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.