One of the hardest aspects of divorce is getting you and your spouse to agree on how the lives of your children will be effected. When will you get to see them? Who gets to spend birthdays and holidays with them? How do you help them feel like a part of a family when everything is falling apart? Our attorney Anna Ayscue is here to take the case. Having been a member of our firm for years, she’s seen a number of different child custody cases, all with vastly different outcomes. In this article, she discusses some of the questions concerning child custody that you’ve been unable to find the answers for.
Why did you become a family and child custody lawyer?
When I decided to go to law school and become a lawyer, I thought for sure I would never be interested in family law and divorce issues. There would be too much conflict, so many emotions, and I thought I would hate it. The first summer between my first and second year of law school, I was a student intern at a small firm where about 50% of its practice was family law. To my surprise, I really enjoyed it. I interned again at the same firm the year after that and by the time I graduated law school, I discovered that I had absolutely no interest in anything but family law.
Now, I’m my client’s cheerleader throughout the separation and divorce process. It’s extremely scary to separate because there are so many unknowns for each person with the dissolution of a marriage: how often they see their kids, which holidays they will be able to spend with them, how much spendable income they will have each month to live off of, even how much money they may have when they retire. I strive to be the person in their life that understands what they are going through and to remind them I’m right there with them to help them navigate through the process successfully and put all of this behind them as quickly as they can.
What does a typical child custody case look like?
There is no such thing as a typical custody case. Every case is different. Sometimes I have clients that have already agreed with the other parent about a custody schedule and they co-parent really well, so all they want is help making it official. And other times I have a situation where both my client and the other parent agree that both are good parents to the children but they cannot agree on any decisions, or they both want the children at the same time and can’t agree on a custody schedule. And other times we have situations in which one parent is refusing to allow the other anything but minimal visitation, or the children could even be in danger if they are in the custody of the one parent.
Either way, the end goal is to have a custody schedule that is best for the children and works for my client and his or her schedule. And ideally we’d like to resolve the issue of custody quickly so that the children can have stability and consistency. I am usually able to fairly quickly assess whether or not a client should file in court for custody or if there is a chance we’ll be able to reach a custody settlement out of court.
What should I know before filing for custody?
If it’s determined that a custody court case does indeed need to be filed, it’s important to know that even if you are filing a custody complaint, there are no immediate results in court absent a physical or sexual abuse situation or a parent attempting to leave the State of North Carolina to evade North Carolina jurisdiction. Unfortunately, court dockets are backlogged in every county, as far as I am aware, and it takes time for a custody case to work through the court process.
Once you file for custody, you have to serve the other parent. This can take a few days or a few weeks. Then you must attend a custody mediation orientation session and on a separate date attend the actual custody mediation unless one of the qualifying exceptions applies. All of this usually happens before you can even get a court date. And once you can get a court date for temporary custody for example, there is no guarantee that the judge will be able to reach your case and your case could be continued, or “bumped,” to several weeks or months away, and neither you, your attorney, the other parent, or their attorney has any control over this. It can be incredibly frustrating to wait to appear before a judge because without a court order you are continuing to have to deal with the other parent and what can be their unreasonable demands.
What kind of evidence does a judge look at for a custody case?
Loosely speaking, everything goes as far as evidence in a custody trial. Judges want to know as much as they can about the children and the parents so that they can make a good decision for the wellbeing of the children. The judges that I have dealt with in custody trials take this responsibility very seriously.
Much of the evidence at a custody trial is from the testimony of Mom and Dad rather than documents submitted as exhibits during trial, although physical evidence such as a child’s medical records and/or school records, as well as testimony from a child’s therapist if warranted, are still very important when needed. This typically includes general information about the children (ages, grades, schools), what kind of home environment each parent has, who else lives in the home with each parent, when and where the child will sleep with each parent, where each parent’s residence is located and the distance to each other and the child’s school from each residence, the custody schedule that has been in place, which schedule the parent believes will be in the children’s best interest and why, each parent’s employment, each parent’s work hours and work schedule, each parent’s plans for daycare, before or after school care, concerns about the other parent and their ability or inability to provide appropriate and adequate care for the children, each child’s daily routine, and the list can go on and on.
Also, each custody case will present its own unique issues that need to be dealt with in a custody trial beyond this list of typical topics. One thing that I like to do in permanent custody trials is enter into evidence at the beginning of the trial a picture of each child so that the evidence presented can be more personable to the judge and so he or she can put a face to a child’s name and to see who he or she is making decisions for.
How do I prove I’m a fit parent (even if I’ve made some mistakes)?
You will want to focus on the positive aspects of your parenting and the reasons why it will be in the children’s best interests to have custody or visitation with you. If in a trial, you may still need to bring up these mistakes but you can give explanations or you can show how you have changed and what you have done to change since the mistakes were made.
How can I make this as easy on my kids as possible? Do I explain to them what’s going on?
A separation is going to be hard on a child no matter what. It’s best not to discuss the actual custody case with your kids. They don’t need to know the details of the case, that Mom or Dad is dragging the other to court, or anything else about what Mom or Dad believes about their case. It’s also never a good idea to disparage and talk badly about the other parent in the presence of the kids. The kids love both parents, and both parents should take care to ensure that they do not damage the relationship that each child has with the other parent.
How can a parent improve their chances of winning their case?
The best way a parent can improve their chances of “winning” is to settle out of court. This is because when you go in front of a judge, you have no idea what the judge will do. You have no idea what the judge will find credible and useful and what he or she will disregard as not creditable and instead useless. You and your attorney may have a good idea of what you think a judge will do, but at the end of the day, you can never predict what ruling a judge will make. And in a custody case that ends in trial, there is never a true winner. You may be awarded some of the things you’re asking but, but so may the other parent. Plus, you will have spent hours in court testifying about why you should have custody and not the other parent and this can make your co-parenting relationship with the other parent forever damaged.
In court, a judge will never know your children as best as you do. If you can settle out of court, then you maintain control over your case and in determining a schedule and other details that are in the best interests of your children. Quite often you are able to negotiate and resolve a custody schedule out of court that is potentially better than or as good as what you would receive in court. Employing a skilled family law mediator can be invaluable in helping you get to this point.
