Custody Cases – What to ExpectDiscovery:  During the initial whirlwind of your divorce, you will hear phrases like “Rule 68”, “interrogatories”, “request for production of documents”, “income and expense” and “assets and debts”. You will be handed page after page of forms to fill out and suddenly your head is swimming. You are already overwhelmed with the fact that your marriage has ended and now you are being bombarded.  The best piece of advice I can give to you at this point is to breathe and not to panic.Rule 68 is a local rule that requires a mandatory exchange of paperwork in every divorce such as your income tax returns for the last three years and the most recent 6 paychecks. Rule 68 sets forth which documents must be exchanged and provides a time frame for when everything should be exchanged and/or answered.

The statement of income and expense form seeks information regarding your income, including withholding information, as well as your monthly expenses for yourself and any children that might be living with you. The statement of assets and debts seeks information about your assets such as cars, real property, certificates of deposits and your debts such as credit cards. On the assets portion, there is a place to list out household furnishings and a place for you to note who you believe should receive the items at the end of the divorce.  The best way to approach these two forms is to complete one section at a time without worrying about the rest of the document.

Separate from the Rule 68 are other forms of discovery. Interrogatories are a series of questions designed to elicit information specific to your case. The Request for Production of Documents is a series of questions which ask you to provide copies of items such as your bank statements or your mental or medical health records. Finally, Admissions are a series of questions that have either “admit” or “deny”. All three types of discovery need to be answered or objected to within 30 days.  This is especially true for Admissions. Failure to answer those particular set of questions within the necessary timeframes could result in the court believing that you have admitted all of the questions which could seriously damage and/or hinder your case.

Parent Education:  In cases involving children, you may be required to attend a parent education class. The purpose of the class is to “educate parents as to the possible detrimental effects of court actions on children and how to avoid these negative effects.” Depending upon the county, there may be deadlines to complete the class.

High Conflict:  In some counties, in highly contested cases, the parents may be ordered to attend an additional class that deals with high conflict. The end result of these classes is to help parents remember that while they are dealing with their own emotional trauma, they must be open to the fact that children experience their own emotional trauma during family law cases.

Alternative Dispute Resolution:  In Greene County the parties are ordered to attend ADR classes whereas in other counties the parties may be ordered to attend mediation.

Trial:  Unless your case ends in a settlement, then your case will go to trial. If you do not have counsel the judge may remind you that you will be held to the standard of an attorney and not given any special leeway because you are unrepresented. While you may be given some leeway, do not expect it. Even if you are represented by counsel being prepared for trial is as important for the client as it is for his/her attorney. Your attorney relies on your knowledge of the facts to prepare properly for trial. The days before trial, communication between the attorney and the client is even more important than at any other time.

On the day of trial, your appearance speaks volumes to the judge. You should be well groomed and well dressed. You should also be respectful of the judge and follow the bailiff’s instructions immediately. In smaller counties like Webster County, the bailiff is the judge’s only direct employee and in all courtrooms the bailiff is the judge’s first defense from angry participants.

In most courts, if they have not been handled already, the first course of business are pre-trial motions. These motions include limiting evidence, calling for “the rule” on witnesses (requiring non-party witnesses to sit outside until called for specifically) and an announcement of “ready for trial.” The judge will then probably ask whether a settlement has been reached or whether the parties want time to attempt to settle without trial. Parties can settle some issues and go to trial on the remaining unsettled issues.

Settlement:  In my office, settlement will be discussed repeatedly from the first consultation to the day of trial and sometimes even after trial but before a judgment is issued.  The parties themselves can talk to each other at any time and come to any agreement they wish, and our office always encourages it. Attorneys have an ethical and legal duty to present any and all settlements offered, even if it is absolutely detestable and the attorney feels completely confident his/her client will refuse it. That being said, clients who can settle are happier on a whole with the results than clients who leave it up to the judge in trial. If no settlement is forthcoming the attorneys will announce ready for trial.

Once trial has begun you will immediately recognize that it is an event bound by hundreds of rules. There are rules of evidence, rules of procedure, rules of decorum and many other miscellaneous rules. These rules often refer back to the original documents in the case, such as whether you asked for maintenance or attorneys fees in your Petition. If you did not ask for these items then opposing counsel will object if you request them at trial and the court will likely sustain the objection.

Other rules include what evidence can be admitted in trial. The most common type of evidence in custody cases is testimony of the parties which is otherwise known as “giving their side of the story.” It is crucial that you are both honest and perceived as being honest. The judge will weigh your credibility against your evidence and if you are not believable then your evidence will lose weight to the judge. This could decide your case. Being honest with your attorney is tantamount to him/her presenting your best case. ALWAYS provide your attorney with all the information requested, and even any other information that may not have been requested, in order for the attorney to be prepared if that information is presented at trial by the opposing party.

After trial is over the judge may make an immediate ruling and ask attorneys to prepare documents for his signature or take the case under advisement and ask the attorneys to prepare evidentiary arguments for his review. There are numerous post-trial motions that can extend a case but suffice it to say that most cases end at trial and the judge is prepared to enter judgment fairly quickly. The best statement I can make about trial is “whoever is best prepared usually wins.” An attorney needs the client’s full assistance to be prepared. Make yourself available, open up to your attorney, and give him/her everything he/she needs to present your case in the best light possible. And remember, throughout this whole process…breathe.