Child Custody Trials in New York: Tips for Preparing

If you and the other parent are unable to settle custody disputes, your case will go to trial.

A trial (also called a fact-finding hearing in family court) gives you the opportunity to present your argument and evidence to the judge so he or she can determine custody and visitation orders.

Preparing for trial

If you have an attorney, they'll guide you through the process of gathering evidence, which should begin well in advance of your trial. If you're representing yourself, use all the resources at your disposal.

Look for weaknesses in your case that can be strengthened through evidence or witnesses, and decide what you'll focus on in your time to speak. Focus on the issues identified in your original request for a court order. The judge cannot consider other issues.

All witnesses must attend the trial. Other acceptable evidence includes:

• Logs of interactions with the child or other parent
• Photos and videos that show you with your child
• Medical records
• Report cards
• Other documents or items that support your argument

Submit copies of all documents to the judge beforehand, and bring extra copies with you. Also, bring copies of your court filings and any orders against the respondent.

Make sure all your evidence meets the requirements in the New York State evidence code.

Some judges require you or your attorney to sit down with your witnesses to discuss what will happen in court. Even when not required, this is highly recommended to help witnesses remain honest and calm when questioned by the other side.

During the pretrial period, don't discuss your case on social media. Avoid any behavior the other parent could use as evidence against you.

Scheduling and timing

A trial is scheduled after parents fail to reach settlement in their appearances or conferences. The wait time depends on the court's schedule, how much discovery takes place and whether a forensic custodial evaluation is required.

In supreme court, often three months will pass between your preliminary conference and trial. Family court tends to have more appearances and a busier court calendar, so the wait may last longer.

Don't be surprised if your trial date gets moved, due either to the judge's schedule or requests for more time from either parent.

The trial itself may last one day or many days (not always consecutive), depending on your case.

Procedures

Parents and their lawyers sit before the judge. Family, friends and the viewing public sit behind, in the gallery.

Other people who may attend include the court officer, court clerk, stenographer, court attorney, attorney for the child, guardian ad litem and interpreter. Custody trials do not have juries.

Trials are open to the public, except in rare cases when the judge decides otherwise.

You should not bring your child to trial. If you need childcare, ask whether your courthouse provides this service. Family courts in New York City, for example, provide free care for children while their parents are in session.

You may start the trial with an opening statement, but it's usually unnecessary because family judges tend to be familiar with cases. Opening statements shouldn't argue points but briefly lay out testimony, exhibits and other evidence to come.

Next, the petitioner (family court) or plaintiff (supreme court) questions their witnesses and presents evidence. Witnesses, including the parents, are sworn in before questioning.

When a parent has legal representation, they're questioned by their attorney. Otherwise, they take the stand to tell the judge what they're seeking and why.

After each witness testifies, the other parent or lawyer has the opportunity question (i.e., cross examine) them.

While one side is cross examining, the other side can object if they believe a question is inappropriate. The judge then replies either with "sustained," meaning they agree the question is inappropriate, or "overruled," meaning they'll allow the question.

Redirect or recross examination allows the original questioner to interview witnesses again to correct any misunderstandings resulting from cross examination.

After the petitioner or plaintiff rests, the respondent (family court) or defendant (supreme court) has the opportunity to present their case, repeating the same process.

Lastly, if there's an attorney for the child, they have a turn to call witnesses and present evidence on the child's behalf.

To close, each parent (and the attorney for the child, if applicable) makes a closing statement to summarize their main points.

In some cases, the judge wants to hear from the child in a Lincoln hearing before reaching a final decision. This hearing takes place on a day separate from testimony, and parents and their attorneys cannot attend.

If there's no Lincoln hearing, the judge usually issues a decision immediately after closing arguments.

The judge then writes their decision up as a final court order. Once signed, it replaces any temporary orders in the case. Your options for changing an order include applying for a modification and appealing to a higher court.

Tips

• Attend other trials before your own, especially ones with your judge.
• Arrive early.
• Dress neatly and conservatively.
• Do not bring your child.
• Know your child's teachers, interests and other information to show your involvement in their life.
• Treat everyone with respect.
• Address the judge as "your honor" and lawyers as "Attorney [Last Name]", "sir" or "ma'am."
• Tell the truth, and encourage your witnesses to do the same. Perjury, or lying under oath, is a criminal offense.
• Don't be too friendly with witnesses who are supposed to appear unbiased.
• Only speak when you're asked to.
• Do not provide more information than necessary.
• Ask for clarification if you don't understand a question, and admit when you don't know an answer.
• Keep a level head. Avoid getting overly emotional during testimony or after the judge announces the decision.

Staying organized

Going to trial over custody and visitation requires serious organization.

You'll need to present evidence, which could range from messages with the other parent to a calendar showing when you care for your child. You should also present a proposed parenting plan and schedule to the court.

The Custody X Change app lets you create and manage all of these elements in one place.

With parent-to-parent messaging, personalized custody calendars, a parenting plan template and more, Custody X Change makes sure you're prepared not only for trial but for every step of your case.

Take advantage of our technology to get what's best for your child.