One of the interesting aspects of a child custody case in Texas is that the vast majority of the time parents like yourself will typically be able to avoid having to go to court in order to have their child custody case completed. I think the overwhelming majority of people believe that, once they file for divorce for a child custody case, that a judge will be the ultimate source of authority in their case as far as how questions are on custody are determined. This is a reasonable expectation based on what we hear from others and what we see on television shows and the movies.
In reality, this could not be further from the truth. The vast majority of divorces and child custody cases are settled by the parties before a child is necessary. Yes, it is true that you and your attorney will spend time preparing for a trial because to not prepare would be very foolish. There is a distinct possibility that your child custody case could be the exception that proves the rule and you very well may end up going to court for a trial or at least a significant hearing in your child custody case. However, you should not necessarily expect to do so and there are certainly ways to avoid this result. Before we jump into the meat and potatoes of today's blog post I wanted to take some time to talk about why it is you would want your child custody case to be settled through negotiation rather than determined by a family court judge.
The reality that you are facing in a child custody case is that you are responsible for doing your best to negotiate an outcome tier case with your opposing parent. This can be a difficult circumstance to stomach given that UN your child other parents are likely not on the best of terms. However, the paradox of a family law case is that you are going to have to not only negotiate with him or her during your child custody case but then you are going to have to put on co-parenting hats for after the case and begin to work as a team in raising your child in separate households. For most people, this is a significant challenge.
However, it is certainly a challenge that you must be up to the task of completing. Being able to make it through your child custody case by negotiating well with your spouse or Co parent is a great test for both of you to see how well you will be able to work together and parenting your child after the case. Keep in mind that your child custody case will be a relatively short period of time for you and your family. The vast majority of time that you all spend together will be not in the context of a family law case but will be spent raising a child together in the real world once your case comes to an end.
I can think of no better way to prepare for this then to develop a willingness and ability to negotiate with your Co parent during your child custody case. Not only will you be able to develop the techniques and habits required of effective co-parenting, but she will be able to avoid having to take your case before a family court judge and have him or her decide the outcome for your family. Let's spend some time discussing why it's important to avoid going to court in a family law case and then we can transition into how you and your Co parent may be able to go about doing so.
Don't let a family court judge determine the future of your family
when I talk about wanting to avoid going to court in a family law case I do so not to scare you if and when you actually have to do so. From my experience, family court judges are on the whole very fair and do their best in difficult circumstances. Remember that a family court judge comes into a case with little knowledge of any of the parties and almost no knowledge of any of the inner workings of your family. Of course, he or she may be able to make deductions or assume certain facts that may be in play but for the most part he or she has no idea of the day-to-day operations of your family.
With that said, by going to court you are asking this person with no knowledge of the intimate dealings of your family to make decisions that are in the best interests of your child. This is a significant request there all of us ask a family court judges and they do their best to meet that challenge and take it on head. However, the request that we make of family court judges to determine difficult and sensitive family related matters is still a great deal to ask. Make no mistake, your judge will do so if called upon, but my position is that you and your Co parent should always take on that responsibility before ever ceding that authority to a family court judge.
Almost without a doubt, you and your co-parent are in better positions to make decisions for your child than a family court judge is. Note that the court does not give the judge a perpetual authority to make decisions that are supposed to be in the best interest of your child. Rather, the judge will give up any authority to do so at the conclusion of your child custody case and will instead put your right to do so into a child custody order. This should be an indication that the courts, the state of Texas and your children are better off with you making decisions for them than a judge.
From the beginning of your case, it should be apparent that you and your co-parent are better positioned to make decisions for your child than the judge. Keep in mind that the judge will make decisions that are in the best interests of your child based on the information available to him or her. Now, think about all the circumstances of your life that could not fit into a one- or two-day trial. These are details that are critical to the well-being of your children and your family. Without the chance to insert them into the proceedings you all are leaving quite a bit out.
The information that is left out can make a difference for your family. If your child has problems in school, with their mental health, with a particular aspect of your home life then this needs to be made known to the judge. If you are not able to do so effectively in a trial, and the objective evidence in your trial does not make it apparent to the judge, that could lead to decisions from the judge that actually do not reflect the true circumstances of your family.
Another reason why you and your co-parent should focus on negotiations in your child custody case is that you can significantly cut down on the time and expense of your case by doing so. I am not telling you that the costs of your child custody case should be the most important consideration that you make. Obviously, the well-being of your child should be at the top of that list. However, your time and money are important as well and going into a trial can cause you to spend more of each.
It is not uncommon for the costs of a child custody case to go up significantly at the time of a trial. This is a reasonable expectation to have given that there are significant time commitments not only for you when you approach a trial but also for your attorney and their staff. The more time that your attorney’s office spends working on your case the more you will be billed. The more you are billed, the more money you will owe your attorney. This may be money well spent when your case is all said and done but you should be absolutely sure that this is the case before proceeding to a trial.
Unless you and your co-parent are absolutely unable to come together in order to settle your case, you should not move quickly towards a trial. Committing yourself to a trial before you have exhausted all opportunities to settle your case is a mistake. Attending mediation (at least once), engaging in honest discussions and negotiations through your attorneys and keeping in mind that your child’s best interests are at the heart of all discussions will greatly increase the likelihood that your case can settle ahead of a trial.
Another aspect to this discussion that family court judges are more likely to issue orders that are in line with very typical custody arrangements as far as custody and conservatorship is concerned. Meaning: if you want to institute anything that is atypical as far as custody, possession, visitation, access and child support it is in your best interests to do so directly with your co-parent. You all are better equipped to negotiate a flexible and unorthodox set of custody orders with your co-parent than you are to convince a judge that such a plan is in your child’s best interests.
At this point, you should have a better idea of why I believe that child custody trials are great to avoid in that our office strongly believes in the power of individuals to take their circumstances into their own hands and negotiate together. Again, this does not mean that we think that there will not be any problems in negotiating with your child's other parent. On the contrary, there can be problems that come up in negotiation that impact the parties and their ability to function together. However, I think it is well worth the effort to work on your negotiation skills during the divorce in hopes of having a favorable relationship after the case as well.
How to approach custody negotiations with a co-parent
First thing I always tell people when it comes to negotiating with child custody case is that we need to do two things the first thing you need to do is understand that your co-parent's perspective is just as important as your own. May not feel that way but understand that a family court will give your co-parent every opportunity in the world to voice their opinion and to make their positions known. If you spend you are entire negotiations thinking that your Co parent and their arguments have no merit, then you will likely find yourself in a trial.
We need to be able to put your own ego aside and understand that you're to parent likely has legitimate cause for having the opinions that he or she does. By the same token, your positions in the case may be based more so on your own optimism surrounding positions you are taking rather on the reality of your circumstances. Let me explain what I mean by that. You and your attorney should work together from the very beginning to determine whether or not your goals and objectives in the case are reasonable. It would be foolish for you to go into a child custody case believing that your positions are more realistic than they actually are. Doing so will harm you in two specific ways.
The first way that this could harm you is by discouraging your Co parent from negotiating with you. This could be done when your Co parent sees that your positions are not reasonable in their mind in are not based in the reality of that case. Imagine how difficult it will be 2 negotiate with the person who is operating based off of a different set of facts than you are. It is critical to the success of your case for both you and your Co parent to think about your case from the same perspective. For this reason, I would talk with your attorney early in your case about your goals determine how reasonable they are based on the specific factors in play for you and your family.
Next, if you never learn that you are negotiating from a position of unrealistic expectations it is likely that you two will become discouraged with the process and will become frustrated more readily then you ought to with the failures you are having in negotiating with your Co parent. I have seen clients in opposing clients literally and metaphorically throw up their hands in frustration at a lack of success initially in negotiating a set alarm to child custody case. However, this could be avoided if both sides simply understood the limitations, they had in negotiating with one another.
Depending on the circumstances of your case it may be in your best interest to request discovery from your coping. Discovery allows you all to learn more about the basis for the positions you are taking in the case and also to obtain information like documents, answers to interrogatories and other basic information that can make a great deal of difference in negotiation. If worse comes to worse the information you obtain in discovery and help you all prepare better for a trial.
Another useful tool that you and your co-parent can utilize in your negotiations is mediation. Mediation is a tool that allows both of you to engage in negotiation with one another in a structured environment with the assistance of an experienced family law mediator. This is important because not only will you have the perspective of your own attorney to rely upon you will also have the perspective of an experienced mediator and family law practitioner to help you problem solve your way through different issues in your case.
Mediation is really the secret sauce that helps so many parties avoid unnecessary and drawn out child custody cases. It is my personal experience that nearly 90% of child custody cases settle in full or at least in part during mediation. For this reason, your family court judge will likely require that you attend at least one session of mediation prior to going to a trial. When a judge finds him or herself ordering you back to mediation for a second time it should show you how even the judge acknowledges their own limitations in deciding what is in the best interest of your child.
Questions about the materials contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material presented 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 consultation six days a week in person, over the phone and via video. These consultations are great way for you to learn more about the world of Texas family law as well as about the services provided to our clients by our attorneys and staff.