Family Law

Custody Disputes: What Can I Expect?

By Kristina Otterstrom, Attorney
Preparing for your custody case.

Custody Basics

The fact you're in the midst of a custody dispute means that you and your ex can’t agree on how much time each parent will have the kids. If you can't settle your case through mediation, you’ll need to present your case to a judge. A child’s best interests are central to any custody decision.

A judge will review several factors to determine a child’s best interests. Those factors include, but aren’t limited to:

  • each parent’s relationship with the child
  • the child’s emotional and physical needs
  • each parent’s ability to provide a safe and stable environment for the child
  • each parent’s physical and mental health
  • each parent’s financial situation
  • the child’s bond with siblings or half-siblings, and
  • the child’s wishes—if the child is of a sufficient age and maturity.

Child custody is a matter of state law, so the rules governing your case will depend on where you live. A judge may consider any factor that’s relevant to your child’s best interests. Ultimately, a judge wants to ensure that the child’s needs are met. This may be accomplished by awarding the parents shared physical custody (where a child lives) and legal custody (a parent's right to make decisions on the child’s behalf), or by giving one parent sole physical and/or legal custody.

How Can I Prepare For Court?

Your first time in court can feel like a daunting experience, but it doesn’t have to be if you’re prepared. Because a child’s best interests are paramount in a custody case, you’ll need to show how you’re able to meet the child’s needs.

You or your attorney will have filed paperwork or motions long before you reach the courtroom. Based on what you submitted to the court, the judge will hold a custody hearing to review additional evidence. You and your ex will both attend the court hearing, but your children should not come with you—judges don’t like to put children in the middle of their parents’ custody battles. Bring everything that supports your claim that you’re a fit and proper parent to have custody. For example, you should bring copies of your paystubs, your children’s report card (if applicable), and copies of any rental agreements or other proof that you are able to provide a room and a bed for your child.

Who Will Testify at the Custody Hearing?

Both you and your ex will testify at the custody hearing. Additionally, you should plan to bring any close relatives, friends or the child’s babysitters to the hearing. They may be asked about your parenting skills and the child’s overall well being. If someone important can’t come to the custody hearing, such as a teacher or grandparent, in certain situations a judge may allow you to submit an affidavit from that person. An affidavit is a sworn statement similar to what the person would have testified in court.

If a Guardian ad Litem (“GAL”) or custody evaluator has been appointed in your case, they may also be asked to attend the court hearing. A judge will consider a GAL’s or a custody evaluator’s testimony, but isn’t bound by it. If the custody evaluator recommends that your ex should receive sole physical and legal custody, a judge doesn’t have to award that type of custody arrangement. Click here for information on what you can do if you don't agree with the custody evaluationreport.

Prepare For the Worst, Hope For the Best

Unfortunately, even if you’ve done everything you can, your case might not turn out the way you’d hoped. Parents can reach their own custody agreement, but a judge may reject the parents’ agreement and come up with a completely different arrangement. The court’s job is to review or create a custody arrangement to ensure it serves the child’s best interests.

If you don't get the custody arrangement you asked for, it’s not necessarily because you or your attorney did anything wrong. A judge’s custody decision will hinge on the unique facts of your case. Most states don’t let you change a custody order for a certain amount of time—often 3 years. But once the time has passed, you can ask a judge to modify child custody, and you may get a different result.

Of course if your child's other parent poses a risk to your child's health or safety, you don't have to wait to ask the court for help. If you suspect your child's other parent is abusing or neglecting your child, you can ask for an emergency hearing for temporary custody.

Questions for Your Attorney

  • My ex promised to not fight me for custody, but now he’s demanding sole custody rights. Is there anything I can do?
  • My children want to live with me. Will they have a say in who gets custody?
  • How do I change my custody order?

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