I recently suggested to a group member that she refrain from referring to her child as property in case of child custody. Her post had a part where she said “keep my child all to myself.  She was asking for advice on whether she should let the Dad sign the birth certificate when their child was born. She wondered if his rights would be trumped by hers is she didn’t. Well she didn’t like what I said but I was only trying to help her avoid unnecessary headaches later on. There are advantages to keeping the Father’s name section blank, no doubt about that. But some of those benefits cease to exist when he seeks to enforce his rights.

Fundamental rights as parents

child custodyChildren born out of unmarried relationships are not chattel, no more than ones born out of marriage are. They don’t belong to either parent over the other like s piece of property. They may be one or both parents’ responsibility but certainly not their possession. In this country, all parents have fundamental rights and one of them is access to their blood related child. To have those rights infringed upon or terminated requires isn’t easy. It entails a process that goes beyond just opting out of have dad sign the birth certificate. Not to say that abusive parents’ rights trumps their child’s safety or well-being. But they are certainly entitled to due process before those rights can be taken away.


Should You File First in your Custody or Divorce Matter? 


In most states children born outside of marriage are the legal custody of the parent who has the child with them. In most cases this is the mother but can be the father too. Their laws expressly state that “legal custody is with the mother who gave birth of that child until the child reaches age 18.” However, what this implies is that the mother can make any and all decisions for the child.  And although this is true, the father can fight this at any time.

“Presumed” legal custody meaning & implications

When the mother has legal custody as a result of unmarried status, this is “presumed” custody. Presumed is “a legal inference that must be made in light of certain facts.” So that means that the fact that mom delivered the baby and has baby with her, that her having custody can be inferred.  This is different than if a court of competent jurisdiction had determined she had custody. In other words, presuming custody did not involve an assessment of her being “fit” enough to have custody.

Rights with “presumed” legal custody

A parent who has presumed custody has some rights, until the other parent challenges them. All decisions with respect to medical, educational, residence, etc. are totally up to the presumed parent. A parent with presumed custody can get a passport for the child, can relocate without limitations, can choose homeschool over in person, and so on. However, if that parent seeks government assistance of any kind other issues may arise.

The problems surface when Dad decides that he wants to have more inclusion or thinks he can do a better job. So, whether he’s on the birth certificate or not, he can challenge custody. As long as he knows he’s the father and decides to exercise his rights, all of Mom’s sole authority ends.

Having presumed custody does not mean you have to deny the father of access to the child. In fact, facilitating and fostering some type of involvement may work in everyone’s best interest. However, it is important to note that allowing the father to have contact before paternity is established can be tricky.

Disputing “presumed” legal custody

Presumptions can be rebutted. Inferring something exists because of the facts available only means that anyone can prove otherwise. In custody situations, Dad can rebut the presumption of legal custody by proving that he has rights as the father. To do this he must establish paternity in one of two ways. First, he can sign an Acknowledgment of Paternity, where both parents must complete and sign a form from his local government agency. The other method is done by filing a petition in court and having a judge order a DNA test which results in an Order of Paternity.

Once the father establishes paternity his right to visits, decision making and custody are all up for debate.   His rights as Dad automatically take effect and he is entitled to almost everything that Mom is entitled to.  The courts will level the playing field so to speak. So a mother who has had presumed legal custody will not be given more consideration in court just because paternity was never established. Conversely, a father will not be at a disadvantage because he was not on the birth certificate or because he never sought paternity until the court proceeding.

Conclusion

In sum, unless your child was created by an anonymous sperm donor, both parents have equal rights to access to their child.  Our legal system sees both parents involvement as a necessary component to their children’s growth and well-being.  This is the starting point in all cases, whether that is the case for every parent is to be determined by the courts.

Schedule your FREE 15-minute consultation with me if you would like to discuss affordable options for divorce or child custody.

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Family law attorney gets the worst wrap in the legal field. Let’s be honest, they can be the most difficult to work with in divorce and custody cases. They often Family Law Attorneycome across as unemotional, they barely recall important facts, they fail to communicate effectively and they totally ignore your wishes at times.

Data reports that more than half of family law clients are disappointed in their attorney’s services. Also, with respect to the overall profession, family law attorneys are hated more than any other specialty.  Despite these statistics though, working with the right attorney on your divorce or custody case can get you favorable results.

You have Rights as a Client

You get to dictate how your case is handled. That’s right you have the right to determine which moves your attorney makes on your behalf. I bet you did not know that huh. Well…technically you do but there’s a caveat.  Most competent attorneys will not give you complete authority, afraid that you make foolish decisions. They do have ethical obligations to give you the necessary legal information to make informed decisions. And when they do, and you insist on deciding against it, they can withdraw from your case.

So although it is your right, it may not be the wisest thing to do. Why, you ask, would an attorney take issue with his or her client exercising their right? Well because the attorney’s job would be pointless if they didn’t. Attorneys have egos and a client who goes against their own lawyer’s advice bruises their egos. Just kidding. The real reason is multifaceted but the bottom line is they have an obligation to you, the system and the bureaucrats that oversee the legal process.


What You Say in Family Court Matters 


Your Attorney Expects Things of You

Most attorneys have objectives that go way beyond providing you with the best representation.  Of course it’s important that do their best to get you the results discussed.  But it doesn’t end there attorneys have ethical obligations, professional aspirations, track records to establish & maintain, etc.  So if they anticipate anyone or anything that will interfere with these, they might think twice.  In plain English, you have a responsibility to your lawyer too.

At the top of the list is honesty, you owe it to yourself and your case to be honest with your family law attorney. If you can’t be candid with your divorce or family law attorney then you can’t be trusted. Your divorce attorney has the fate of your future in their hands so it’s imperative that you tell the truth about everything that matters. Cooperation is next, you must be willing and able to work as a team with your lawyer to see favorable results.  Communication is also important, keeping the lawyer in the loop with what is going on helps them to prepare for the necessary next steps.

Meeting in the Middle

To get the help you need you need to understand what your rights are but also what your responsibilities are too. It’s extremely important to find the right lawyer for your situation, there’s no doubt about that. However, you put all responsibility on the lawyer, you must do your part too.  It is prudent for you to have a clear discussion about the expectations, the process, the outcome, etc.  Although this discussion should be had very early in the attorney-client relationship, all is not lost if it happens any time after.  The point is, be upfront, ask questions, be clear, be cooperative.

In conclusion

How your divorce or custody case proceeds in court is up to you. Don’t be so quick to blame your lawyer for what goes “wrong” in your case. Before you “hate” or badmouth them for what they are not doing, ask yourself if you did your part.  It takes teamwork to get through these sort of situations.

family court matters

What You Say in Family Court Matters?

Nowadays there is hardly any distinct lines between what is acceptable language in the courtroom and what is not. Judges are learning slang or urban terms, lawyers speak in colloquialisms and litigants say whatever comes to mind. However, the terminology you use can make a difference in how you are perceived, how you are treated and ultimately, how the judge rules in your case.


Grandparents Rights to Visitation & Custody 


Legal Language Defined

Legalese, or formal legal language, is so nuanced that no one expects the average layperson to familiarize themselves with it for family court matters. In fact, it’s usually only used only in writing, but is not unheard of to hear it being spoken by jurists. Legalese consists of legal phrases and terms that serve a purpose. Lawyers use legalese to help persuade its audience or to help predict an outcome in a case. Some use the term “legal jargon” interchangeably.

Legal terminology, on the other hand, is much more commonplace with help of the internet and it’s accessibility. Legal terminology is more broad in its use, which means it’s a matter of replacing a common word with a legal one. For example, in court you may hear the judge refer to the next court date as an “adjournment” or when there is conversation at the bench as “off the record”.

The Impact of the Use of Some Concepts

In the past five years, certain terms have been used profusely in divorce and child custody cases in Family Court. And even though they are commonly used and often understood, using them to assert or defend your case requires discernment. Terms like, narcissist, parental alienation, high conflict, etc. should be used strategically in your case.

Let’s look at the term narcissists first. This is an actual classification in the DSM-5. The Mayo Clinic defines as “a mental condition in which a person has an inflated sense of their own importance, a deep need for excessive attention and admiration, troubled relationships, and a lack of empathy for others”. However, overuse or misuse of this term can render negative results in Family Court. Family Court judges are not necessarily trained in mental health but are forced to make rulings on cases where mental illness is prevalent. They have to deal with the most complex set of issues in the shortest amount of time. It seems prudent to accept any insight with respect to mental illness but they don’t. Having a litigant self diagnose their ex or STBX can ruffle the judge’s feather. In fact, it can actually backfire on you.

Same thing with any toxic personality disorders, like borderline personality disorder, judges are not in favor of giving credibility to anyone giving a psychological diagnosis when they are unqualified to so. Furthermore, they are not oblivious to the unfair advantage it may give the diagnosing party.

Next, with respect to parental alienation there is more of a stigma associated with the term which warrants more careful consideration. Parental alienation, as defined by Amy J. L. Baker, PhD, is “children being encouraged by one parent, the favored parent, to unjustly reject the other parent, the targeted parent”. Dr. Baker lists 17 strategies typically used by the alienating parent, which are grouped into five categories. (Go here to read more www.amyjbaker.com)

Historically, judges in family court matters refused to believe or accept the notion that parental alienation was a real phenomenon with actual deleterious effects. Recently, though, more judges are becoming informed about the concept and its impact on children. Again, however, judges are aware of the fact that some parents misuse the term. Some parents, whether for or against the syndrome, abuse the use of the term to justify their actions or inactions. This only puts judges in a position tougher than usual.

What Should You Say

For starters, you should always stick to the facts, this means the facts from your perspective not anyone else’s. If you do not have direct knowledge of a diagnosis or concept then you should not assert it. Next, be very detailed in explaining the impact of your ex’s or STBX’s behavior on your child(ren). Describe what you observe with respect to behavior, moods, etc. And last, answer questions asked by the court directly not volunteering things you read somewhere or heard on YouTube videos.

To Sum it All Up

You should be familiar with some common concepts of course but that’s the extent. Even though there may be some validity to the phrases, concepts, etc. if you have no intentions on actually calling an expert as a witness, be strategic.

pro se divorce

Pro Se Divorce or Pro Se Child Custody – Which is better?

Attorneys, judges, legal personnel all think pro se divorce or pro se child custody litigants are insane. Even with Uncontested Divorce, they believe that taking the risk of botching the child custody or child support terms is too high. For those of you who need clarity, a pro se litigant is:

“someone who argues his/her own case in a lawsuit, rather than having a lawyer represent him/her and do the legal work for him/her. “Pro se” is Latin for ‘on behalf of oneself’.”

Why Pro Se?

Now that you know what the “professionals” think about you handling your divorce or child custody case pro se, let’s explore if YOU should. There are several reasons why people choose to represent themselves. First, the cost of divorce can bankrupt you really quick. I spoke with women who said that they have spent upwards of $200,000 in legal fees for their divorce. Yes….you read that correctly. When you factor in the cost of financial experts, guardian ad litem fees, etc. it is conceivable. Next, the emotional toll many people endure is enough to lead them to the pro se route. And let’s be honest, the fisticuffs come out blazing when allegations of abuse, disputes over money and battles over custody arise. Last, the need to get it over with so that one or both parties can move on in their lives. That usually means moving onto a new relationship, journey or lifestyle. 


Will the Court Award Sole Custody 


Is Pro Se for You?

The question still remains though, is pro se representation advantageous for you? Every situation is different so don’t be influenced by your neighbors’ story. You must look at every single detail of your circumstances from a strategic standpoint. Yes the law is significant too but strategy is key. That means looking at how the law applies to your strengths as well as your weaknesses of your case. In addition, you must weigh the strengths and weaknesses of your ex’s or soon to be ex’s case and analyze them together.

In instances where there are no children and/or no property, pro se divorce or pro se child custody is often a no brainer. However, when there are children then you must examine the ramifications of any potential custody agreements and how it will affect child support. The same with respect to assets or liabilities, you must consider the possible outcomes of any split or distribution. Knowing the law is not all there is to it, you must know the exceptions too. 

 

Let’s look at some scenarios:

Scenario #1: Mr. & Mrs. X are going through a split and they both want sole custody.  Neither of them have issues with being “fit” or “unfit” so the decision will come down to several factors but one factor takes precedence. If they reside in a “presumed” joint custody state, where the courts will assume that joint custody is in the best interests of the child, then fighting for sole custody will inevitably require a trial. Not a good idea to try this without the help of experienced legal professionals. 

Scenario #2: Mr. & Mrs. Z, Mrs. Z was a stay at home mom for 10 years while Mr. Z worked full time and provided for the family during that time. Mrs. Z is asking for joint custody with a parenting arrangement that fits both parties’ schedules, child support (based on their state’s statutory guidelines) and a split of the proceeds of the marital home. Although this may seem impossible to many, this scenario has the potential to be resolved amicably amongst the parties.  

 

The Possible Consequences

No matter how well prepared you are, how skilled you are at presenting your case or how knowledgeable you are with the laws, there’s a very good chance that your case will lead to nefarious consequences. Why? Simply because you are not an attorney. 

Pro se litigants generally turn the courts off because they have low and negative expectations of pro se litigants. As a result, courts often just put up mental and emotional barriers at the very mention of “pro se litigant”. Right, wrong or indifferent, this is the reality. What happens though is that they focus more on the “wrongs” so much that they overlook the merits of the case.

Not to mention, if your court renders an unfavorable decision or order on your case in your pro se action, you are stuck with if for the most part.  Your only recourse is an appeal, which is very expensive and time-consuming.

 

What are your options?

So with the explosion of legal resources on the internet everyone thinks they can handle any legal matter on their own. There might be some credence to this thinking but you must still choose wisely. There are great options available to help pro se litigants now. Some of these include divorce consultants-strategists (like myself); document preparers (we offer these as well), paralegal support services, etc. Even though these options are widely available now, you should still use discernment.  Other viable options are your state’s free resources, nonprofit organizations like Legal Aid and limited service attorneys to name a few.  Whatever option you decide on, it is crucial to understand exactly what you might be risking in the process. 

 

In summary

The bottom line is this, being pro se is not an automatic catastrophe, just don’t rush to decide. Do your research. Get consultations. Make a fully informed decision.

Sole Custody

 

Will the Court Award Sole Custody

In today’s world, there is a lot of confusion about the different forms of custody. We have all heard of the joint custody, some custody and full custody. However, what many are not aware of is that there are two major basis for any custody, that is physical and legal custody.  Physical custody refers to the residence of the child, while legal custody is the decision-making authority the parents have.  These can be either one or a combination of both of them.

 

Types of Custody

Joint custody shared or 50/50 are used interchangeably but differ in application. Joint custody can be granted with respect to physical and/or legal custody. Shared custody, on the other hand, usually only applies to physical custody where the parents split time equally. 50/50 custody, is not a legal concept but is used in place of joint or shared custody, especially where physical custody is split equally.

Full custody or sole custody are also often used interchangeably. The difference between these two being based more on the circumstances of the parties. Full custody is usually “presumed” in situations where custody has not been established by the courts.  This means that the parent that physically has the child has custody until the court decides otherwise. Sole custody, is a legal concept determined by the court. A parent who has sole custody has 100% decision-making authority and physical custody. The other parent typically has no contact or some visitation or parenting time with the child in some custody scenarios.


Change to Child Custody Arrangements during Covid 


The Courts’ Position on Sole Custody

Most states are moving toward a “presumption” of joint or shared custody, presuming that these arrangements are in the best interests of the child.

Judges are moving away from awarding sole custody to one parent even in cases where the “fitness” of the other parent is questionable. These days the court will only award sole custody when there is clear evidence of specific abuse, neglect or abandonment. The specific bases for ordering sole custody are in situations of abuse, neglect, abandonment, incarceration, mental illness, or relocation. If any of these are proven the judge presumes that the noncustodial parent is “unfit” or that the other parent is more “fit” to parent the child(ren). The courts will justify rulings that allows both parents to play an important role in their children’s lives as opposed to limiting involvement.

A parent can be awarded sole physical custody (which is the same as primary custody). If that is the case. the parties will often share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In these situations, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule.

Conversely, a parent whose awarded sole legal custody can still be directed to split physical custody with the other parent. The variation in these scenarios depends mainly on each state’s laws regarding custody.

 

Making a Case for Sole Custody

It’s one thing to allege the basis for sole custody, it’s entirely different to prove it.  Unless sole custody is agreed to by both parents, which is how sole custody is normally granted, proving it in court is no easy task. Of course, some grounds for sole custody are more obvious than others, a trial is still often necessary.  The extent to which the petitioner must provide proof or evidence of the grounds depends on other factors as well.  For instance, in a case of abandonment, which is defined differently in each state, mere absence from the child’s life may warrant further explanation as to why.

So, when making your case, it is prudent on the petitioner to understand the legal concepts and how they are proven in court.  Getting a handle on your state’s “tendency” to rule one way or the other requires diligence.  In fact, it is advisable to work with an experienced professional who can help you with the nuances of this area.   Additionally, custody trials can be awfully expensive, extremely time consuming and mentally & emotionally draining.

 

Alternatives to Sole Custody

A viable alternative to sole legal custody can be as simple as choosing specific language in the court order or agreement.  Including phrases such as “ X parent has final decision-making”;  “both parents are to decide on educational, medical and social issues jointly. In the event the parties are unable to agree, X parent has the final say”; “X parent has the authority to make decisions with respect to educational, medical and social issues when the child is in their home” and similar verbiage.  The beauty of negotiating with a mediator, amongst yourselves or with lawyers present is that almost any of these goes.  If the court is forced to decide, then the chances of bypassing sole custody this way is gone.

 

Conclusion

In sum, if you are determined to get sole custody then you need to start preparing for it way in advance.  The more you know, the more you prepare, the more help you get the more likely you are to succeed.

 

Written by Tracey Bee

Feel free to schedule a free 15-minute consultation to discuss your child custody case. 

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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

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

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.


Most cases in court starts with the filing of a Petition or Complaint by the person who wishes to sue another. Child custody or divorce matter are no different, the initial document is the document that gets the case started. Either party, husband or wife, mother or father, can initiate the case based on their respective objectives.

The question often arises, “should I file first or should I wait until the other party is motivated to file?”  I wanted to address the pros and cons of proceeding either way, even though there is very little irreparable harm to the case if either option is exercised.


Contact The Divorce Coach for you Child Custody or Divorce Matters


Starting the case as the wife or mother in your case may be advantageous for several reasons. Let’s at it from a strategic perspective:  When you are the one filing for divorce you get to choose the legal grounds for the divorce. Depending on the state you are located in or the state you are filing in, choosing the grounds for your divorce may require “fault”. Although most states have some form of “no-fault” as legal grounds, some states’ variations of fault are not the easiest grounds to prove. For example, in Hawaii the parties are to remain separated for a period of at least 2 years to be able to choose “no fault” as their basis.  On the other hand, the petitioner can choose to forego “no fault” grounds based on the facts of their particular case.  Doing this can serve as a strategic tool when negotiation efforts get under way.  For instance, a wife may sue for divorce on the grounds of adultery, explicitly stating all the details of her spouse’s infidelity. The fact that his indiscretions are now open to public view & scrutiny may incentivize him to do whatever it takes to either have this changed to a different grounds or to have the case settled quickly to avoid public humiliation.

Next, the Petitioner gets to choose the jurisdiction to handle the divorce. In some instances, more than one state has the legal authority to “hear” the case based on the parties’ state of residence, the location of the commission of the acts that give rise to the case, or some other association the parties might have to the jurisdiction.

You can prepare more in advance since your ex or soon to be ex may be clueless of the impending filing & thus be unprepared for the case. If you are convinced that divorce is the route you want to take then you could and should start to gather relevant information, documents, etc.. In addition, you should start searching for family law attorneys who can represent you if the circumstances of your divorce or child custody case warrants it.  If you meet with the most reputable attorneys for consultations, be sure to keep track of who they are and advise them to do the same so that you limit their availability to your ex or soon to be ex for representation.

I understand that a lack of resources may leave the party with no choice, forcing them to be the Respondent in the case.  However, the answer to that problem may be a counterclaim or a motion to dismiss their petition.  Whether or not either action is warranted should be determined with the assistance of your family law attorney.