When two parties are involved in a divorce settlement involving children, they will not always agree when it comes to legal and/or physical custody. If the two parties cannot agree, then the court will make the decision for them. To make the decision, the judge sets a time a day for the parties to appear in court and to present evidence (testimony and documents) on the issues on which the parties can’t agree.
For example, if the parties agree to share legal custody, then they don’t have to offer evidence on legal custody. Similarly, if they agree to some sort of shared physical custody schedule, but they can’t agree on what the schedule will be, then the judge will have to make the decision for them. Here is an outline of the trial process in a contested child custody case.
The Trial Brief
In the case of legal and physical custody, each party submits a statement of that party’s position, including a proposed custody order. This is called a trial brief. Each party will argue why the court should adopt the custody order presented by that party. The traditional practice is to give the court a short background about the parties and the child or children.
The attorney writing the trial brief will go through the statutory factors for child custody and explain how these factors favor the client’s position. The trial brief is due seven days before trial.
Exhibits in a child custody case might include, school attendance records, a calendar showing how the parties have shared time since separation, or the report of a child custody investigator – this is a person the court appoints to interview the parties and examine medical records, criminal records, school records or anything else the child custody investigation thinks is important in making a recommendation to the court. Exhibits are due seven days before trial.
Best Interest Factors
To make the decision, the court listens to testimonies of the witnesses for each side, and also looks at the exhibits each side gives to the court to consider. The court then has to consider certain factors, called the best interest factors (as outlined in AS 25.24.150, Judgments for custody; supervised visitation):
- the physical, emotional, mental, religious, and social needs of the child;
- the capability and desire of each parent to meet these needs;
- the child's preference if the child is of sufficient age and capacity to form a preference;
- the love and affection existing between the child and each parent;
- the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
- any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
- evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
- other factors that the court considers pertinent.
Also noted in this statute is the following relevant statement; “In awarding custody, the court may consider only those facts that directly affect the well-being of the child.”
Preparing for Trial
Every attorney prepares for a custody trial differently. I typically meet with clients about two weeks before trial to explain the process to them. My primary goals are to prepare you for cross-examination and work with you in developing the agility to respond to unexpected questions in what might be described as a “combat setting.”
About 5 to 7 days before trial, I will meet with my client to discuss the questions that will be asked at trial, the exhibits that will be used, and to prepare my client to be cross-examined. When an attorney questions a witness called by the other side, those questions are called cross-examination. I will have the opportunity to cross-examine the opposing party, and his/her attorney will also have the opportunity to cross-examine you.
About three days before trial, I will meet with each witness the client and I have decided to call to offer testimony to go through the questions and to do a mock cross-examination of each of my witnesses.
What to Expect
You have probably watched television programs or seen movies involving trials. Most of the time it is not nearly as glamorous as you see in movies or on television. It’s important to make sure you get a good night’s sleep before trial. There will be opportunities to take breaks during the day, so it is recommended to bring food to snack on during the breaks.
At the trial, each side is entitled to present the evidence that each person believes will support his or her position. Here is an overview of what will probably happen during the trial – but I tell my clients to remember that it is impossible to predict exactly what will happen at trial. So they should be prepared for the unexpected.
1.Possibility of Settlement
At the beginning of the case, the judge will typically call the attorneys into chambers to ask if there is any possibility of settlement. Assuming this is not a possibility, the trial will continue.
We will then come back to the courtroom and the judge will call the case. Each attorney will make an opening statement. An opening statement is a roadmap that each attorney presents to the court outlining the evidence that he or she expects to present at trial. This is not the time to argue the facts that will come out at trial; rather it is to give the judge an overview of the story that we are going to tell at trial.
After the attorneys have presented their opening statements, one party will present his/her evidence, including the testimony of his/her witnesses and the exhibits he/she would like the court to consider in deciding the issues in the case. After the first party’s attorney has finished examining each witness, then the opposing party will have the opportunity to cross-examine the witness who has just finished testifying.
At the conclusion of the case, after I have put on my witnesses, then the opposing party’s attorney would have the opportunity to call any witnesses in rebuttal. Rebuttal testimony is testimony that tends to dispute facts that we brought out in our part of the case that was not previously brought out by the opposing party.
After the case is concluded, generally the court session ends. It is unusual for a court to issue a decision immediately after trial, but it can happen. Assuming this does not happen, one of two things will occur.
- First, the judge might call the attorneys back to the courtroom. The judge will make his or her rulings with the clerk present, and then request one of the attorneys to take those rulings and submit a document called “Findings of Facts and Conclusions of Law.”
- If that does not occur, then the judge might issue a complete written decision containing findings of facts and conclusions of law. Once that decision is issued, each party has ten days to either object to the findings or ask the court to make further findings.
Tips to Remember
I understand that a court trial can be an overwhelming experience if you have never been through one before. I do my best to fully prepare you for what to expect, before, during and after the trial, so there are no surprises. If you need further explanation of any part of the trial process for child custody, I’d be happy to walk you through it.