To many, Family Court is a foreign land with rules and procedures that remain a mystery until you actually go for a visit. While a trip to Family Court is not a vacation, being familiar with how the process unfolds will help make that trip a little more comfortable. What follows is a very generalized view of a child custody case from beginning to end. There are numerous complexities left out and potential litigants are advised to retain/consult with an attorney both before commencing an action and throughout litigation.
How does a custody/visitation case start? Either you or the child’s other parent/guardian will file a petition for custody or visitation with the Family Court in the county where the child has lived for the past six consecutive months. In the petition, the filing party will lay of the reasons why they think they should have custody of or visitation with the child. Forms for initiating a custody/visitation petition can be found here.
Once filed, the petition and a summons (a notice to appear in court on a certain date and time) must be personally served on the other party. Often the party who filed the petition will hire a process server to physically hand the papers to the other party; in other cases, the filing party can have a person over the age of 18 personally serve the other party. In either case, the process server or the person over the age of 18 will have to complete an affidavit of service to give to the filing party who will then present it to the court to prove the other party was served.
Next comes the first Court Date, also called a Return of Process date. At the first court date, the filing party will appear and inform the Court of whether or not the opposing party was properly served – this typically requires the serving party to produce a valid affidavit of service to submit to the court. If properly, the opposing party is expected to appear at this Return of Process date. Assuming proper service was made and both parties appear, the Court will then make sure each party knows why they are in court. Assuming they do, the Court will next ask if the parties wish to have attorneys. Each party is given the option to either hire their own attorney, see if they qualify for a free court-appointed attorney, or represent themselves. Once the issue of attorneys has been addressed, and absent any issue that requires immediate attention, the case will be adjourned for a Conference several weeks out.
At the initial conference, the attorneys and parties will lay out any issues standing in the way of a settlement so the Court can better understand the specific case. These issues range far and wide, from safety concerns about one parent, general lack of overall involvement, lack of information about a parent’s home’s suitability for visitation, or even an assertion that the child does not want visitation with a parent. In the event one parent raises a safety concern about another parent, the Court will often employ one or both of the following measures: supervised visitation and a home study.
If there is an assertion made about the child’s wishes, and the child is of an age where they can express their opinions regarding custody and visitation (typically 3+ years old), the Court will assign an Attorney for the Child (AFC) to represent the child. The AFC is duty-bound to advocate for the child’s position even if the child’s position is that he/she wants to live with one parent over the other because that parent allows them to play video games and eat ice cream for dinner. The AFC cannot substitute their own judgement simply because they think the child’s decision is driven by caprice or immaturity. The only time the AFC can substitute their own judgement for that of the child is if following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child or if the AFC is convinced the child lacks the capacity for knowing, voluntary, and considered judgement.
At the conclusion of the initial Conference, the Court may issue orders related to the above, as well as temporary orders regarding visitation, phone contact, location of child exchange, or any other logistical orders that need to be made. The parties will then be responsible for complying with those orders until the next court date, usually a Settlement Conference, several weeks after the initial Conference.
In between the initial Conference and the Settlement Conference, the parties will discuss the remaining issues regarding custody and visitation with their attorneys. During these conversations, it will likely become clear whether the case can be settled for an order on consent of the parties (a settlement agreement) or if the case will proceed to trial. The attorneys will also conduct negotiations between themselves in efforts to finalize a resolution or prepare for trial by exchanging evidence. Attorneys may ask their clients for evidence to support their case and it is very helpful when clients have this evidence organized in advance.
At a Settlement Conference, the Court will listen to any outstanding issues that are standing in the way of settlement. If the issues seem like they can be resolved in a short matter of time, the Court will likely give an additional conference date in the hopes a settlement can be reached by then. If the outstanding issues are too large or the parties are too far apart in terms of settlement, the Court will set the case for Trial. The vast majority of cases settle as parties usually prefer to come to an agreement about custody and visitation of their children rather than leave the decision up to a judge at trial.
At Trial, the Court will listen to evidence presented by both parties. This can be the parties’ own testimony, testimony from other witnesses, as well as documentary evidence or recordings. After all the evidence is heard, the Court will consider the facts under the “best interests of the child” analysis and render a written decision that specifies custody and visitation rights for the parties. This decision typically constitutes the conclusion of the case, unless there are grounds for an appeal. To learn more about what the Court will consider under the “best interests of the child” analysis, see our prior post linked here.