If you are scheduled to appear at court for a custody and visitation hearing, this can be emotionally draining to you. Your children are the most important aspect of your life. A court will have the task of making a decision that will have an impact on your life and the lives of your children.
If your hearing is in Riverside or San Bernardino county, you will be ordered to mediation prior to having a hearing on custody and visitation. I often tell my clients that your case is won or lost at mediation. At mediation, there will be a mediator to assist you and the other parent in coming up with a parenting plan. If you two cannot agree, the mediator (in Riverside and San Bernardino counties) will make a recommendation to the judge. The recommendation is highly considered at the court hearing. Thus, you want to ensure that you have all your apples in a row at mediation to ensure that the mediator understands all your concerns.
Please note that Los Angeles and Orange counties are non reporting counties. This means that the mediator will NOT make a parenting plan recommendation to the court. However, mediation is still a great way for the parents to try to agree on a parenting plan that is in the best interest of their children. If the parties cannot agree on a parenting plan, the judge will make temporary custody and visitation orders after allowing both parents to argue their case.
1) If you are the responding party to the custody motion that has been filed, it is good practice to file your response detailing your concerns at least five days prior to the mediation. There are times that a mediator will review the file prior to the mediation appointment. If you have a response on file, this will give the mediator an opportunity to hear your side of the story prior to mediation.
2) You want to ensure that you are on time to your appointment. You should arrive 15 minutes prior to your appointment.
3) When filing your paperwork with the court, be as specific as possible when discussing your concerns. You may want to attach signed declarations from other parties who can substantiate your concerns. The declarations should be signed under penalty of perjury and should be specific as to events and conduct. These declarations may offer insight as to what is going on with your children. You should attach to your motion other forms of evidence that will help prove your case such as emails from the other parent, and emails from you to the other parent. This is just one example of evidence. Emails are paper trails and could be used to separate the he said - she said. If the other parent has not been involved in your child's for a a significant period of time, you may want to request that the other parent have a step up visitation parenting plan. In essence, you are asking that the visitation plan start with a minimum amount of time and then over time, it will increase (contingent upon the other parent showing consistency in his/her visitation with the child).
If there is evidence to suggest that it is unsafe for your child to be in the care of the other parent without supervised visitation (someone such as family member or a professional monitor supervising the visitations), you may consider filing for an ex-parte motion. An ex-parte motion is a motion that will be heard on an emergency basis. In Riverside and San Bernardino counties, it generally will be heard the day after the motion is filed with the court. In Los Angeles and Orange counties, it will be heard on the same day. You will need to contact your local court for the exact procedures for filing ex-parte motions with that court. This is a great way to get temporary custody orders immediately to protect your children. A future hearing will be set after mediation to allow the other parent to present evidence as to why the temporary orders should not remain as the order of the court. Examples of an unsafe parent is a parent who is addicted to drugs, alcohol or a parent who brings your children around people who are unsafe. If the other parent is physically abusive to you and your children or present an immediate threat of danger, you should consider filing for a restraining order. Depending on the county, restraining orders are often granted the same day or the day after the filing without a hearing. A future hearing will be set to allow the other parent to argue his/her case as to why the restraining order should not be granted on a permanent basis.
4) Before mediation, write down notes. You should have an idea as to what parenting plan you believe is in the best interest of your children and why. Also, your notes will ensure that you do not forget to mention anything to the mediator. It is good practice to outline your ideal parenting plan. However, you may want to have a back up parenting plan (one that you can you can live with and offer as an alternative). This can be a great negotiation tool. You will show the mediator that you are willing to work with the other parent.
5) During mediation, you should be courteous to the mediator and to the other parent. However, please ensure that your concerns are voiced at mediation. Try not to interrupt the other parent when she/he is speaking. Take notes so that you can address any misinformation with the mediator.
6) When pointing out reasons why you believe you should be the primary caretaker, you may want to focus on past and present history of domestic violence by the other parent, whether your work schedule allows you to be the primary caretaker, who the children are presently living with as well as the wishes of the children. These are only a few factors but you want to express solid reasons to support why your proposed parenting plan is in the best interest of your children.
7) Mediation is an opportunity for the parents to come up with an agreement. I tell my clients that it is always best for parents to agree than to allow a person that does not know your children make decisions for them. Try to keep an open mind in mediation and try to think about what is in the best interest of your children.
8) Days after your mediation, you will have a court hearing. Generally, the mediator's recommendation will be made available on the court day. However, you can request that the report be available prior to this date. The availability date will depend on that particular court and when the mediator will complete his/her report.
9) Arrive to court on time. Dress appropriately. Please do not wear tank tops, a cap or provocative clothing. You are there for your children and first impressions go far. I would recommend dressing in business casual clothing to stay on the safe side.
10) You will be given an opportunity to read the mediator's report before the judge hears your case. Once you read it, you will have to decide whether you agree with it, do not agree with or agree with only parts of it. Take notes with what parts you do not agree with with and why.
11) When the judge calls your case, he/she will ask whether you agree with the report or disagree with the report. This is your opportunity to explain to the judge whether you agree or disagree and why. If you believe that you will need an attorney, you can request at the hearing that the judge continue your case to another day to give you an opportunity to hire an attorney. A judge will generally grant you at least one continuance. However, the court may still make temporary custody and visitation orders that day but allow you to come back with an attorney to argue your case for you.
12) During your court hearing, do not interrupt the judge and be courteous to everyone including the court staff.
13) After the judge hears arguments from you and the other parent, he/she will make custody and /visitation orders.
14) Please note that custody and visitation orders are always modifiable if you show good cause to warrant a modification. Take notes as to why the judge ordered what he/she ordered. If the circumstances change where you believe the custody and visitation orders are no longer in the best interest of your children, you will need to file for a modification.
These are general practical tips for your custody/visitation hearing. You should consult with an experienced attorney to discuss the specific facts of your case. This guide does not establish an attorney client relationship and is for informational purposes only.
Good luck and I hope this helps!
Shauna M. Albright, Founder and Managing Attorney
Law Offices of Shauna M. Albright
Sign up to receive a 5-part series of useful information and advice about child custody law.