What Happens at the Initial Appearance in Child Custody Court?
By Beverly Bird
Updated December 15, 2018
The prospect of appearing in child custody court can be particularly unnerving. After all, you’re usually there so a judge can make decisions regarding the most precious thing in your life – your kids. Worse, you might have very little idea of what to expect when you get there.
Custody proceedings can follow different formats depending on your personal circumstances, but all typically include a first or initial court appearance. Sometimes this is the only appearance. In other cases, you might have to return to court again later. This can all vary from state to state and the exact nature of your custody proceedings.
Initial custody proceedings are often just a matter of the judge gathering a few basic and fundamental details about the case.
Understanding Custody Terms
First, you have to understand exactly what the judge is talking about and the legal terms that apply to what you’re asking him to order.
"Legal custody" is often awarded jointly to both parents, assuming they're both fit. It refers to the right to make important decisions on behalf of your child. This doesn’t include things like what time he goes to bed at night – that’s left to the parent he’s spending that particular night with. It includes things like educational, medical and religious decisions. It might include an issue like whether your teenager is mature enough to have her own car. Legal custody refers to the big stuff.
"Physical custody" relates to which parent the child lives with most of the time. Joint physical custody means he’ll live with each of you on a roughly equal schedule.
If your child spends more time in one parent’s home than the other’s, a parenting plan is required. This lays out terms for what used to be called “visitation,” but is now more commonly referred to as “parenting time.”
Custody Proceedings When You’re Not Seeking a Divorce
If you and your ex were never married, or if you’re married but want to live separately without filing for divorce, you’re most likely facing a custody trial if you can’t reach an agreement on your own. This trial might involve just one long court appearance or a series of court appearances following an initial appearance. These secondary appearances are sometimes called “fact-finding" or “evidentiary" hearings. It depends on how complex your case is and whether you’ll be presenting witnesses and other evidence, as well as the rules and procedures in your state.
Physical evidence and oral testimony are not usually presented to the judge during the first appearance of multi-hearing trials. That typically comes later, in the fact-finding part of the proceedings. In some states, there might be a final “dispositional" hearing after the fact-finding hearing or hearings in which the judge will deliver her decision, or she might simply do this at the end of the last fact-finding hearing. It usually depends on whether she wants some time to review court transcripts and evidence first or if she already knows how she wants to rule.
Custody as Part of Divorce Proceedings
If you’re married and you want to divorce, the courts in all states require that custody terms for your children be included in your final divorce decree or judgment.
When parents live apart during the divorce process, which is often the case, one or both might ask the court to make a temporary custody order to put some rules in place for a period of time until the divorce is final. Permanent custody provisions would be included in the divorce judgment. If any aspect of the divorce is contested, including final and permanent custody provisions, those things would be addressed at a divorce trial. A custody trial would not take place in addition to a divorce trial.
Temporary custody terms are often decided in a single appearance before the judge. In many cases, the parents don’t say a word unless the judge questions them directly on a particular point. Your lawyers will do all the talking unless one or both of you don’t have a lawyer. You’ll then have to present the facts and issues of your case to the judge yourself.
This initial and only appearance for a temporary order might take place in a court room or in the judge’s chambers. The whole thing might take less than half an hour. If the judge feels that he needs more information, he might give you and your ex time to gather it, then schedule another appearance in a few weeks’ time before making a decision.
What Happens at That First (or Only) Hearing?
The first portion of a single court appearance, or the first appearance of a series of appearances, is not usually very stressful. The judge wants one thing and one thing only at this point: to make sure she has an accurate understanding of the case before her and that everybody's ducks are all in their rows.
She’ll make sure that both parents are present, and will want to know why if they're not. Was the absent parent made aware of the proceedings and the date of the appearance? Was he served with a copy of the petition or motion that opened the case? If one or both parents don’t have lawyers with them, the judge will want to know why. Are they planning to represent themselves? Do they need additional time to get an attorney? In this case, the appearance would most likely be postponed or “adjourned” for a period of time, even if it’s a one-time hearing for a temporary order as part of divorce proceedings.
Finally, the judge might want to know the current status of the children. Where are they living now? When do they see their other parent? Is it possible that the parents can reach an agreement between themselves or with the help of a mediator?
If that’s unlikely and the parents aren’t married or they’re not seeking a divorce, the judge will typically then schedule a custody trial or an evidentiary/fact-finding hearing. She might also schedule a management conference prior to the trial to ensure that everyone is ready to proceed on the scheduled trial date.
If the parents are in the process of getting divorced, the judge might proceed to take testimony and review evidence to issue a temporary order if mediation isn’t likely to be successful, or she might ask everyone to come back on a later date for a second hearing.
In either case, it’s not uncommon for a judge to order parents to attend mediation before things go any further, even if they don’t think they can reach an agreement. Courts generally prefer that parents reach their own custody terms.
- New York Courts: Family Court and You
- Maxwell & Van Ryn LLP: Procedure in a Child Custody Case
- Delaware Courts: Custody Overview
- FindLaw: Custody Considerations Step-By-Step
- Family Law Self-Help Center: The Custody Trial
- Nolo: Temporary Orders in Family Court
- DivorceNet: What’s in a Name? Child Custody Terms Explained
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.