Child custody cases are some of the most difficult cases that litigants, attorneys, and judges have to deal with. In any contested custody case, the judge only gets to see a very small portion of your life, limited by the rules of evidence and practical considerations, and based on that small sample, have to make incredibly impactful decisions. While the information below is intended on helping you to understand the process generally, it is extremely important to consult with an attorney regarding any child custody case. Attorney Saleem B. Mamdani is an experienced family law attorney, and has been certified and active as a mediator in the 8th Circuit since 2009 and as a guardian ad litem since 2010. Once you've read the information on this page, contact him to discuss how the law applies to your case, and how we can help you achieve your goals in your custody case.
Because custody cases are so important, and because each family is unique, the statutory law gives judges wide discretion and case law is extremely deferential to the judgment of the trial court. As with other issues in family law, the statutes give judges a wide variety of factors to consider in making their decision. This is where the knowledge and experience of a good attorney can be invaluable—helping to identify the factors that most favor your case and emphasizing those at the expense of those factors which most hurt your case.
Custody cases are also expensive. A fully litigated custody case will cost several thousand dollars and take at least several months to complete. In addition to the attorney's fees you will incur, there are mediation, third-party experts, and additional discovery that you may have to pay for. Therefore, before getting into a custody case, it is important to sit down with your attorney and have a frank and detailed discussion about the strengths and weaknesses of your custody case so that you are as informed as you can be before jumping into a custody case.
In addition to practicing family law since being admitted to the bar, I have also been a certified mediator since 2009 and a certified guardian ad litem since 2010. My experience as an attorney, mediator, and GAL helps to inform my clients about how their case will be seen. When you're in the middle of a custody fight, it can be hard to be objective about your own case. You can use my experience to get a better sense of the strength of your case, so that you can make an informed decision about how to proceed with the custody issues in your case.
If you have a contested custody case, one of the first things you will do is prepare a parenting plan. Your parenting plan has to address a variety of topics, most important of which is setting a schedule for each parent with the children and determining who makes the significant decisions for the children in the areas of healthcare, education, religion, and extracurricular activities. Your parenting plan can also help to address some of the smaller issues that create friction with coparenting. For example, a parenting plan can clarify who is responsible for getting extracurricular schedules, and who provides transportation for parenting time exchanges.
You will also have to participate in mediation. Mediation is a mandated procedure where you will meet with a third-party mediator along with the other party, and attempt to resolve your child-related differences. Attorneys almost never participate directly in mediation, and that is by design. The hope is that through mediation, you and your co-parent can discuss the differences you have and come up with a compromise that works for you, without the influence of your attorneys clouding the issue.
Many attorneys overlook mediation as an opportunity. Generally speaking, the mediators you deal with will be attorneys. As attorneys, mediators are just as competitive as any other attorney. While the goal is generally to facilitate your communication, there are few mediators who do not feel a sense of accomplishment when they assist couples in coming to a agreed upon resolution. Therefore, if you are properly prepared for mediation and know how to get the mediator “on your side,” you can give yourself the best opportunity to achieve an advantageous compromise of your contested custody issues.
Assuming that mediation is unsuccessful, the judge will then have to decide whether or not to appoint an attorney or psychologist third-party expert. In Adams County and the 8th Circuit generally, judge typically appoint attorney representation for the children. While there are other roles (attorney for child or child representative), the most common role for third-party attorneys is as a Guardian ad Litem, or GAL.
A GAL is appointed to represent the best interests of the children. He or she will do this by interviewing or observing the children, interviewing the parents and potentially other witnesses, and reviewing relevant documentation. Besides investigation, a GAL also has the role of facilitating settlement between the parties. Most GALs are experienced family law attorneys, and they can sometimes help facilitate settlement by providing an objective assessment of a party's position. In every case, the GAL will then file a written report with the court and may be called as a witness to testify to their report and investigation.
In many cases, a GAL's report has a strong effect on facilitating settlement. Any experienced family law attorney will tell you that a GAL's report is going to have a significant impact on a judge's ultimate decision in a custody case. Judges don't defer to a GAL's recommendation, but they do know that the GAL is an experienced family law attorney who has had a much greater opportunity to observe the relevant parties and review additional documentation that a judge may never get to see. So when a Judge reads a GAL's report, he or she is going to take that report very seriously.
If the GAL's report does not induce a settlement, then the final step in your case is to go to trial. At a custody trial, children will generally not testify. Testimony in a custody case can be very traumatic for children, and that is one of the primary reasons that a court will appoint a GAL. The GAL can speak with the children and tell the judge what the children want without putting them through the trauma of testimony in court. At a trial, both parents will testify, along with any witnesses each parent wants to call. The judge will weigh the evidence and then either announce his or her decision in open court or will take the case under advisement and issue a written decision in the future. Contact us online or by calling 217-641-2807.