A Child Custody case can be a parent's worst nightmare. These types of cases are typically the most contentious in the family law realm. The Court's goal is to enter a final parenting plan that serves the best interests of the child; however, parents usually have very differing opinions as to what that means.
Residential Time:
A parenting plan includes a school schedule, summer schedule, and a holiday schedule. These schedules spell out exactly when each parent will have residential time with the child. A skilled attorney can help you craft your plan to make the exchanges and residential time plain and clear, as frequently, some parents may utilize vagueness or ambiguity in the plan to introduce conflict. Additionally, a family law attorney can help give you a realistic idea of what type of plan a judge would order if the other parent is being unreasonable with his/her requests.
Decision-Making:
A final parenting plan also includes a provision outlining who gets to make certain major decision that will greatly impact the child's life. These decisions can include, but are not limited to: (1) where daycare or extended care; (2) school; (3) extracurricular activities & summer camps; and (4) non-emergency health care. This may not seem significant; however, it may actually be the most important part of the plan. For example, what if Parent A wants the child to be home-schooled and Parent B wants the child to enroll in the public school? If the parenting plan says that only Parent A has decision-making authority for education, then the child will be home-schooled. If both parents have decision-making authority for education, then they may have to go to mediation or arbitration before they can go to the Court and ask a judicial to make the decision.
191 Restrictions:
"191 Restrictions" are the provisions that can truly limit a parent's access to his/her child. A "191 Restriction" means that the Court has found that you have committed any of the following:
- Abandonment;
- Neglect;
- Child Abuse;
- Domestic Violence;
- Assault (Physical, Sexual, or Emotional)
- Sex Offense;
- Emotional or Physical Problem
- Substance Abuse;
- Lack of Emotional Ties;
- Abusive Use of Conflict;
- Withholding the Child
Either parent may accuse the other of any of these 191 restrictions. A 191 restriction may result in the accused parent having no decision-making authority and receiving limited residential time. If the 191 restriction is severe enough, the Court may order that a parent only have professionally supervised visits with the child. Additionally, the Court could require that the parent undergo services such as treatment for domestic violence, mental health, and/or substance abuse. In addition, the Court could require a parent to submit to random urinary analysis tests at the request of the other parent and require monthly compliance reports. If you are already in a custody case where you have been accused of a 191 restriction, you should immediately seek legal representation
Case Progression:
- Petition: To get the divorce process started, a petition needs to filed. The person who files the Petition is known as the "Petitioner" and the person who responds to the Petition is known as the "Respondent." It is essential to file the Petition in the correct court; failure to do so may lead to a dismissal. Along with the Petition, the Petitioner must also file a summons, confidential information form, and vital statistics form. Once these documents are filed, a case number will be assigned. The Petitioner needs to ensure that the Respondent is personally served with the summons and petition. If personal service is not a possibility, other remedies can be pursued.
- Case Schedule: Once a case is filed and served, the Court will issue a case schedule which includes a trial date. The trial day is usually set at least one year after from the date of filing. This does not mean that the parties' have to wait a year before a final parenting plan can be entered. The parents can file agreed orders anytime before trial. It is very important for each party to abide by the case schedule; failure to do so may lead to a dismissal or default judgment.
- Response to the Petition: the Respondent needs to file their Response for a Parenting Plan and/or Child Support within twenty days of being served. The timeline is prolonged if the Respondent resides and is served out-of-state. If the Respondent does not file his/her response, then the Petitioner can ask for Default. Default essentially means that they are telling the Court that the Respondent is not interested in participating in the case; therefore, the Court should grant everything that the Petitioner has requested in his/her Petition. This can obviously have huge implications if a parenting plan or child support are at issue.
- Temporary Motion Hearing: many people will need to have a motion hearing to decide what should happen while the case is awaiting trial. A party may need the court to decide: (a) a temporary parenting plan; (b) a temporary child support order, (c) whether a restraining order or protection order should be implemented; and/or (d) whether a court-appointed investigator should be appointed. These orders are usually in place for one year, but can be amended if there is a substantial change in circumstances. The temporary motion hearing is very important and carries a lot of weight at the trial.
- Discovery: before a case goes to trial or settles through agreement, typically both parties need to conduct his/her own investigation, known as "discovery." Proper discovery methods can ensure that you find all of the other side's hidden skeletons in order to ensure that the court has all the facts needed to keep your child safe. The typical discovery mechanisms include: Interrogatories and Requests for Production, Depositions, Subpoenas to Banks; however, sometimes, parties will retain experts. In a child custody case, one of the best discovery mechanisms is to ask the Court to appoint a Guardian Ad Litem. A Guardian Ad Litem serves the children and is required to investigate both parents, interview the child (if age appropriate), and recommend a final residential schedule to the Court.
- Mediation: Both sides are required to attend mediation before a case can go to trial. There are exceptions for some domestic violence relationships. Most family law cases resolve outside of the courtroom, so it is very important to attend a mediation fully prepared and to understand when to walk away if you cannot reach an agreement.
- Trial: If all else fails, then the parties will go to trial. Trial does not just mean that you walk into a courtroom and tell your story; you have to provide trial briefs, statements of evidence, opening statements, and working copies to the court which contain all of your exhibits. You will need to ensure that your witnesses are lined up and that you can present your case in a logical and chronological fashion so that the judicial officer can follow along. However, there are also certain nuances that may seem overwhelming to some people, such as the rules of evidence, objections, examining witnesses, and introducing evidence and exhibits. While you absolutely have the right to represent yourself at trial; you will frequently hear judges repeatedly ask said individual if they want to proceed unrepresented. The best practice is to find a lawyer who will present your best case.
If you need assistance with a child custody case, please contact Malone Legal or call us at 425-361-0687 for a consultation.
