The following text is a draft of the section on Preparing for Custody Trial in the new revision of the Manual of the National Congress for Fathers and Children (NCFC)
Some of the comments refer to Michigan law, and should be read in light of your own state's statutes as to custody criteria, etc. For information on joining NCFC and receiving the Manual, call 1-800-733-DADS.
NATIONAL CONGRESS FOR FATHERS AND CHILDREN PREPARATION FOR TRIAL OF THE CHILD CUSTODY CASE
1. IDENTIFY APPLICABLE LAW - This is generally found as a definitional section within the jurisdictional state's provisions regarding factors to be determined by the court in its findings of "BEST INTEREST 0F THE CHILD". This will vary depending upon which state has jurisdiction of your case. In Michigan the best interest of children are determined through an analysis of twelve, in Kansas it is defined within three factors. Regardless of your jurisdiction, your lawyer must be prepared, engage in proper discovery and have a strategy.
2. If you are living with your child and the other parent, do not move out without your child or this fact alone may be determinative of the final outcome.
A skillful attorney will argue that you've acknowledged the appropriateness of the other parent as a caretaker by your own action in leaving the child in their care.
3. Concentrate on distinguishing your "parenting abilities" and "bonding" with the child from that of the other parent - the proofs as to these considerations often will determine the "burden of proof" which will be applied by the judge- avoid "throwing dirt " at the other parent: if it must be done let your witnesses do so, otherwise, you may appear angry and not motivated by your child's "best interest".
"BURDEN OF PROOF" is generally decided based upon an analysis of whether or not an "established custodial environment" exists between the child and either parent. This is ,in many states, decided based upon who has been the "primary parent". Primary parent is described in the manual section VIII-12.
"ESTABLISHED CUSTODIAL ENVIRONMENT" (ECE) is defined through case law. The Michigan courts decide whether an established custodial environment exists by answering the following question: "Over an appreciable period of time, has the minor child come to look to one parent over the other for parental comfort, guidance, necessities of life and discpline?" (This can be effectively used to argue maintenance of the status quo.)
If the answer is "yes", then that parent has an ECE and the burden of proof is: "CLEAR AND CONVINCING EVIDENCE" If the answer is "no", then the burden of proof is : "PREPONDERANCE OF THE EVIDENCE".
4. Prepare a chronology of all relevant events, occurrences or possible factors which have influenced your child's upbringing (i.e. parent's work schedules, interference with custody or visitation, education, etc.
5. Organize "provable events and facts " according to the factors defining best interest of child within applicable state statute.
6. Identify needed witnesses for each fact needed to be proven and get written statements from all witnesses.
The LITIGATION PROCESS will often take 6 to 18 months before conclusion. Witnesses who are willing to help now need to GIVE WRITTEN STATEMENTS NOW, otherwise, cold feet, pressure from your spouse or family or claimed loss of memory may cost you the proof needed to win your case and to present the truth to the court.
7. Isolate the "factors under the statute " which are close calls, likely winners, likely losers or up for grabs.
8. OBTAIN ALL AVAILABLE SUPPORTING DOCUMENTATION. Your attorney should subpoena the employment records, child's school records, family medical records, pension information, insurance claims, financial statements and loan applications... dig , dig, dig... Consider random curb side garbage pick-ups for valuable information and use of private investigators.
9. IDENTIFY ACTS OF PARENTAL ALIENATION
-"The Parental Alienation Syndromne" by Richard A. Gardner 1- 212-567-8989
-"Children Held Hostage" by Stanley Clawar PhD 1 610-525-5725
- Created memory in children Terence Campbell PhD 1- 810-939-5110
- False sex abuse allegations Ralph Underwager PhD 1-507-645-8881
-"The Suggestibility of Children's Recollections" - American Psychology Association
10. PARTICIPATE IN DISCOVERY - Help your attorney develop questions for the other parent and their witnesses so that interrogatories, requests for admissions and depositions can be done EARLY in your case. Do not miss deadlines for answering or filing your discovery request - your failure to prepare is not reason for the court to adjourn your case and often admissible evidence is excluded based upon failure to comply with or participate in discovery within prescribed deadlines.
11. CONSIDER THE ROLE OF THE EXPERT WITNESS - DO YOU NEED PSYCHOLOGICAL , OR MEDICAL TESTIMONY (generally it is important for fathers to use psychologists in order to establish adequate proof that the children will develop better under his care than the mother's. (Refer to Michael Lamb's research collection entitled , "The Role of the Father in Child Development" as a valuable resource.) If your spouse has an expert , then you should have one. Experts can base their opinion on otherwise inadmissible evidence such as hearsay. Disclose the name of your expert before the deadline to do so, otherwise , you may not be able to use his or her testimony.
12. DEVELOP YOUR "THEORY OF THE CASE" AND STICK WITH IT. Rather than concentrating on marginal neglect or abuse consider the approach that "mom's doing her best", but I can do better and the children will do better with me. Then stress your positives.
13. If you are the defendant/respondent, file a counter complaint requesting affirmative relief so as to prevent the dismissal of your case unilaterally by your child's other parent for tactical consideration.
14. PREPARE A "TRIAL BRIEF". This should contain: a history of your child’s development including your involvement, summary of the testimony of each witness you expect to call and proposed conclusions of law. [submit to the court at the last allowable moment.]
15. A settlement cannot be appealed , absent provable fraud, so avoid partial settlements. (it is not over until it's all over.)
So be prepared to call your first witness if you don't like what is being offered. often the other side will lose because they failed to prepare their case for trial.
GOOD LUCK - Travis Ballard Esquire- President NCFC 1-517-263-7822