Should I Take My Custody Case to Trial?

If you find yourself involved in a custody dispute, there are two ways to resolve it: (1) negotiate an agreement with the opposing party or (2) take the case to trial and let the judge resolve the dispute.

In my experience, the parties in custody cases have a more difficult time resolving their matters than in any other practice of law. This seems to be due to the fact that a custody dispute is fraught with emotion, and normally, the litigants have very strong feelings about the outcome.

While being involved in a custody dispute is incredibly difficult, every litigant will be faced with the decision in the first paragraph (negotiate or take the case to trial). The following is a framework that can help you decide whether it is a good idea to take your custody case to trial.

Step 1: Figure out what you want

If you find yourself in a custody dispute, the first thing you need to do is a little bit of soul-searching to figure out what you want. You need to be honest with yourself about what you are capable of handling. You would be shocked to find out how many people don't do this and go to trial without a good idea of what they want. My suggestion is to be very specific as to the dates you propose to exercise custody, the location of exchanges, how you anticipate you can balance the schedule with your work obligations, etc. Once you figure out what you want and what custody arrangement you can handle, you can move on to the next step.

Step 2: Figure out what your chances are of obtaining what you want at trial

Once you have a good idea of the custody proposal that you want, you need to figure out what your chances are of obtaining that proposal at trial. This is where a consultation with an attorney could be helpful.

Custody laws across the country normally give the trial judge a lot of discretion to craft custody orders that they think are going to be in the best interest of the children. Because of this discretion, custody outcomes could differ substantially from judge to judge or county to county. Usually, if you explain your dispute to a local family law attorney (meaning a family law attorney that predominantly practices in the court where your case is), they will have a decent idea of how feasible it is to obtain the custody order that you created in Step 1.

Once you have an idea of your likelihood of obtaining your custody proposal at trial, you should move on to step 2.

Step 3: Figure out what the other side is willing to agree to

If you have an idea of the custody proposal you want, and you know the likelihood of obtaining that outcome at trial, then you should begin negotiating a resolution to your case. There are a lot of ways to approach this, and I won't get into strategy, but someone at some point needs to make an overture to settle, and you should present your proposal to the other side. 

If they agree with your proposal, then obviously, you have succeeded in resolving your custody case (congrats). If you haven't yet, then you should try to solicit the opposing side's best offer to resolve the case (this should occur naturally in the give and take of settlement negotiations). 

If the other side does not agree with your proposal, and you have their best proposal in hand, then you should move on to Step 4.

Step 4: Weigh your available options with your likelihood of success at trial

If you are on this step, unfortunately, the opposing party did not accept your proposal. If you have solicited their best offer, then you find yourself in the following position: (1) go to trial or (2) accept the opposing party's best offer.

When should you do (1) or (2)? This is the framework that I would suggest.

You should go to trial if your chances of obtaining your custody proposal at trial are high. You have little incentive (other than the cost if you use an attorney) to abandon your proposal and accept a custody arrangement you disagree if you are likely to prevail in Court.

You should accept the opposing party's best offer if you don't have a good chance of obtaining your custody proposal at trial. It doesn't make much sense to take your custody case to trial if you are certainly going to lose.

This covers 90% of custody cases. Occasionally, you will run into truly unique situations where your likelihood of success is a coin flip. In that circumstance, you need to weigh the cost and time of going to trial against your quality of life if you accept the other party's proposal. If you think its worth the time and expense, go ahead and try the case. You could win.