If you are quickly approaching a trial in your family law case, or anticipate doing so, today’s blog post from the Law Office of Bryan Fagan should be especially interesting to you. Specifically, I want to share with you information that will impact your case if you are a father. Like it or not, men and women, mothers and fathers, often have different experiences associated with their family law cases. That is not to say that the law treats members of either sex different. What it does mean is that mothers and fathers often receive different information and have issues that face them that do not face the other.
First off, you may be curious how much time you will be allotted for your child custody or divorce trial. Depending on your type of case, a trial could last for a half day, a full day to even a full week at a time. Most trials take longer than half a day but come nowhere close to a week for a completion. You should ask your attorney how long he or she expects your case to take so that you can let your employer know of the expected length of your absence from work.
What happens in the trial? Nothing less than you and your attorney attempting to have accepted into evidence the most helpful information available to assist in the arguing of your case. Your spouse and their attorney will attempt to do the same. The judge gets to determine how credible, how impactful and how important the evidence submitted is. Make no mistake, you and your spouse are in the courtroom to lay all your cards on the table for the judge to see.
Since the length of your trial is not known in advance, most attorneys will choose to go with the most important evidence available so that the judge can focus on that and not less important information. Instead of spending a great deal of time going over testimony or documentary evidence that leads a judge nowhere, your attorney should focus on the evidence that helps bolster your case and weakens that of your opponent.
You and your attorney should plan any witness list well in advance of your hearing so that you can develop a strategy on when to call on that witness and what questions need to be asked of him or her. There is not a lot of time during a trial to figure these things out on the fly so if you can it is beneficial to have practiced your questions with that witness so that you can know what sort of answers he or she is going to provide. It is a good rule of thumb for your attorney to not ask any questions that he or she does not know the answer to already.
How will the courtroom look during your family law trial?
As far as how the courtroom will be physically laid out during your trial, you and your attorney will be seated next to one another facing the judge at a table. Next to you will be the same sort of table where your spouse and their attorney will be seated. The attorneys will stand from the table when addressing the judge or making objections to witness testimony or the question of the other attorney.
One thing that you can take heart in knowing is that it is unlikely that there will be a full gallery of people watching your trial go on. Yes, there may be people in the gallery who are watching the trial, but there won’t be many. Most judges clear out their docket for trial days so there should not be an overabundance of onlookers. Do not focus on these people. Your trial will speed by you if you do not pay attention and devote your focus to your case.
Who gets to present their evidence first in a family court trial?
Whichever party filed for divorce gets to present their evidence first in a trial. Witnesses will be called and evidence will be offered into the record in the form of exhibits. I say that evidence will only be offered into the record because it is not a given that this evidence will be considered by the judge. If you offer evidence, your opposing party may object to the introduction of that evidence based on a number of grounds. You may do the same to evidence introduced by your opposing party.
If your wife presents her case first, your attorney will have an opportunity to cross examine the witnesses that she presented during her case in chief. Your attorney will be able to ask these witnesses leading questions- questions that are intended to lead the witness to answering in a certain way. Note that leading questions are only allowable under the Texas Rules of Evidence when questioning an adverse witness. So, your attorney will not be able to help guide your testimony by asking leading questions.
Once your opposing party has finished presenting all of the evidence that she would like, it is your opportunity to present a case in chief. The same information that I provided you in the above paragraph applies to your case as well. Your spouse may have an opportunity to present rebuttal testimony after your case in chief has been presented in full.
Opening and closing statements are usually not presented in family law cases. The reason for this is that family cases are typically argued in front of family court judges rather than juries. Juries are more impressionable due to their relative inexperience hearing legal matters. However, a judge will likely have heard many, many divorce trials- many of which looked just like yours. As such, stirring arguments in opening or closing are likely to be less effective in a family trial than in other trial settings. Most of the information presented in a family trial is not overly complex, either.
Modifying a child custody or divorce order
Regardless of whether your divorce or child custody case settles in mediation or goes all the way to a trial, you will have an opportunity to change the order later on. It could be that the facts as they stood at the time of your trial or mediation were not conducive to your being named as the primary caretaker of your child or your achieving whatever goal you had set out for yourself.
However, circumstances change and with those change in circumstances come renewed opportunities to be able to accomplish whatever goals you have set out for yourself in conjunction with your family law case. For instance, if you want to win primary custody of your kids it may be your best bet to settle for as much time as you can win in your divorce case and then move to modify the agreement later on.
When it comes to modifications, you may not have the cards to win the game right now but if you stay engaged and don’t do anything that could harm your own case, the opportunity may come up later on for you to get done exactly what you wanted in your initial case. What exactly is a modification? Let’s examine that subject for the remaining sections of today’s blog post.
For you to be successful in your modification attempt you must be able to show a judge that there has been a substantial change in the circumstances of one of the parties to your case or in one of your children’s circumstances. This is pretty substantial burden for the filer of a modification case to bear. Not only must there be a change that you are basing your modification request on, but that change must be a very significant one.
The reason why courts do not want to make it easy for you to be able to go into the courtroom and change your original orders is that, especially when it comes to children, the court wants to promote consistency and stability. If you could go to court every year and change significantly the final orders in your case, that would present some pretty significant issues in your case. Rather, judges understand that stability for children is of the utmost important. As such, it is rarely a sure thing that your modification case will be successful.
Keep in mind that what courts also want to avoid having occur is a repeat performance of the trial from a few years back in your original case. Imagine being a judge and having to sit through the same material a second time around in a modification case. Courts will not allow you to relitigate your first family law case by presenting slightly different information for a second
Time needs to pass for you to be able to bring your modification case
Bearing in mind everything that we just finished discussing, it is important to note that you need to be able to let some time pass in order to be able to bring forth a modification case that can be successful. Substantial changes in circumstances usually do not occur overnight. As such, you should document these changes over time so that you can produce evidence that effectively proves your case and assists you in being able to substantial the allegations made in your petition.
Your children’s situation may change dramatically in the years following a divorce. Perhaps your child will become disabled or incur medical expenses that require an increase in the child support that you have pay. The opposite may also be true where your child’s impairments improve a great deal and the need for you to pay child support at previous levels is diminished.
Have a plan and execute the plan to succeed in a family law modification case
The key to this whole discussion is that if you are going to put forth the effort to bring a modification case forward, you need to be able to ensure that you have a chance at being successful. The time and money that it takes to bring one of these cases can be substantial. If you do not have the time, money or energy to initiate a case right now you should keep your powder dry and live to fight another day.
For instance, have you been keeping track of important events and changes in your child’s life? Have you taken on increased responsibilities when it comes to parenting your child? Have you taken advantage of every opportunity that you have been provided as far as seeing your child? Has your ex-spouse not taken her responsibilities seriously when it comes to raising your child? A substantial change could occur when you have improved your skills as a parent and your ex-wife has not taken her responsibilities seriously when it comes to taking are of you.
If you are like most people you will want to avoid ever having to come back to family court. In tomorrow’s blog post we will cover some advice for you to implement in your own life in order to do right by your child and not violate court orders related to your children and the property divided in your divorce.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered in today’s blog post please consider contacting the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great way to ask questions and receive direct feedback about your particular circumstances. Our attorneys take a great deal of pride in being able to represent men and women in our community just like you everyday in the courtrooms of southeast Texas. We appreciate your time and consideration and hope to meet with you soon to discuss your case and how our office can assist you in family law matter.