When considering custody issues in a divorce, parents are often be tasked with creating a parenting plan that will last longer than their marriage! If you have been married 7 years and have 2 children, ages 2 and 4 years old, your parenting plan will be in place for the next 16 years! More than double the length of your entire marriage. You thought you were divorcing to get away from your spouse, but you may be co-parenting with them for a long time.
We create parenting plans for clients that take into consideration the twists and turns of life. If your plan doesn’t do that, you will be back in court trying to modify it, or you will be struggling to wear it like a pair of blue jeans that is 2 sizes too small. Parenting plans are worth doing it right the first time because doing it right will pay off for many years.
There are 4 basic stages to custody in a divorce, and the stages are important because different things are important at the different stages.
Stage 1 is probably where you are right now. You may or may not have an agreement that allows co-parenting. If you do have a workable agreement, that’s excellent, you are well on your way to a resolution. If you do not have a workable agreement, you will have some work to do, that that is okay too.
Stage 2 is a hearing for temporary relief. You may skip this option if you already have a workable agreement with your spouse. If not, this is a critical step in the process and will usually happen very quickly after filing because the issue will need to be addressed. You will go to court for the first time and present a condensed case to the court for why you should have some custody rights. The outcome of this hearing will have a dramatic impact on your case, so preparation is critical.
Stage 3 is mediation. You will want to work with an attorney who understands the process and can be creative. At mediation, you and your attorney along with your spouse and their attorney will work with a third-party-neutral mediator to help you come to an agreement on some or all of the issues in your divorce, including custody. This process is generally informal and is your best chance to control your own destiny by crafting a unique and flexible agreement that will serve the parties well for many years to come.
Stage 4 is trial. If you are unable to settle at mediation, the final option is to take your case to trial and let the judge decide. This happens in less than 5% (1 out of 20) cases. However, it is more common when one or both of the parties is representing themselves. Trial does not lend itself to the DIYer. You will want an experienced attorney at your side telling your side of the story to the judge and making sure there is plenty of admissible evidence that the court can use to rule in your favor.
Usually, the reason to go to trial is because one spouse is moving far away, like to California, and one spouse or the other will be having the children live with them the vast majority of the time because of the distance. In these situations where geography dictates that one parent will be the winner and one the loser, trial is often inevitable. Going to trial also means that you will likely get a rigid, inflexible schedule that the court determines. You will know when trial is necessary, and the good thing about it is that it resolves disputes once and for all.