One of the most contentious issues that come up in family law cases with regularity is children's issues, specifically child custody. When we hear about child custody cases the biggest problems revolve around a wide range of subjects. Usually, the assumption is that these child custody cases are resolved inside the courtroom often. Judges banging their gavels. Attorneys yelling objections across the courtroom at their opposing counsel and parents just like you are sitting there hoping that it will all be over soon. Is this what your child custody case is sure to look like, as well?
The reality of what your child custody case will look like is anything but set in stone. That's the great part about a family law case. Not only does the law make a difference in your case but your attitude, your perspective, and your circumstances will make a major difference in how your case is determined. Do not assume that just because you've heard from other people that your child custody case can go before a judge that this is the most likely result for your case, as well. What you need to do is prepare for the different outcomes of your case by better understanding how you can avoid going to court if possible.
What does it mean to go to court for a child custody case?
Going to court for a child custody case means having a contested hearing or trial before a family court judge. This could be a temporary order hearing at the beginning of a divorce. Temporary order hearings establish orders that will be in effect for the duration of your child custody case. They could relate to child support, child custody, visitation, possession, and all subjects in between. You will have the ability to negotiate for temporary orders, but you will also attend a courtroom hearing where you can submit evidence to the judge. Don't let the word "hearing" fool you.
A temporary orders hearing is essentially a mini-trial where you will need to be prepared. What is decided in a temporary orders hearing tends to be kept in place in final orders, as well. A child custody trial is the final contested portion of a child custody case. Many of the same issues that were discussed in your temporary orders hearing will also be determined in a trial. The major difference is that what is decided in a trial is final.
When can you go to court in a child custody case?
Family law attorneys will tell you that there are many opportunities to go to court in a child custody case. Not only are there temporary orders hearings and trials to concern yourself with but there is a possibility for issues regarding discovery that will require a hearing as well as the enforcement of temporary orders that may require that you attend court. The bottom line is that if you are not careful there are plenty of times that you could wind up in court during your child custody case. Is it likely? What can you do to prevent this outcome? Keep reading until the end of this blog post to find out our answers as to how you can avoid this fate.
Where will your hearing or trial take place?
Your child custody hearing or trial will take place likely inside a courtroom. Your attorney will give you the information on how to attend a hearing, where to park, when to arrive, and all those important details. For smaller hearings, you may not have to attend the hearing in person but would rather be able to attend the hearing via video like we do so many other activities these days. Both parties would need to agree to hold a hearing by video or it would need to be ordered as such by the judge, however. Video hearings were more prevalent during the pandemic and are less so now. You can plan on the hearing itself not taking all that long in some cases but obviously, the time spent traveling to the courthouse and then waiting for your hearing to occur can be substantial.
Avoiding the courtroom in a child custody case
Now that we have walked through some information about what to expect if you do find yourself in court during a child custody case we can get down to business. If you want to avoid a child custody courtroom appearance, then there are plenty of things for you to keep in mind when it comes to avoiding that outcome. Going to court should be a last resort. Ideally, you and your co-parent will be able to work through whatever issues you all have ongoing in your lives to the point where you do not need to go to court.
If I were a parent involved in a child custody case, I would want to avoid going to court for several reasons. The first reason that comes to mind is the cost of doing this. Preparing for a child custody case means that you will be spending money. Your attorney bills by the hour. This means that the more time that your attorney spends working the more he or she will need to be paid. When you attend a contested hearing or trial you will be paying him or her to prepare for the big day. That is not to say that paying your attorney is a bad thing or that attorneys preparing for hearings are a bad thing. However, if you can avoid having to pay your attorney these fees then you should do so- all other factors being equal.
Second, you and your co-parent know your child better than a family court judge. You may not believe it now, but you and your co-parent can handle matters better as s team than the judge can alone. You all know what is best for her. When you go to court you are placing the decision-making capabilities in the hands of a family court judge who will only come to know about your child (likely) through that hearing or trial. This puts the judge in a difficult position to have to decide about your child’s well-being while not being able to know her all that well. This is as opposed to you and your co-parent who do know your child very well despite not agreeing on much now. The last thing you should want is to spend an entire lifetime raising a child and then cede the decision-making authority over her to a judge who will only know a small bit of information about her based on the results of a trial or temporary orders hearing.
Next, we have time to consider. Time is not a resource that you can produce more of. You can technically make more money than you do right now. You can make more money if you must pay for a trial or temporary orders hearing during your case. It may not be easy to make more money, but it can be done. Money, despite what we may think from time to time, is not a finite resource. You can make more money whether by working more, working a different job, or some combination of the two. While nobody wants to spend money unnecessarily the fact that you will have an opportunity to do something actively about your income should bring about some optimism if you do have to go to a trial or hearing.
Even when it comes to the family law case that you are involved in there is an opportunity to come back to court and ask for a change. This is known as a modification. If there has been a material and substantial change in the circumstances of your family since the rendition of your prior order, then you can come back to court and file a modification petition. So long as the judge agrees that a material and substantial change has occurred, and that change is in the best interests of your child then that modification will be granted.
What you cannot get back from a child custody trial or hearing is time. You cannot create more time out of thin air. Time is something that many people do not consider enough during the preparation phases of their child custody case. You can use the downtime in your case to negotiate with your co-parent to see if you can avoid going to court. The time that you spend in court at the very least means that you will have to take off time from work. If you are an hourly employee, then this is money that you are losing. If you are a salaried employee, then you may have to use paid time off to attend the hearing or trial. Either way, you would otherwise be at work in a money-making opportunity and instead will find yourself in a courtroom not making money.
All of these are good enough reasons on their own to try and avoid going to a trial or hearing in a contested child custody case. Of course, you may have your reasons why avoiding a trial or hearing is extremely important. You should keep those reasons in mind when you are preparing for a child custody case. The great thing about a child custody case is that you will be given ample opportunity to negotiate your way through the case. There is no requirement that you step foot inside the courtroom at any point during your case. That said, here are some tips on how to avoid reaching a custody agreement outside of court.
When you are prepared for a child custody case You stand the best chance of avoiding court. The reason for this is that prepared parties in a child custody case can negotiate better than unprepared parties. For example, if you are trying to negotiate on issues regarding visitation and possession but do not have a specific plan in mind when it comes to a possession schedule for yourself then your co-parent does not have much to discuss with you in response. The most productive people in negotiations have both offers and counteroffers. If you have thought through the issues of your case and can weigh in on different subjects intelligently and that is a huge advantage for you to have. Additionally, your attorney can help you better understand the law that goes into negotiating on these subjects.
Next, you can seek to open the lines of communication with your co-parent from the very beginning of your case. There is little doubt that in most of your situations, there is going to be some degree of stress and animosity between you and your co-parent at the beginning of a family law case. Even if the two of you do not see eye to eye very much these days that does not mean that you all can't put that aside for a temporary period and instead focus on your commonalities. Most important of which would be your relationship with your child. It can take some effort to set aside your ego and negotiate with your co-parent on issues like this but in the long run, it will stand to decrease the likelihood that you and your co-parent ever have to spend time in court.
Next, you should develop a close relationship with your attorney that will be able to help you more effectively prepare for your case through the various stages that you encounter. First, you can work with an attorney who has the heart of a teacher. Having the heart of a teacher means that the attorney will be willing to patiently explain your case to you as well as the pertinent laws and other Issues in your case. When you have an attorney who is willing to take the time to explain important issues to you that means that you will not have to spend as much time wondering about the circumstances that come up in your case. Rather, your attorney can be a valuable resource of information and not only advice.
What I like to do with clients is establishing a certain time each week to just talk with them. This can be done in the afternoon or any other free time towards the end of the day. Or, if you have a preferred time to talk on the phone that would work as well. Whatever your preferred method of communication is, you should make sure that your attorney is aware of it. That can go a long way toward helping your case get off the ground on the right foot. Do not take these conversations for granted. Staying up to date on your case can be something that you want to do but do not try to follow through with. If you have a sense of ownership in your case that going to serve you well.
Next, you should start to make a list of goals that are essential and less essential. Everyone who goes through a family law case has certain goals in mind and some are more important than others. If you want to be able to negotiate effectively with your co-parent, then having priorities is critical. Of course, you have an ideal outcome for your case but achieving that ideal outcome may prove difficult. Your co-parent is probably in a similar situation. However, you can take that goal-setting session and turn it into a strategy-setting session very easily. All it takes is being intentional.
The final piece of information that I would like to share with you today is that you should keep in mind that what is in your best interests may not be in your child’s best interests. This can be a challenge for many parents for a variety of reasons. When you have child custody issues to concern yourself with it is easy to confuse what you want with what your child needs. However, if you can begin to look at your case from the perspective of your child and not think of the case as a competition between you and your co-parent you will be better off.
One of the most common reasons why child custody cases end up going to court is due to parents not being able to agree on the issue of conservatorship. If you are steadfast that you want to be the primary conservator of your child but have no experience being his primary caretaker then this could be an area where you are increasing the likelihood of a trial without having much of a chance to be successful in your case.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a Texas family law case.