Monday, April 14, 2014

Child Custody: The Basics

Child custody cases (including divorces) are very complex.  Because of that, I can't explain all of the details of a child custody case in one article but I can provide you some of the basics.

Custody cases typically begin one of two ways: 1) as part of a divorce or 2) with a petition for custody to be determined.  If it is part of a divorce, it can either be heard in the Juvenile and Domestic Relations Court OR the Circuit Court.  If it is a petition for custody to be determined, the case will be heard in the Juvenile Domestic Relations Court.  The main difference is that if the case is heard in the Juvenile and Domestic Relations Court, your case can then be appealed to the Circuit Court for a new hearing and ruling.  See more on appeals here.

If you begin in the Juvenile and Domestic Relations Court, there will be a preliminary date set at which time both parties, you and your child's other parent, will appear in court to determine the issues and set the case for trial.  At this point, the judge may appoint a guardian ad litem ("GAL") as well (see more about the role of the GAL here).

If a guardian ad litem is appointed, the GAL will do an investigation over the coming months between your preliminary date and the trial date.  During this time, the GAL will interview both parents and meet with the child.  He/she may or may not interview extended family, doctors, teachers, etc. and may do announced or unannounced home visits to each parent's home.  The GAL will gain as much information as they deem necessary to determine what they will recommend to the judge as being in the best interests of the child.

At the trial date, the person who filed the petition for custody determination (or in Circuit Court the person who filed for the divorce) will first put on evidence.  For the evidence the judges typically consider when making their determination, see here.  Next, the other parent will put on evidence in support of his/her position.  Finally, the guardian ad litem may put on evidence and make a recommendation to the judge on how he/she should rule.  That recommendation is just that, a recommendation.  It is not the judge's ruling and the judge is under no obligation to follow the GAL's recommendation.  Finally, the judge will make the custody determination and issue an order spelling out the terms of the custody.

At that point, as noted above, you may be able to appeal your custody case to the next highest court.  While these are the basics to a custody case, the details can be very complex.  Typically, the sooner you retain an attorney in the process, the better off you will be. 

If you are going through a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or