Procedure in a Child Custody Case

In the course of the high emotions of a custody battle in Family Court, I sometimes neglect to explain the entire procedure to a client. Therefore, I have prepared this form letter for you, the client, to review. This will give you references to the time frames and events on a procedural basis, which you can expect in your custody struggle.

The first step in any Family Court custody case is the filing of the petition. If there has never been any court intervention before, the petition merely needs to allege why the petitioning parent feels he or she would be the person better able to take care of the child or children. If there has been a previous order in the Family Court or in Supreme Court, the petition must allege some substantial change in circumstances which justifies the court going back and re-examining the issue of custody.

What are some examples of a change in circumstances justifying a Court’s re-examining of a custodial order? Some are obvious, such as the remarriage of a parent, or the introduction of a new adult into the household of the child. Sometimes a change of location where the parents have been living somewhat far apart, more than an hour away, and one parent then moves in close proximity to the custodial parent. Another example would be some clear indicia of poor parenting. Examples of this would be an arrest for the use of illegal drugs, an arrest for driving while intoxicated, or having a sustained finding of child abuse.

In addition, objective demonstrations of significant changes in the child would be enough. For example, if a child was a straight B student, and then suddenly began failing or if the child developed emotional problems. Please note that the change does have to be significant. Once thing which is usually not considered a change in circumstances, is the birth of a new child to the custodial parent’s family based upon a remarriage or a new relationship.

Once you file the petition with the appropriate allegations, there is a waiting period of approximately 3 to 4 weeks before the case is set down for its first return date. Generally speaking, when we discuss actual appearances by attorneys going to Family Court, we discuss the difference between “appearances” and “hearings.” Appearances are when you merely show up in court to discuss matters with the judge. There is no taking of testimony, and generally speaking, the clients do not say anything. Some of the time, the judge may ask a question or two of either client on a relevant point to the discussions, but generally the lawyers do all of the talking.

There is usually only one hearing or trial in any case. That is when witnesses testify, and in a custody case, is a protracted matter which may last anywhere from 3 or 4 to as much as 10 days.

On the first appearance, the judge will try to establish what has taken place in the past with the child and establish a temporary order of custody to make sure that the child is safe. On the first appearance, the judge’s most important consideration is making sure that the child is safe and that no radical changes are being imposed on the child, unless clearly warranted. There is a great deal of difference if the parties show up represented by attorneys on the first appearance date. In that event, both attorneys are supposed to discuss matters with each other and, if possible, the law guardian, and then report to the Court some reasonable temporary solution.

Most of the time that is what happens. Obviously, some of the time there is disagreement and the Judge must make a ruling.

The role of the law guardian is particularly important in any custody case. A law guardian is an attorney who has received specialized training in representing children. They are appointed at random and you have no control over who the law guardian appointed to your case will be.

The law guardian’s job is to represent the child. For a child under the age of 14, the law guardian has a dual responsibility, which is to represent what he thinks is in the child’s best interests, and also advise the Court and advocate for what the child “wants.” Balancing between what a 10-year-old, for example, wants, and what is best for them, is often a difficult question. It is important to understand that the law guardian has a difficult role to fill when he or she feels that what the child wants is different from what is in their best interests.

Once a child is 14, generally speaking, the law guardian’s responsibilities change and it becomes an issue of representing only what the child wants. Of course, the law guardian is free to express his or her opinions on why what the child wants is not in their best interests, and if they feel the child is being influenced by either parent.

As set forth above, at the first court appearance, especially if all parties have an attorney and the law guardian has been appointed, generally some kind of a temporary custodial order is negotiated. If it cannot be, the judge will issue a decision. Typically speaking, on the first appearance date, if there is a good deal of controversy about what is taking place, the judge will order the parents’ past customs to continue for a very brief adjournment period of 1 to 2 weeks. During that time, he will order that the law guardian speak to the children, (assuming they are over the age of 5), and do an investigation to find out what is happening with the family.

The law guardian’s role is pivotal. He or she is seen as an impartial advisor to the Court. Although, technically speaking, they are lawyers whose status before the Court is no different than mine or the attorney for the other parent, they are in fact seen as an impartial investigator who is looking only for the child’s best interests. For that reason, they have no incentive to criticize either the mother or father. If the judge knows the law guardian, the information provided to the judge by the law guardian will be of critical importance.

Assuming there is controversy at the second appearance, the judge will ask the law guardian about investigations that have been undertaken and what the law guardian has found out. He will give both attorneys a lengthy opportunity to discuss the matter and then make a decision about what the custodial arrangement will be followed for the length of the pre-trial proceedings until the trial.

At the first court appearance, and possibly the second, depending upon the controversy and whether or not the parties are represented, the judge’s second objective is to determine what the parties really want. For example, if the mother has primary physical custody, is the father petitioning to truly change custody to his favor, or is the father petitioning to make sure that his times of physical custody are not interfered with?

The more difficult the case, the more frequent the first few appearances will be and the closer in time they will be together. If there is a great deal of controversy, the judge will have the parents come back once a week for as many as four or five weeks in a row, soliciting opinions from the law guardian, from teachers, from mental health care professionals, and others to find out what is really going on.

At some point, usually after the second appearance, it is clear what each side wants and what each parent is seeking. By the second appearance the judge will know if there needs to be continual supervision to enforce a particular order of custody, or if there is truly going to be a challenge to the present custodial arrangement which would mean a potential trial.

Therefore, usually no later than the second appearance, the judge will inquire as to what each person’s thoughts are concerning having a psychological evaluation. This would be a true sign for the non-custodial parent that they are making a serious commitment to seeking custody. The cost of the evaluation is normally something borne by the parent who is seeking to change the custodial arrangement. If there is no existing court order, usually the cost is split by the parents in proportion to their incomes. The cost of the psychological evaluation, depending upon the number of children, parents, new spouses, and others in the parties’ households, would be in the range of $2,000.00 to $4,000.00 depending upon the reputation of the psychologist. Generally speaking, these are done by clinical psychologists, although they can be performed by any mental health care professional either appointed by the court or agreed to by the two parties. Therefore, sometimes it is done by social workers, and in rare cases a psychiatrist might even perform the evaluation.

Because there are relatively few quality psychologists in the area performing this kind of work, most of the time there is a stipulation reached on whom the psychologist will be by the two attorneys. The condition of the stipulation on the part of the custodial parent is that the non-custodial parent will pay for it.

If you were willing to pay your attorney the money necessary to go through the first stages of a custody proceeding and are willing to pay for the psychological evaluation, the judge will know that you are serious. Therefore, he will change the “track” or procedure for the case.

If the case is one where there has been interference with visitation and no real change is sought in the custodial situation, the judge will generally have the parties come back once every three or four weeks until he can convince both of them to agree to the change or the enforcement of the current order. If, for example, a father had a good relationship with his 12-year-old son who is in the custody of his ex-wife, and he wanted to expand the time that he had his son during the summer from 2 weeks to half the summer or 5 weeks, that might be resisted by the mother. However, what a judge will do is bring the mother in on a regular basis along with the father and their attorneys, instead of having a quick hearing and making a decision which would probably make the mother mad. After three or four appearances, the attorneys’ fees are mounting into the thousands of dollars and he would continually explain to her, have the law guardian explain to her, and possibly even have her therapist explain to her, how it might be beneficial for her son to spend more time with his father.

At the time the psychological exam is requested, usually at the second or third court appearance, the judge will make a determination if it is a “simple” case, such as one where the father wants more time, or whether the case is more complicated and is something that might require a trial. If he believes that the parties are serious and that there is good reason for the proceedings to possibly go to trial, he will order the psychological evaluation.

One of the dynamics that must be understood about pursuing a custody case is that any family court judge is extremely overworked. Because of the fact that they are extremely overworked, they don’t want to waste their time on custody matters that are not sincere efforts. There is frequently “squabbling” about custody and often some interference here and there by the custodial spouse. The judge’s perspective is that he has many extremely difficult cases before him, and he does not want to waste time on a case where the parents are merely “squabbling.” Therefore, you must demonstrate that the case truly is something that you are concerned about by being willing to pay for the psychological evaluation.

Typically the case would be adjourned anywhere from 2 to 4 months in order for the psychological evaluation to be completed. The better psychologists are busy and it may take as much as 90 days to get in to see one. After you see the psychologist, the psychologist will want to check with teachers, school psychologists, any mental health care professionals which either parent have seen, and do follow up work to check on different facts.

Once they complete that process, most psychologists will have the mother and father back in for another session. Therefore, typically from the first interview, it takes a psychologist something in the vicinity of 30 to 45 days to complete the work necessary for the evaluation and then to write the report.

The court appointed psychologist used to be paid for by the County. In fact, there is some case law which indicates that the county is still required to do this. Unfortunately, although you can still have a psychological evaluation done at county expense, you might have to wait 2 to 3 years to get one done. Obviously, that would defeat the purpose.

With counties having less and less money available, and based upon the fact that there is no strong political constituency for psychological evaluations, counties no longer provide this benefit. So, the choice is for the litigants to pay for the psychological evaluation themselves, or to wait at least a year.

The psychologist will eventually issue a written report to the judge. That report can be anywhere from as short as 5 pages to the longest I’ve ever seen, which is 54 pages, single-spaced. The report is partially confidential from you, the client. The body of the report will list all of the facts relied upon by the psychologist, including confidential information given to the psychologist by the children, by the children’s teachers, day care workers, or friends, confidential information possibly from your mental health care professional or from the other parent’s mental health care professional.

In order that there be no “backlash” against any mental health care professional, or against any of the children or teachers for honest comments they have made to the evaluating psychologist, the body or main part of the report is strictly confidential and can only be reviewed by attorneys. If someone is unrepresented, they are still prevented from seeing that part of the report.

Although this may be upsetting to you, you must realize that there is a good reason behind it. The comments are sometimes protected by patient/counselor privilege. Further, the children must have the confidence that they are allowed to speak freely without fearing that their statements will be utilized later against them by either parent. Further, they may not want either of their parents to be hurt by their comments. Therefore, most judges consider this portion of the report extremely confidential and will sanction an attorney who allows a client to read it.

However, I will be able to review the entire report and discuss with you generally the information available to the psychologist. If a particular incident is mentioned, we will have the right to discuss that with the judge and try to rectify any factual errors contained within the psychologist’s report. Therefore, your rights are protected if you have an attorney.

What the attorney can reveal to the client is the ultimate conclusions reached by the psychologist. These are usually the last page or two pages of the report. These will state general conclusions without discussing confidential information and set forth the psychologist’s recommendation for what should happen with custody.

Once the report is provided, a return date will be established. Sometimes it will be set in advance, and sometimes a court will wait to set the return date until after the psychological report is received. Because these are long reports and may take an hour or more to read, a good attorney will go down and review the report a few days prior to the return date. Sometimes that is not possible because the report is not delivered until the day of, or the day before, the appearance date.

Both attorneys will eventually review the report as will a law guardian. The psychological evaluation is the single most important aspect of most custody cases. The psychologist, depending on who they are, may have some prejudice for men or for women, may have some prejudice based on race, creed, or color. However, the good ones do not, and what you get from them is usually a fairly accurate picture of the psychological history of the family and the needs of the children. Because these reports are considered impartial, great reliance is placed on them.

If the psychological report comes back negative to one parent’s position, and if the law guardian agrees with that position, generally speaking the case is over “except for the shouting.” The judge will then go into the same kind of “settlement mode” that he would in a case where he knows that there is no real need for a trial, such as one where a father is seeking to expand his time with a teenage son.

With a psychological report in favor of one parent, and with the law guardian’s recommendation in favor of the same parent, that parent will almost certainly win a custody trial. Although you have an absolute, positive, without question, right to a trial, the judge will make it as difficult and expensive for you as possible if he does not see a good reason for the trial.

The first appearance or possibly the first two appearances after the psychological evaluation are therefore, critical. At that point in time, a judge will make up approximately 90% of his “mind” on what the final resolution of the case will be. He will often give the parties an adjournment from the first appearance so that there can be more time to “digest” the psychologist’s report before he has either parent concede their case. However, be assured that if the psychological report and the law guardian’s report are both negative to your point of view, the judge will almost certainly force you to settle.

The judge will schedule a series of appearances again, driving up the amount of your attorney’s fees. He will make stronger and stronger comments about the powers that he has and the wide discretion he has in ruling on custody cases. Finally, at some point, the judge will begin threatening that the “losing” parent will be forced to pay not only their own attorney’s fees, but those for the other parent.

Why do judges fight so hard to settle custody cases? The simple answer is that doing a custody trial is horrible for everyone involved.

The type of cross-examination you see on Perry Mason or a typical lawyer’s show is not realistic. In a normal medical malpractice case, the doctor or the medical expert does not “break down.” However, if you have lived with somebody for 5 or 10 years and had a child with them and observed them at their worst and best moments, and you confide that information and worse to an attorney, the chances of any good and competent attorney “breaking down” the witness are excellent.

If I feel it is necessary, I usually have no problem in getting the other parent to cry or swear at me during a custody trial. Simply put, a custody trial is psychologically devastating on both parents, and because it is so devastating on the parents and creates so much tension with them, it is also usually very detrimental to the child. Therefore, except in the very, very rare cases where there is truly a close question as to what the custodial arrangement should be, a judge will use all of his or her powers of persuasion and threats and intimidation to settle a custody case.

What if the law guardian and psychologist come to different conclusions and recommendations? What if it is a close question that is difficult for the judge to say what is right based upon these “impartial” recommendations? What happens then?

Generally speaking, the judge will set up a scheduling order for the custody case. By this time, anywhere from 3 weeks to a month has passed from the date of the filing of the petition to the first appearance, and anywhere from 2 weeks to a month for the date of the second appearance. Possibly, there will have been more than two initial appearances. Then, there would have been an approximately 3 to 4 month break to have the psychological evaluation performed, and another appearance or two appearances to get to the point where a trial looks likely.

Typically speaking, that whole process would take something in the range of 5 to 6 months. So, you are now 5 to 6 months into the proceedings during which the temporary order has been in affect and now the judge will say that we are going to need to have a trial. He will generally give the parties something in the range of 2 to 4 months to conduct “discovery.” Discovery is when you get to ask questions of the other side, and they get to ask questions of you. Typically a judge would say that he would want all discovery done within 90 days, and then come back for a final pre-trial conference.

Items discovered during this question and answer period may result in some further potential for settlement. If not, on the last pre-trial conference date, the judge will set down the matter for a trial date.

The judge does not have a great deal of time to handle custody cases. Generally speaking, the family court judges will have a tremendous amount of pressure on them just to resolve their day to day cases. Most judges will only try cases in the afternoon. Sometimes they are not able to give you consecutive afternoons for your custody trial. Often they may try to clear their calendar every other day for a week in order to accommodate a custody trial. However, what you must realize is that the trial will not start on a Monday morning at 9:30 and continue until it is done. It may well take 2 or 3 weeks of time to put in 1 week’s worth of testimony. I have also had it take nine months to do seven days of testimony. After the trial, the judge will generally make a decision within 30 days.

The amount of time between the final pre-trial conference and the trial date varies widely from judge to judge depending upon their schedule at that particular point in time. Therefore, you could get a trial date as little as 30 days after discovery is complete, or as much as 3 months. Thus, from when you file your petition to the first date of trial is generally at least 9 months and possibly as long as a year.

Looking back over this letter, what you must see and realize is that we have, in reality, three different “audiences” during this custodial case. The first is the judge, the second is the law guardian, and the third is the court appointed psychologist. We must keep in mind at all times, that we want to influence all three of these people to have as favorable a view as possible of you, and as negative as possible view of the other parent. Further, this is a long, difficult and complicated process. Many strategic decisions have to be made, and it will be expensive.

To go through the initial proceedings up to receiving the psychological evaluation and then negotiating a final settlement based upon the psychological evaluation and the law guardian’s report, will probably cost approximately $5,000.00 to $10,000.00, unless there are interim applications for the other party to be held in contempt of any temporary order. Where there has been constant interference with visitation, I have had clients spend as much as $20,000.00 to insure compliance by their spouse with temporary order of custody and to complete the psychological evaluation.

Once the evaluation is back and there is no settlement, the cost of the discovery process can be as little as $5,000.00 and as much as $15,000.00, depending on how many witnesses have to be deposed and how much information has to be uncovered.

Generally speaking, a custody trial would last at least 5 full days of trial and possibly twice that long. The cost for preparation for the trial and the trial itself would be something in the range of $25,000.00 to $50,000.00.

A simple, run of the mill custody trial would therefore be at least $25,000.00 from beginning to end. A complicated difficult, nasty, one could exceed the cost of $100,000.00.

Please note that the procedural generalizations contained within this letter are only that — generalized statements. The facts of your particular case may result in a particular judge reacting differently at any stage of these proceedings.