue is a division of assets that need identifying,  searched for and located, valuated, etc. then the discovery process would be much more extensive.   The use of requests to produce, interrogatories, subpoenas and even depositions may be inevitable.  These methods can be used together, or individually in instances where use of one method failed to produce desired results.  So for instance, a party may use requests to produce to get copies of bank statements of hidden assets.  If the other party denies any hidden assets in their responses then other methods should be used.  Denial or failure to answer justifies using depositions as an alternative.

In child custody cases, utilizing requests to produce and interrogatories may be the way to get evidence relevant to the case.  Specifically in cases where joint or sole custody is disputed, various methods of discovery may be best. Discovery would typically focus on proof of alcohol or drug abuse of either party, domestic violence or anything related to either party being “fit” or “unfit”.  And although the use of depositions is not typically used to prove “the best interests of the child”, it is a very helpful method to establish them.

Subpoenas can be used in any of these scenarios.  In fact, they probably should be used before resorting to more expensive methods like depositions.  Requests for admissions are most useful when the divorce or child custody case is most certain to go to trial.

It is important that you understand the different methods of discovery and ways to use them.  Although your attorney may opt to use a method, a combination of methods or none at all, it is important to have an idea of what is available and ways to implement them.

By Tracey Bee, The Divorce Solutionist

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Preparing Your Case for Your First Court Appearance

Preparing Your Case & Gathe Other Evidence

It helps to have an idea of what is important, what is admissible, what is legal with respect to preparing your case of divorce or child custody. Emails & text messages are usually full of pertinent information and should be high on the list. Although text messages should be formatted in a form that is easier to comprehend, some courts will allow them to be submitted in their original context. Correspondence from caretakers, therapists, etc. are also particularly important and given considerable weight when appearing before the court. Some third party correspondence is subject to hearsay rules however, and may be rejected on that basis. Reports from doctors and other related professionals are also considered “material” to issues surrounding custody or divorce.

Using Discovery in Divorce and Child Custody

Better to Overdo it than Not

Typically, the first appearance is for foundational purposes only. The court is going to spend time getting a clear understanding of the issues that are relevant to the case. It is best to bring all documents, texts, photos, etc. even though the chances of the court actually reviewing them are slim. These things are more appropriate for settlement conference, mediations or court hearing/trial but do serve a purpose at the initial appearance. Having all of these will help you to narrow down what is most relevant to the case from the court’s perspective, which in turn guides you through the overall process.

Prioritizing Your Evidence

Background information is not as important as you think. When preparing materials start with the decision you want the judge to make and provide only the information that will help the judge get to that decision.  You should have an idea of exactly what you want the judge to rule on, which should include an alternative or second choice.  You do not need to disclose these to the court or your adversary but have an idea of what the other favorable options look like.

In addition, include things that can dispute your adversary’s position. These documents, evidence, etc. should certainly be ranked according to how “strong” their evidence is but the important thing is to not overlook their importance.

To keep things simple and easy for your judge to read, your documentation should clearly answer three questions:

  • What’s the issue to be decided?
  • What’s the result you are looking for?
  • Why should you get it?

Some background is often needed, but too much of it clouds the most important & relevant questions. Sticking to the relevant facts that support your desired outcome tells the judge you are a focused & organized and that she/he should pay attention to you. The more time you spend on things unrelated to your end goal, the more it seems that you do not know exactly what you want or why you deserve it.

Keep your documents brief and to the point. Otherwise, it is like not knowing where you want to go. And in that case, you may end up somewhere else.

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