Child custody disputes are unsettling, emotionally draining and potentially very costly. For you as disputing parents, not to mention the children, it is so much better if you are able to reach a resolution between yourselves. So long as any decisions you make are not to the detriment of the children involved, the courts will usually be happy to go with what you decide.
One option to consider before exposing yourselves to the full icy blast of the Family Court is mediation. A trained mediator will work with you to attempt to reach a position that both of you are happy with. It is not the mediator’s role to make decisions for you; rather, he or she works with you to help you reach your own decisions.
If you cannot reach an agreement then you will have to involve the legal process. What follows are the stages that will generally be gone through in a custody dispute, although there may be variations from state to state.
Filing a Petition in The Family Court
The petitioning parent states why he or she should be granted custody of the child or children. If there is already a court order in place then the petition must state that there has been a change in circumstances. A change of circumstances would include instances of bad parenting or the child’s progress at school deteriorating.
Appearances in Court
An appearance is when you attend court and the judge questions you to determine various pieces of information. There may well be several appearances that occur before the hearing, or trial takes place. The hearing is where the dispute is resolved and a custody order is made. There is only one hearing.
At the first appearance, the judge may make a temporary custody order. The judge’s primary concern will be for the welfare of the child. With difficult cases there may be multiple appearances required. There are instances where parents have to attend weekly for several weeks in order for the complexities of the dispute to be settled.
The Law Guardian
In a custody case, the overriding priority for the court is to ensure that the best interests of the child are met. The Law Guardian is appointed to represent the child. Where the child is under fourteen, the Law Guardian will advise the court about what is in the child’s best interests, whilst at the same time attempting to give due weight to what the child wants. Where the child is fourteen or older, the Law Guardian will represent only the child’s views to the court.
This is possibly the single most important aspect of the custody dispute. Often as early as the second appearance before the court, the judge will canvass the parents’ views on obtaining a psychological evaluation. For the parent seeking custody, agreeing to obtain the evaluation will demonstrate a serious commitment to gaining custody.
It can take anything from one to two months to obtain an evaluation. The psychologist will want to talk with a range of people including the child, teachers and health care workers. The report is partially confidential simply because it will contain the views of multiple people.
Following The Psychological Report
At the first appearance following the report, the judge may adjourn to give parents time to take in the contents of the report. If the report is overwhelmingly negative to one of the parents, the judge may seek to put pressure on that parent to accept a resolution. Where things are less clear or where there is a Law Guardian report that is inconsistent with the psychological report the case may need to go to a hearing.
Prior to the hearing itself the judge will have allowed a period of time for disclosure, where the parties seek information from each other. This can take up to three months.A custody trial can last several days, sometimes up to as many as ten, not necessarily consecutive, days.
Finally the court will make a decision. The court can order sole custody, joint custody, divided custody or split custody.
Johngary is a professional family lawyer come blogger, during his free time he loves to write informative law & relationship related articles.