So, maybe you’ve done your best to avoid court, but you’ve realized that the very issues that drove you and your ex apart are still just as present as ever—and they’re preventing you from working out your custody issues reasonably or fairly. Maybe your ex is just uncooperative or stuck on an issue that’s keeping you from getting anywhere. You might be in what’s called a high-conflict case, which we’ll cover in detail in the next chapter, or a violent relationship where alternative dispute resolution methods aren’t safe or effective. Or perhaps you and your ex own a business together and you’ve got other legal concerns that you need to extricate yourselves from.
For whatever reason, it’s time to take this messy relationship to a courtroom and let a judge try to figure out what to do.
But how do you prepare for court so you can get the best outcome for your kids? We’re going to talk about a few types of evidence that you’ll need and what you should start doing—yesterday, if possible—to get your ducks in a row. We’ll discuss:
- What matters most when you get to court?
- Do you really need a lawyer?
- Just what is “evidence” in court?
- What can witnesses do for your case?
- What records may be helpful for your case?
We’ll start with the bottom line: what’s the most important thing to keep in mind when you get to court?
What Matters Most Is What Your Judge Thinks of You
If (or when) you go to trial, your judge is the one who’s going to decide what happens with your child’s custody and visitation. Therefore, his or her opinion of you is one of the most important factors in deciding your case, and that opinion is largely within your control.
Who is the judge for your case? When you file your custody lawsuit in North Carolina, you’ll get a judicial assignment that shows you who your judge is. In North Carolina, we operate under the idea of “one family, one judge.” That means that the judge who hears your first matter on child custody, or any of your other divorce-related matters such as child support or alimony, is your assigned judge then and forever. That judge is going to hear everything that you litigate regarding your divorce or your children from here on out.
There are several reasons for this policy. First, you’re not going to have any consistency if you go in front of a different judge every time you go to court. And different judges have different ideas about what they think is important. With these inconsistent decisions, you would never really know what to expect from a court hearing. In addition, litigants could strategically request continuances to get their case in front of a judge they think will be sympathetic. The “one family, one judge” approach eliminates that potential manipulation.
This policy also allows your judge to become familiar with your family and your case. While the judge may not remember every single thing from your previous hearings, he or she will remember more than you’d expect. In particular, they’ll notice changes in your children—their behavior, their grades, and their health, for example—over time. Judges can go back to their notes and jog their memory too. So, they’re going to have some familiarity with you and your family, which is going to help them make the best decision for your children.
But listen: you know that you’re going to have the same judge every time, and you know that your judge will always be, you guessed it, judging you. You want to make sure that you’re always, without exception, on your best behavior before that judge. Your judge is going to have your child’s life in his or her hands for at least months, if not years, to come. Put your absolute best foot forward at every appearance!
Will your judge understand if you’re having a bad day or you’re upset about a traumatic incident with your child? Probably. Judges are people too, and they get that sometimes our emotions can run away with us. But you will never hurt yourself by maintaining a certain courtroom decorum. You want to dress professionally. You don’t want to speak out of turn or have an outburst at the table when someone’s on the stand. You never, ever want to interrupt the judge. You never want to become visibly angry or argumentative. These are things that you, and only you, have complete control over. Will you need to prepare and practice mentally? You bet. Reading this book is a terrific first step.
The more prepared you are for court, and the more professional, calm, cool, and collected you can stay, regardless of what happens, the better you’ll come across in the eyes of your judge. Remember, the judge is looking to see who can successfully manage the trials and tribulations of child-rearing. Make sure your judge knows that you are that person and that being with you for a reasonable share of time is in your child’s best interests.
This brings us to another common question we hear, especially as divorcing parents confront the financial realities of setting up two separate households.
Can I Represent Myself? Do I Really Need to Pay for a Lawyer?
You probably picked up on this during the last section, but we’ll spell it out anyway: you have enough to do in the courtroom already, between managing your emotions and demonstrating that you’re a competent and capable parent. You do not need to be a hero by trying to do everything yourself.
In other words, yes, you need a lawyer.
Your lawyer knows the law—and not just the law about divorce and child custody, but also the law about alimony, child support, division of financial assets, and the tax implications of your divorce. Plus, your lawyer knows the rules of court, including how to present evidence and how to put a variety of different facts together into a compelling and powerful argument that will convince the judge that what you are requesting is a good idea.
Your lawyer also—and this is critical, as you’ll quickly figure out—knows your judge.
Choose your attorney wisely, and then trust your attorney. Your attorney has a wealth of knowledge about how things work in this court, what matters to this judge, and what this judge finds convincing. Your attorney has been in front of your judge several times, if not hundreds of times. You’ve hired this attorney for his or her experience. Let your attorney walk you through the process. Take his or her advice. Do everything your lawyer advises you to do to the best of your ability.
Now, you don’t have to do all of that blindly. Establish trust in your attorney by asking lots of questions. Seriously, no question is a dumb question. Ask your attorney what’s going to happen next. Ask what else you should be doing. With those answers, you can then ask why you should do certain things (or not do others). Make sure you and your attorney agree about what’s best for your child; neither of you should ever forget that that’s the reason you’re working together.
When you’re choosing your attorney, look for someone you can comfortably pepper with questions. Just as importantly, make sure you understand the answers you get. If you can’t understand what a lawyer is trying to tell you, it doesn’t mean that you’re stupid: it means that’s not the right attorney for you. Your lawyer’s job is to help you be fully aware of what’s going to happen in court. This person is important. Insist on finding someone you can really work with.
Once you start working with your attorney and preparing for court, you’re going to hear a lot about presenting evidence to the court. What exactly is “evidence,” though?
What Counts as Evidence in Court?
Generally speaking, everything is evidence! The court can consider everything you say and do in the courtroom as evidence of the kind of person—and more importantly, the kind of parent—you are. Judges want to know as much as they can about the children and parents who appear in front of them so that they can make good decisions that support the well-being of those children. The judges that we have dealt with in custody trials take this responsibility very seriously.
Evidence includes general information about who your children are: their ages, year in school, and typical grades. The judge will want to know what kind of home environment each parent has. Who else lives in the home with each parent? When and where will the child sleep at each parent’s home? What custody schedule has been in place, and how has it been working? Where do the parents work, and what is their work schedule like? Does either parent travel for work? How does each parent plan to handle daycare, before- or after-school care, and daily routines? The list can go on and on. Remember that broad list of factors affecting your child’s best interests? Those, and more, are what the court is weighing.
Most of this information is provided as testimony from you and the other parent. Testimony is evidence, although that doesn’t mean that the judge has to believe it. There’s credible, or believable, evidence, and then there’s junk evidence. The calmer and fairer you appear on a regular basis, the more likely the judge is to believe you when you testify about what’s going on.
Here’s a little secret: judges are bored by testimony about who brushes your child’s teeth at night, tucks them in to bed, attends their games, and takes them to the doctor. Family court judges hear this story day in and day out. You want to stand out in a positive way so the judge gives your evidence more attention. How? Look for pictures, videotapes, and items from school like drawings, cards, and short writing assignments. These visually interesting items have a much greater impact than someone’s voice alone. They show what’s in your child’s best interests, in vivid and colorful detail. They help the judge personalize your relationship with your child. Also, make sure you provide the judge with a current photograph of each child. This helps the judge put a real face to your child’s name.
We recommend that as you identify items like this that may have value to your case, put them somewhere safe. You might store them in your lawyer’s office or at a friend’s house. Don’t hide them in your own home, especially if your ex is still there. Treat these items with extreme care as they could wind up being crucial to your case.
In our experience, the person who can give the most specific examples to illustrate his or her case is generally deemed to be more believable. That’s why we often advise our clients to keep a journal of everything that happens with regard to their children. We give this advice with a grain of salt: it does have a tendency to make people focus on the negatives!
If you choose to keep a journal, record information like when your child was returned after visitation, what your ex said when returning the child, and anything you notice about child care (such as an untreated illness or unsuitable clothing or meals). The journal is important because you won’t remember all of these specifics by the time you get to court in six months. Try to remember, as you do this, that you’re looking out for your child’s best interests, not counting beans to “get back at” your ex for whatever went wrong in your relationship. Focus on what’s important for your child’s well-being!
In some situations, you might also record telephone conversations with your ex or keep his or her voicemails or text messages. These might be useful in court to show that the other parent is hostile or abusive or to support your testimony about statements that he or she made outside of court. Recordings can help eliminate the general “he said/she said” arguments that occur in custody trials. Be cautious, though! While recording is legal in most states when at least one person consents, there are some states where this is not the case; ask your lawyer for more specific information. Also, while some parents secretly record conversations between their child and their former spouse, this is generally illegal and is not advised.
Remember the bottom line: what most judges are looking for when deciding a custody case is a parent who can be trusted to take care of the child. Avoid making over-the-top allegations and nitpicking complaints, as these can diminish your credibility and make you appear less responsible and trustworthy.
Besides your testimony and whatever pictures or recordings you can find to support it, there are two main sources of evidence: witnesses and records.
What Are Witnesses Good for, and Where Do I Find Them?
Here’s another secret about custody disputes: it’s not enough to be a terrific parent to your kids in private. Everyone knows the saying, “If a tree falls in a forest and no one is there to hear it, does it make a sound?” Our version goes, “If you are a great parent but nobody else has ever seen it, are you still a great parent?”
Every custody case involves differences of opinion about the other parent’s fitness. Every parent highlights his or her own outstanding parental abilities and lists the many the shortcomings of the other parent. How does the judge figure out what’s really going on?
Whenever possible, judges rely on the testimony of neutral witnesses to paint a more objective picture of the parents and their relationships with their children. The witnesses who make the biggest difference are the people who regularly see you actively parenting your children. Good witnesses include:
- the daycare teacher who sees your child’s excitement when you arrive for pickup,
- the nurse at your pediatrician’s office who recalls that you are diligent and supportive when your child is sick, or
- the neighbor who sees you outside playing catch and laughing with your child after work.
Don’t be an invisible parent. If you are a great parent but no one else knows it, start to correct the situation today. If your case is going to be litigated, you probably have a lot of time to prepare—usually six months to a year or more. Use that time to be visibly involved with your child in the presence of people who can support your case.
In addition to witnesses, there are a few types of records that can help the court gain a more complete picture of your child’s life.
What Records Would Be Helpful?
This is a very child-specific determination: very young children may not have established much of a paper trail yet, while older children or children with significant medical needs might have boxes of papers to select from. In the latter situation, don’t give in to the temptation to dump it all on the court’s doorstep. Look for those records that are truly helpful.
Consider providing the court with records such as these:
- report cards or parent-teacher conference notes, especially those that mention the child’s living situation or relationship with you specifically;
- medical records about your child’s unique needs, particularly if they include references to the way that you have set up your life to meet those needs;
- information about your home, whether you own or rent, such as the number of bedrooms and bathrooms you have available for your children.
This is not an exclusive list. Other records may help you show the court—instead of just telling it—that you are a very capable parent to your individual child. Talk with your lawyer about where else you should look for helpful records.
There’s another thing you can do to prepare for court, and that’s to learn as much as possible about the court process. Fortunately, that’s what this entire book will help you with!
We do have an important caveat to add here: while you’re reading this book, lining up witnesses and records, practicing your deep-breathing exercises, and doing everything else you can to get ready for court, you should not be talking with your children about court. Yes, they need to know generally what’s going on, but it isn’t in their best interests to hear a blow-by-blow account of everything that’s wrong in your relationship with their co-parent. Protect them from any litigation ugliness to the best of your ability.
Remember that you’re going to have to parent these kids—with their other parent—while you’re figuring out your long-term plan, and it is not going to be easy. For more help with co-parenting while everything is up in the air, see chapter 9.
Meanwhile, let’s spend a little more time exploring the high-conflict cases that tend to get bogged down in lengthy litigation. The next chapter will explain some of the extra tools available for resolving exactly those tough cases.
