Road-mapping your child custody case: a sequential guideline.

Any sort of lawsuit can be confusing if being in court isn’t a part of your regular experience.  This article will provide a brief explanation of the major steps involved with a child custody case.

STEP 1 – THE INITIAL FILINGS

Your case will begin with filing a petition for dissolution of marriage (divorce) or a petition to determine paternity.  For children born during marriage, child custody is resolved as part of the divorce case.  For children born outside marriage, child custody is resolved in a custodial paternity case.  The petition is the first document filed in the case, often referred to as a “pleading.”  A petition identifies the issues of the case and what your proposed resolution would be.  Once the other party to the case receives a copy of the petition, that party has 20 days to file an answer.  Oftentimes the answer will come with a counter-petition or counterclaim.  A counter-petition/counterclaim is basically a competing petition, at-odds-with the initial petition.  The answer notifies the court whether you admit/deny certain allegations and whether you agree with the other party’s proposed resolution.

It is very typical for parties to take a position they don’t actually intend to stick with as their initial position in the case.  For example, a lot of people put that they want sole custody of the children when they file a petition or answer.  However, many people will settle for joint custody despite what their initial filing states.  It is a negotiating posture to start high then work down to a more realistic outcome.

STEP 2 – TEMPORARY ORDER

Many cases will have an application for temporary order filed along with or shortly after the petition.  An application for temporary order asks the judge to decide what temporary visitation/custody/support orders should be applied.  A custody case can take a long time before resolution, so it is helpful to have interim rules for how time-sharing and decision-making should occur for the kids while you’re working towards a trial.  If the parties cannot come to an agreement for temporary orders, they will have a brief hearing before the judge on the case.  In Oklahoma County, you will not get very much time to make your case for a temporary order.  It’s a bullet-point type of presentation, or a “cliff-notes” presentation if you’re old enough to remember what those are.  Most often, witnesses won’t testify, and all evidence is presented or described by the attorneys.  This is known as an “offer of proof.”  A temporary order is just that: it’s temporary.  The judge can modify a temporary order anytime before trial and entry of a final order.

STEP 3 – DISCOVERY

“Discovery” is the process for obtaining evidence from the other party or third parties.  For the other party, you can serve interrogatories (written questions), requests for production of documents, and requests for admission.  Basically, this is how you would find out what evidence the other party intends to use at trial.  It’s also a way for you to obtain evidence for your use at trial.  Interrogatories are just questions, which must be answered in writing and under oath.  For example, an interrogatory might ask “why do you think joint custody is not appropriate for this case?”  The answer would guide your trial strategy because you would try and counter whatever reasons were offered.  Requests for production of documents would ask for copies of income records, property records, phone records or any sort of documents you could use as evidence.  Requests for admission ask the other party to admit or deny certain statements.  For example, a request for admission might ask someone to admit or deny that the person did not see his/her child at all in the year 2017.  If the other party admitted this allegation, this admission could be helpful to the party making the request.  Discovery can often be a very tedious process.  Gathering documents and information is time-consuming and monotonous.  Get ready, it’s worse than applying for a mortgage, but it’s an extremely important part of building a case.

STEP 4 – MEDIATION

Most judges in Oklahoma require mediation before the case can be set for trial.  Mediation is a settlement-exploring meeting with a mediator.  The mediator is someone trained in conflict resolution.  Sometimes the parties will be in separate rooms with the mediator going between rooms to relay offers and explain the position of each party.  In my opinion, the best mediators are lawyers with experience in the subject matter.  However, not all mediators are lawyers.  A mediator can tell one or both parties whether their position is unreasonable or if their position is likely to be adopted by the judge if the case went to trial.  There is no requirement to settle in mediation.  In fact, whether you settled or not, or how close you came, cannot be used as evidence at trial.  Once mediation concludes, the mediator will make a report on whether mediation was successful.

STEP 5 – PRETRIAL CONFERENCE

Pretrial conference is a brief meeting with the judge, usually a couple weeks before trial.  The attorneys will give the judge a preview of the case from each side’s perspective, and the judge may hear evidentiary motions or other motions.  In some counties, the clients are required to appear with their lawyers for pretrial conference.  The lawyers will discuss how much time the case will take at trial, and what issues remain in dispute.  As part of the preparation for pretrial conference, each party will typically prepare a pretrial conference statement, which outlines the parties’ positions and proposed resolutions for the final stage of the case.  Often the proposed resolution will be different from the position taken in the initial filings.  Typically, you must have all evidence prepared and organized for trial prior to the pretrial conference.  Evidence should be marked in the manner it will be used at trial, which means separated into numbered exhibits.

STEP 6 – TRIAL

If the case cannot be settled, then the only way to resolve the dispute(s) is by having a trial.  At trial, each party will call witnesses and introduce evidence.  Oftentimes, in a custody case, the parties will be the only witnesses.  Upon hearing the evidence, the judge will pronounce a ruling.  Typically, this will happen after both parties rest their cases.  Sometimes the judge will take the matter “under advisement” which means the judge wants to look at the admitted evidence, study his/her notes, and issue a later ruling after independent review and reflection.  Once a ruling is pronounced or issued, it is enforceable immediately.  This means enforcement does not require a formal, type-written version of the ruling.

STEP 7 – MEMORIALIZING FINAL ORDERS

After the judge pronounces or issues a ruling, the lawyers prepare a type-written Decree of Divorce or Final Order Determining Paternity.  Final oreders will include a Joint Custody Plan if the judge awards joint custody.  The orders will also include a child support computation and visitation schedule.  Sometimes, the lawyers and parties can’t agree on the proper wording for the judge’s ruling at trial.  In these situations, one or both parties will file a motion to settle journal entry which will be heard by the judge.  The judge will decide which party’s version is an accurate reflection of what the judge decided at trial.

STEP 8 – APPEAL

Once a type-written, final order is approved by the judge and filed with the court-clerk, a party has 30 days to appeal that judgment.  Appeals take a long time to resolve, sometimes longer than the case itself.  While your appeal is pending, the trial judge’s orders remain in effect.