What Do You Need To Know Before You Go To Court For Custody

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child custody, child custody evaluations, child psychology, Children, family law, Krusch & Sellers

By: Leigh B. Sellers, NC Board Certified Specialist in Family Law

Licensed in North and South Carolina

When parents of a child (or children) are not together as a couple anymore, there can be a lot of conflict about the roles each will play in the child’s life.  Who will make decisions?  How much time will each share with the child? How will the costs of raising the child be divided.  In my experience, parents try very hard to get on the same page.  Few people want to go to court.  Few people want to spend time or money on a lawsuit or an attorney.  But all it takes is one person to file a lawsuit and the other person is in Court whether they want to be or not.   And often, people file a suit without really understanding what they are starting. There is no formula to solve a disagreement over a child.  If you find yourself facing a conflict over a child there are a few things that you will need to understand as you move forward.

Know your Judge:  It is important if you have a Court case to know everything about your Judge’s work in the Courtroom.  Knowing the Judge’s experience or any tendencies they have established is important.  Some judge’s speak at legal education classes and seminars.  See what they have said and believe it.  You need to know if your Judge tends to rule in a manner contrary to what you are hoping for, you will need to work harder to convince her that what you want is best for YOUR child.  All judges will follow the law AND the evidence.   You want to make sure you are able to convince the Judge.  But you also need to understand if you are fighting an uphill battle. An experienced attorney can help you with this.

The Studies are no help: Studies published about custody splits are completely contradictory as to what parenting plan works best for children when their parents are separated from one another.  One study will propose a primary parent.  Another one claims that joint and equal time with both parents is best.  And the Judge’s are subjected to all of the studies during various trainings and seminars. You don’t know what their individual biases are or what their understanding of the research is.  Everyone hears and filters information through their own respective experiences.  Judges are no different.   So it doesn’t help to rely on one study from a journal over another one in developing your position.

Things will be different:  No matter what, things will be different than you expect.  They will be different from what you hoped.  They will be different from what you want.  And they will be different from what you knew.  Be prepared.  A custody hearing is a place where people try to argue that what they think is best for their child should be the ruling of the Court.    But often, the Court hears and sees something different from what either parent presents as evidence.  And they rule based on the facts that they find.

Focus on the Child and Not on the Parent.   Your thought processes can drift to comparing yourself and the other parent.  But the Judge wants to know about your child.  And they want to know how you take care of this child’s needs and how you plan to work with the other parent.  So stay focused on your child.  Both parents will say that they want what is best for their child.  And both usually appear to mean it.  But the parent who is able to best identify the child’s needs and how they and the other parent can meet the needs is in a better position of convincing the Judge.  So know why things have been handled a certain way with your child prior to separating from the other parent.   You and the other parent have divided “jobs” related to the child while together.  You need to understand and be able to explain why you two made the choices that you did in order to advocate for why it needs to be the same or different moving forward.  The Judge’s often assume that any parent can make a doctor’s appointment or prepare a meal.  The fact that one never did before separation should not be proof that they cannot do so going forward. Don’t become so distracted by criticizing the other parent that you forget to concentrate on the child.  No one “wins” custody by only proving the other parent makes a lot of mistakes.

Be well armed: Arm yourself with a good attorney and a good child expert.    A skilled and knowledgeable attorney is very important in making decisions as you prepare for custody.  The earlier you get good advice the better your case will proceed.  Ask around and investigate the experience level of the attorney you choose to see.  If you don’t feel comfortable, interview more attorneys.  Most charge a consultation fee but it is well worth it.  A wrong choice can affect your case more than you would believe. Judges are pretty good at seeing when parents are parenting for litigation.  A skilled attorney will help you assess your expectations, your goals and your case.  The child expert isn’t for your child, but for you.  An expert in childhood behaviors during development and divorce can help you handle the changes that your child is experiencing and help discern what is normal behavior and what appears to be influenced by the parental conflict over the child.  Your custody case is your only case.  But a Judge sees hundreds a month.  So behavior you may think is horrific, they may not see as quite so horrible.

Do not assume your Child will “tell the Judge”.  It is best to insulate children from the conflict between parents if possible.  Don’t assume a child of any age will actually tell a Judge what you think they will say. Court is overwhelming and adults have a hard time testifying consist with their prior out of court statements.  Children are no different.  Very rarely is the testimony of a child a determining factor.  And there is no age where a child picks where they will live in North Carolina.  Their age is simply a factor the Judge will consider when the Judge weighs the child’s testimony.

Exhaust all other options before trial: The best trial strategy is often to avoid a trial all together.  Asking a stranger to decide what is best for your child based on what information you can present in the artificial atmosphere of a courtroom is rarely a good idea.  And after people say the things that they think they need to say to beat the other parent, they can’t take it back.  Those words hang in the air whenever the parents have to exchange the child, or attend a conference together or cheer the child on the sidelines.  Rarely, if ever, is a parent relationship stronger after a custody fight.  As bad as it may seem, it will be worse after court whether you “win” or loose”. In Mecklenburg and Union counties, the court system mandates mediation.  Be as prepared for that mediation session as you would be for any court hearing.

Read and understand any proposed Order very carefully:  Whether you settle a case before trial or you have a verdict from a Judge after a hearing, make sure you read and understand the Order very well.  Your behavior and relationship with the child and the other parent will be regulated by this document and you need to understand it.  Make sure you ask questions, preferably before a Judge signs it.

A custody battle is the scariest thing any of my clients face.  Make sure that you fully investigate all your rights and obligations before you head towards Court.

http://www.kruschlaw.com/bios/leigh-ballenger-sellers/

What is a Collaborative Divorce and How Can it Save Me Money?

By Leigh Sellers

A collaborative law divorce is a process that has gained significant popularity in many states across the country.  Collaborative divorce attorneys are trained in the collaborative process and must maintain proficiency by periodic trainings.  The approach is not the same as a traditional adversarial proceeding.

For as long as divorce has existed, many people have felt that the process of divorce is destructive and ill-suited for people who must remain in contact with one another to raise children or who have a very complicated situation that does not translate well into the framework of a courtroom. For people wishing to seek a less hostile divorce, or deal with sensitive issues, the collaborative process may be the answer.

In a collaborative divorce, the husband and wife each have their own collaborative law attorney to ensure each side is represented and knowledgeable about the legal aspects of the issues. But, unlike a traditional divorce that involves court filings which take extreme positions and list grievances, a collaborative divorce works by direct and open communication between husbands and wives.  Further, in a court proceeding, there is a very cumbersome and expensive process by which attorneys collect documentation and information to establish their case.  In Collaborative Law, attorneys and parties engage in an open exchange of ideas and information needed to resolve the matters.

In a collaborative divorce, husbands and wives meet together with their attorneys to collectively discuss issues of dispute with a goal of problem solving. To foster open disclosure and communication, and to avoid threats of litigation, both spouses are required to sign an agreement stating their intention to resolve all matters without going to trial.

If either spouse decides to take his or her case to court, each of the two attorneys must withdraw from further representation of the parties. As a result, the threat of trial is minimized and parties are dedicated to resolving disputes through mutual agreement.

So how does this save money?  The most expensive part of litigation is the cost of preparing specialized documents that must conform to a set of procedural and evidentiary rules.  The formal documents take time and in the legal world, time is money.

In litigation, there are also certain time lines set by law that will control the speed of certain steps of the process.  These timelines can drag the process out much longer than needed, and that means neither party is going to have their financial needs met timely or have a resolution needed on their personal timeline.  Litigation also requires court appearances.  The court sets these court dates with no regard to the participant’s obligations.  So court dates can cost you time away from work.  Further, the caseload of a busy county, like Mecklenburg, means that more cases are scheduled that the Court has time for on the given date.  So, your attorney might prepare for the case, and if there is no time, they have to refresh and prepare the next time it is scheduled.  This costs the parties more money in attorney fees.

Another cost of litigation comes by way of enforcing the order that a Judge ultimately enters.  No court order is perfect and I have never met anyone who is 100% satisfied with the result.  People are simply more compliant with a solution they had a part in crafting.  There are far fewer problems with agreements or consent orders that are reached as a result of collaborative work as opposed to solutions imposed on them.

There is a non-monetary cost to litigation, too.  There is no more destructive force on a family or relationships that contested litigation.  People suffer from stress.  Parties who are making decisions for the sole purpose of producing an outcome in court are not truly living their life. Going through litigation is like being held captive.  Nothing you do, say, spend or make, belongs to you alone anymore.  Nothing is private.  Nothing is above disclosure.   Divorce and separation is painful and stressful enough without choosing the most destructive legal process available.

For more information, visit the Collaborative Divorce website, http://mecklenburgcollaborative.org.

To see if Collaborative Divorce is right for you, contact a trained collaborative lawyer and discuss your situation.

SOME TIPS IF YOU ARE THINKING ABOUT SEPARATION OR DIVORCE

ADVICE FROM FAMILY AND FRIENDS

Your well-meaning family and friends may offer you advice about your case. Frequently such advice is not accurate. The facts surrounding your marriage, divorce, children and property are unique and different from any other case. The only thing your divorce and your cousin’s divorce may have in common is that you and your cousin are related to each other.

ONE ATTORNEY FOR BOTH OF YOU

If there ever was a conflict of interest, it has to be two people getting a divorce. An attorney cannot represent both parties in a divorce. If you and your spouse have agreed on everything, it may be possible for one person to do all the legal work, but they will represent only one of you.

JOINT ACCOUNTS AND DEBTS

If you can, close joint credit card accounts and terminate the accounts. While debts that are incurred by your spouse after separation may not be your responsibility from the standpoint of the court, the credit card issuer does not care about your separation; if you are on the card, you are generally liable to the issuer whether you approved the charge or not. You may want the company to reopen an account in your own name. This is a good time to request it.

If there is money in a joint account (checking, savings, credit union, money market, brokerage and the like), consider whether to withdraw some or all of it and put it in an account in your name alone. It is not illegal to do so. You will have to be the one to determine whether it is reasonable to withdraw some, half or all of it. Withdrawing it does not make it yours and you will have to account for its use; however, it is often easier to give money back than to get it back. If you are the breadwinner, do not put your  spouse or children in a position where they are without money to meet their needs. This will not help your case and you will most likely be required to pay for their expenses or reimburse them.

If you have a lot of debt, you need to take steps to correct this problem as soon as possible. There will be less money to go around after you and your spouse separate because you will be supporting two households on the income that previously only had to pay for one.

Generally speaking, debts incurred during the marriage for a marital purpose are marital debts, even if they are not in your name. That means that both of you are, at least for divorce purposes, responsible for the repayment of the debt

MEDICAL INSURANCE

If you cover your spouse or children on your insurance, do not drop them from the policy until you have an agreement or court order allowing you to do so. You could be responsible for their medical bills if you take action that makes them uninsured.

RECORDS AND RECEIPTS

It is very important that you keep records of payments you make or receive for alimony and child support as well as any voluntary support you are paying.  If you cannot prove you paid, you might as well have not paid it. If you are receiving payments, keep a running account in a safe place. If you cannot prove what you did receive, the court might not believe you when you testify about what you did not receive.

DOCUMENTS

If you have not done so already, start looking for documents which might be used to support your positions in negotiations or hearings. Check desk drawers, safety-deposit boxes, bank boxes or other places where documents might be hidden. This is a good time to visit with your family banker, stockbroker or accountant to discuss the family financial situation, although you may not want to tell them about the separation or divorce.

WILLS

You probably need a new will now. If you have a living will in which your ex-spouse has the right to tell the hospital to pull the plug and let you die, you may want that changed.

POWER OF ATTORNEY

If you have given your spouse power of attorney (the legal authority to act for you), get it back and cancel it.

SNOOPING

State and federal laws prohibit activities such as hacking into your spouse’s computer or email, installing spyware, recording telephone conversations to which you are not a party and listening to your spouse’s voice mail messages. In general, if the snooping activity seems like it should be illegal you should avoid it. Information that is obtained by unlawful means will not be admissible in court and could end up with you going to jail.

MEDIATION AND OTHER ALTERNATIVES TO TRIAL

Before going to the ultimate test of a trial, there are alternatives.

Mediation is negotiations with a neutral party assisting the negotiations. The mediator is not an advocate for either spouse. The mediator facilitates the process and does not take sides or make decisions for you. They merely facilitate settlement. Mediation is required in almost all cases involving an initial custody determination or a modification of custody and in most cases dealing with equitable distribution.

In arbitration, the arbitrator makes a final decision. This is like a judge, but you must pay the arbitrator and you are bound by the decision.

Tax Court Rules Divorce Does Not Terminate Stepparent-Child Relationship

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Alan Krusch, Attorneys, Charlotte, David Krusch, Dependency Exemptions, family law, IRS, Krusch & Sellers, North Carolina

The United States Tax Court recently held that divorce does not cut off a stepparent’s relationship with their stepchildren, at least for the purposes of receiving the dependency exemption on their annual tax returns.  The dependency exemption is a frequently-litigated issue when spouses with children become separated or divorced, and it is noteworthy that the Tax Court held that the parent-child relationship does not terminate for stepparents even after divorce or even death.  Read more here.

Study Shows Judges With Daughters Side More With Women

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Alan Krusch, Attorneys, Charlotte, child custody, Daughters, David Krusch, family law, Judges, North Carolina

According to a new study from Harvard University, judges who have daughters for children more likely to vote in favor of women’s rights than ones with only sons.  Professor Maya Sen states that “by having at least one daughter, judges learn about what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.”  This study could implicate how judges who have daughters make custody determinations in child custody cases, or in other areas of family law.  Professor Sen observes that “Justices and judges aren’t machines. They are human, just like you and me. And just like you and me, they have personal experiences that affect how they view the world.” Read more about the study here.

North Carolina Family Court Saved, But Budget Slashed By $1M

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Alan Krusch, Attorneys, Charlotte, David Krusch, Family Court, family law, Mecklenburg County, North Carolina

According to the Raleigh News and Observer: “Against the objections of Republicans leaders, other changes to the budget included: restoring family court, which was eliminated in the House budget…”

The family court system, which operates in only 13 of North Carolina’s 100 counties, was on track to be completely defunded in the newest draft of the state budget, but a last minute amendment saved the program. However, family court’s statewide budget allocation has been cut significantly from $2.9 million to $1.9 million for the 2014-2015 fiscal year, leaving many to wonder about how the program can continue to effectively and efficiently move domestic cases through the litigation process.

Read more here: http://www.newsobserver.com/2014/06/11/3928962/house-budget-moves-to-full-vote.html#storylink=cpy

North Carolina Might Eliminate Funding For Family Courts

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Attorneys, Charlotte, David Krusch, Divorce, Family Court, family law, Krusch & Sellers, Legislature, North Carolina

In a new draft of the state budget for 2014-2015, the North Carolina House of Representatives has proposed cutting nearly $3 million allocated for family court districts across the state (see page 124).  If this budget passes, what would this mean?  It could mean a delay (or outright denial) of justice for people litigating their divorce, child custody, property division, and other family-related cases.

Looking at the statistics that prove the efficiency of family courts, only 18.8% of cases in family court districts lasted longer than a year, compared to 51.0% of cases in non-family court districts.  The median age of pending cases was 116 days for family court districts, while the median age for cases in non-family court districts was 390 days.  In short, the approval of this budget could prove disastrous to litigants across North Carolina, especially since the majority of family court cases involve unrepresented parties.

What Happens When Grandparents Divorce?

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Alan Krusch, Attorneys, Charlotte, David Krusch, Divorce, Grandchildren, Gray Divorce, Krusch & Sellers, North Carolina

We’ve previously posted articles about the growing trend of gray divorce, or getting divorced later in life.  Much has been written about how people begin the process of disentangling themselves from their spouse after marriages of over 30, 40, or even 50 years and above, especially in terms of how to divide property after such long marriages.  What hasn’t been written about in detail is the effect that gray divorce has on the family members – the adult children and grandchildren – of older spouses going through a separation or divorce.  Check out this article for more insight on this issue.

Has No-Fault Divorce Failed?

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Alan Krusch, Attorneys, Charlotte, David Krusch, Divorce, family law, Krusch & Sellers, Mecklenburg County, No-fault Divorce, North Carolina

North Carolina, like many other states across the country, is a no-fault divorce state. No-fault divorce means the dissolution of a marriage does not require a showing of wrongdoing by either party, and it was created to allow people to get divorced from each other without having to go through the time and expense of litigation.  North Carolina does require the parties to be separated from each other for at least 12 months with the intention that the separation be permanent.

But has no-fault divorce worked?  According to one critic, “No-fault divorce has been a disaster. Touted as the antidote to the animosity and high cost of family court litigation, it’s been anything but.” Read more here.

What Domestic Violence Looks Like

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Alan Krusch, Attorneys, Charlotte, David Krusch, DV, family law, Krusch & Sellers, Mecklenburg County, North Carolina

Many people know what domestic violence is, and how dangerous and harmful it is to families, especially to children.  Time.com presents a chilling visual portrayal of what domestic violence looks like in a new short narrative video, found here.