In your divorce or custody case, as in any other court case, you need to create a theory for your case. Judges have the difficult task of choosing which party to believe based on how they present their argument and case. This means that it is critically important for you to come up with a theory for your case that convinces the court to believe your side.
Creating a theory for your Family Court case is the starting point for establishing a persuasive argument to support your position as the more “fit” parent. The underlying test in any Family Court case is deciding which parent is more fit, or which parent is more likely to foster their child’s well-being. In other words, each parent must convince the judge that they are the one most capable of ensuring their child’s physical, emotional, and intellectual well-being. In that, having a theory essentially helps you to come up with a clear and convincing narrative that highlights why you believe you are in fact that parent and should have custody of your child or children.
The Theory Behind Having a Theory
Attorneys understand that practicing law is more about art than it is skill. They understand that the law itself is an amorphous concept that can be interpreted in several different ways based on one’s position. That’s why so many lawyers are covert creatives, they expand on that attribute when they are arguing their case.
Think about it, it’s the same law being argued the difference is the facts. So that means they are finagling the law to make it appear as if their set of facts fit best. The best way to ensure that you are able to do this successfully is by establishing a direct connection between the two.
Disadvantages of NOT Having a Theory
Lawyers know that they must have a theory if they want to have even a slight chance of “winning” their case. However, self-represented litigants often overlook or are unaware of how important this step is. Self-represented litigants tend to think that every single issue (every misstep, shortcoming, flaw, or fault) of the other parent needs to be addressed in court. This is furthest from the truth. The courts don’t have the time, nor the interest, in listening to people air all of their dirty laundry. Not to mention, one runs the risk of missing some of the most critical issues in their case when they do this. The law does have a place in Family Court cases and so narrowing down the facts to the ones that directly correlate to the law is a must.
Developing a Theory
Before you start working on creating your theory, keep these things in mind.
1. Understand the Law:
– Familiarize yourself with your state’s custody laws, or Best Interests of the Child standards, as much as you are able to. Although the standards are pretty straightforward, how they apply will vary based on your specific situation, amongst other things.
2. Gather Necessary Information:
– Start to collect all relevant documents and information related to your child’s well-being, including school records, medical and therapy records, and anything to show past child-rearing responsibilities.
– Start to document your involvement in your child’s life, such as attendance at school events, extracurricular activities, doctor’s appointments, and other significant milestones.
3. Identify Your Key Points:
– Use the BIOTC standards to determine the main reasons why you believe you should have custody of your child. Be sure to base your arguments on the specifics set out in the BIOTC, not just on what you believe to be the best reasons.
4. Establish a Strong Narrative:
– Practice creating a coherent and compelling narrative that explains why your custody request is in the child’s best interests. Be specific and tie in examples of specific situations or events wherever possible.
– Get ahead of and address any potential weaknesses in your case, such as past issues or concerns, in a transparent and constructive manner. Explain how you have addressed or plan to address these concerns.
5. Consider the Child’s Best Interests:
– Emphasize how your proposed custody arrangement will benefit the child. Courts typically prioritize the best interests of the child above all else, so be sure to focus on this aspect in your theory.
6. Support Your Claims with Adequate Evidence:
– Back up your narrative with concrete evidence, such as documents, photographs, witnesses, and expert testimonies. Be sure that your evidence directly relates to the key points of your theory.
7. Be Confident and Credible:
– Be sure that your case is airtight. Take time to address each phase of your case to ensure that you give each sufficient thought. Also, be sure that you’re able to back up your facts and that they align with the other party’s version of events.
8. Anticipate Counterarguments:
– Take a deep dive into the other party’s arguments and claims to prepare for them. Consider what arguments or evidence the other party might present based on prior complaints, their petitions, etc., and be prepared to counter these points effectively in your theory.
9. Consult with at Least One Qualified Attorney:
– It’s always strongly advised to consult with an experienced family law attorney in your jurisdiction. It is important to note that the attorney needs to be one who practices in your specific jurisdiction as they know local practices best. Although there are few offering free consultations these days, some will offer reduced-fee ones.
10. Understand the Family Court Process:
– Get familiar with how your particular court operates. Your Family Court case will depend greatly on your court’s process, who the judges are, how your case is heard, etc. Therefore, it is important to understand that your case theory should also incorporate how the court’s process will impact your argument. If you don’t have a case theory at the start of your case, no need to fret you have time. However, if your case is headed in the direction of court involvement, or better yet, trial, then you must absolutely take the time to work on a case theory. If you are a self-represented litigant going against a lawyer-represented opposing party, you are begging for disaster if you don’t have a theory. As I mentioned, lawyers know how incredibly important it is to create a theory so it would behoove you to do the same.