Good day in a Custody Trial

In the last two weeks, the attorneys in our firm have had some good results in three custody trials. A few weeks ago, our client fell to the floor outside the courtroom crying from happiness. She had been awarded custody in a modification after a three year long process of being a non custodial parent with a long distance plan.

When starting a case involving children, we really try to understand our clients and understand their perspective. We want to know the big picture of what has been going on in their families with their children.  We represent both women and men.  In most cases, I tell my clients that the word “custody” is not so important  What is important is how much time you spend with your child.  What is the parenting plan that best maximizes both parents’ time with their children and keeps the children feeling supported and loved by both parents.  We represent amazing parents.  Sometimes our parents are struggling in their relationship with one or more of their children, and we try to help with support and plans of action to make it better.

How do we prepare for a custody trial?

We try to tell our client’s story.  We try to paint a picture for the Judge of the parenting that occured during the marriage that would support our client getting custody.  One of the major factors is who was the primary parent?  This was one of the major issues in the trial I had last week.  Both parents were claiming that they were the primary parent.  One parent worked, and one parent stayed at home.  However, in that case it was not so easy to determine.  We were able to show that the parent who worked, worked a part time schedule around her young child.  We were able to show that she was still the one who found schools, doctors, and set up play dates.  The working parent packed all the lunches and laid out the clothes in the morning.  We painted a picture of the life of a working parent who was still the primary parent.

In another case, we showed that even though our parent was not the primary parent, that the primary parent was failing the child in significant ways.  School was being missed, grades were dropping and the child was moving around from home to home and school to school, creating instablity.  In a modification of custody case, the parent seeking to modify has not been the primary parent for a time period.  We would then need to prove to the court that a change needs to occur becuase the child is not succeding where she is.

Preparing trial testimony

We prepare our client’s testimony for trial.  We sit down with him and go over the questions we will be asking.  Sometimes we listen to the answer and talk about how to rephrase it.  We also usually have to discuss speeding up the testimony.  Court time is very dear.  Judges want you to move quickly.  We ask our clients to give us witnesses who we can call to determine if their testimony would help our client in trial.  We usually want unbiased witnesses.  This means non family members and best friends.  We prepare our witnesses to come in person to testify on behalf of our clients.  Witnesses mostly don’t want to testify.  They don’t like saying negative things in front of the other party.  It take a great deal of strength and caring for a witness to be willing to come to court.  We also prepare a trial memorandum which prepares the Judge for our presentation.  We tell the whole story in a capsulized version in the trial memorandum.  We then present all the evidence at trial to prove the memorandum.

A custody trial is never a sure thing.  Usually we are able to settle our case and come up with a sharing plan where both parents have significant time to parent their children.  In long distance cases though, that is really hard to do.  We always ask our clients to support the other parent (unless there are real reasons why that is not possible.) One of the other factors that a Judge must consider when awarding custody is which parent is most likely to facilitate a relationship with the children and the other parent.  Coaching our client to volunteer time to the other parent, to reach out with phone calls from the children, and to be supportive and flexible, is one way we can  help our clients do well in their custody trial. For more information, listen to my podcast on custody.


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