In the latest installment of The Burden of Proof: a JC Law Podcast, our hosts Peter Crawford, Esq. and Tyler Lewis are joined by JC Law Supervising Attorney, Kelsey Diamond, Esq. to discuss all things child custody. Perhaps there is no other issue in family law more important than who has custody of the children. In this episode, we cover everything you need to know regarding child custody.

We begin by defining the different types of custody available to clients, and the importance of keeping the child’s best interest at the forefront. Next, we take a deep dive into the process of getting custody of your child, and the steps you should take. Kelsey Diamond Esq. then, details all the factors considered in custody cases. Finally, we cover violating and modifying custody orders, and parenting plans as an option for clients.

Custody cases are complex, and most people aren’t sure where to begin, and that’s where we come in. For a detailed discussion on the process of getting custody of your child, and the factors considered in this decision, tune into this week’s episode of The Burden of Proof!

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Episode Transcript:

Tyler: Welcome back to another episode of The Burden of Proof. I’m your host, Tyler Lewis, and I’m joined as always by Peter Crawford Esquire. Peter, how are we doing?

Peter: Good, Tyler. How are you?

Tyler: Good. Good. So, what are we kind of diving into today? I think child custody.

Peter: Exactly. We tackle custody with Kelsey Diamond, one of our supervised attorneys here at the firm who’s been here for about, what, two years now. She’s risen through the ranks pretty quickly. She’s handled some big cases. She’s done extremely well in the field, and she’s distinguished herself. So we thought we’d bring her on today and have her talk about custody.

Kelsey: Yeah. Well, thanks for having me, you guys. This is very exciting. Very cool to be here to talk about something that I and a lot of my colleagues deal with literally on an everyday basis.Custody is a real issue. It’s paramount. It’s demanding, and it requires a lot of time and careful attention from both the parties, clients, and attorneys. So, it’s very important, to know about custody and the law and how to apply that law to your case. So I’m glad to be here. Thank you for having me.

Tyler: I mean, every every parent wants to know what they’re doing with their kids. So it And they becomes super important. So it’s definitely something we wanted to dive into.

Peter: I mean, it’s it’s a fundamental right. Right? I mean, before you even get into custody, there’s there’s two types of custody. There’s physical and there’s legal. But, I mean, both are just fundamental rights as a human being. Right? We have the right to bear children, and then we have the right to take care of those children. And then custody is concerning those rights. So, I mean, it’s a fundamental right that the court has to take care of that is innate to almost every human being here. So it’s very important.

Kelsey: No. I agree. I think that a lot of people forget the constitutional component about custody and just families in general. I mean, we have a constitutional right to parent, and it’s it’s enumerated in the constitution. It’s provided by our constitution, and it’s very it’s embedded in tradition. Families are very important in the American tradition of the things you would agree.

Peter: Absolutely.

Kelsey: So we have to make sure that we are employing the proper legal, you know, remedies for families when they are going through these very serious issues in their lives.

Peter: Absolutely. So what are the different types of custies custody that is available to people?

Kelsey: So you have legal custody, which is basically what decisions are you making on behalf of your child? What doctors are they seeing? Where do they live? What religion are they going to practice? Where will they go to school? What diets are they gonna be having? You know, we could get very intricate with legal decision making. And, I mean, it’s paramount in every day. I mean, we make legal decisions for our children every single day, without even really realizing it. The other, component is physical custody, and that’s where is the child going to be living most of the time? With dad, mom, is it gonna be a split situation? And when I say split, I mean completely down the middle fifty fifty people.

Peter: We go on week off situation.

Kelsey: There’s week on week off situations where, like, a lot of parties or families, they’ll have the child from, like, a Monday to Sunday type situation, and they’ll alternate with each parents. We could do a two two five schedule. I’ve seen that, very common recently where parties will have the child for two days at a time each, and then one parent will have the child for five days, and then that arrangement alternate. So it’s still equal parenting time, just the schedule’s a little bit more broken up to account for the child’s, you know, daily activities and their schedules.

Peter: So you think it’s more about the child’s activities and schedules or the parents’ like work schedules or both?

Kelsey: Definitely both, but when you are in practice, the you’re always thinking of what’s the best interest of the child. So when you have a child, you know, as a parent, you you have to compromise and you have to change some things. Right? And you have to sacrifice some things. So while that is recognized, we don’t expect parents to completely, you know, change everything they have to to make accommodations for their child. However, best interest of the child is a paramount concern, and the courts will always look at what is the child doing currently, what activities are they currently in, how can we maintain that status quo moving forward? Because we don’t wanna uproot the child. We don’t wanna change too much for the child because it’s not in the child’s best interest. I mean, if we think common sensically, we don’t wanna uproot a child and and change that child drastically.

Peter: Yeah. Absolutely. Your routine for anybody is important, especially young children who are growing, developing. If you either introduce somebody who hasn’t had custody before or introduce new people or new things, it may disrupt that routine and harm that growth.

Kelsey: Correct.

Peter: Yeah. So how do you actually get custody of a child? Let’s talk about the process a little bit.

Kelsey: Well, if you look at it procedurally, first, you have to follow the complaint with the court. Right? You can’t get relief unless you’re asking for it. So we have to meet with our clients, and we have to strategize a specific plan plan and specific arguments and positions to include in that complaint. Because, again, if you’re not requesting something from the court, the court’s not going to award you that relief. So, you have to meet with your attorney and very carefully discuss what it is, what your goals are, what it is that you’re seeking. Because if you’re not including that in your filing in the complaint, you’re not gonna get it from the court. So, procedurally, you meet with your attorney, draft the complaint, and get it filed. Then the court sets in multiple hearings. Doesn’t happen overnight. Okay? You’re not gonna get custody overnight, and that’s for good reason. There’s procedures put in place for reasons that are not, for discussion today, but there’s reasons why we have these protocols in place. And parties and clients get very stressed out when we tell them it’s gonna be a few months until we actually get in front of a judge. Yeah. I mean, and understandably so. I mean, some of these parents haven’t seen their children in several months, years, ever, really. So there’s a process in place. We have to file the complaint. The court sets in your hearing. It’s gonna take a little bit before you get in front of a judge. But, ultimately, when you do get in front of a judge, you’re gonna be arguing, at the final custody hearing What is in the best interest of this child? And moving forward, what custody arrangement is in the best interest?

Peter: So to me, when I think of the the time period for for trial, there’s two main things that come by. Number one is sometimes courts can be slow. I mean, there’s they’re backed up. Right? So I mean, there’s tons of custody cases gone flowing through the courts. And certain courts don’t just handle custody. They also handle divorce cases. They handle felony cases. They handle a whole plethora of different types of cases. They can be backed up, so sometimes it can be slow just just because of that. The second thing is you guys go through discovery. And that’s there’s a good reason it’s going to discovery. Right? Because we wanna understand the case in its entirety. The court’s gotta understand that. In order for us to do that, we have to request financial documents. We have to understand, maybe we have to order a custody evaluator. Now sometimes we gotta understand what’s going on with the the family and the kids, and we can’t actually do that to begin with discovery.

Kelsey: That’s Correct.

Peter: What, at least thirty to sixty days.

Kelsey: At least. So when the courts when you file your complaints and then you file the appropriate responses that are required by law, the court will set in your first hearing, a scheduling conference generally. And at that hearing is when we set the discovery deadlines. Generally, thirty, sixty, ninety days depending on where you are in the case. Some cases require us to propound our discovery requests immediately. We don’t have any time to waste. Those are more of the urgent situations that require immediate attention. Otherwise, some cases, we can wait a little bit, and then we can ask for a, longer discovery deadline. And I do wanna emphasize, discovery wins cases. Okay? I know we’ve heard that before. Right? Discovery wins cases. You cannot do we cannot do our job as attorneys in helping our clients and getting reaching their goals without conducting some form of discovery, Whether that be the general discovery procedures, whether it be subpoenas, depositions are a big piece of that. I mean, discovery wins cases. And if we’re not doing discovery, , then we’re not doing our jobs.

Peter: So we got, what, interrogatories, we got request for admission of facts, and we have request for production of documents. Right?

Kelsey: That’s correct.

Peter: So what do you think is the most important to most of your cases?

Kelsey: It again, it depends. Every case is unique. It is a very good question. I’ve never been asked this question before. But in generally speaking, I think interrogatories are a really great way to understand both your client’s case. Maybe there’s some things that your client is answering from the other side’s discovery request that you didn’t know about. So it’s a good way to learn more about your client’s case. And also, obviously, on the flip side, the other party’s positions and what the other party’s, arguments are and facts of their case. So it’s a really good way to develop, strategy. It’s a good way to gather information both on the defense and on the offense.

Tyler: So I think pulling from just what we’ve been talking about, the main importance is that client coming prepared, knowing exactly what they’re looking for, what they want.

Peter: Absolutely.

Tyler: Being able to relay that relay that to the attorney and then have the attorney go from there.

Peter: I think the best attorney is the most prepared attorney. Yes. Absolutely. Awesome. Most confident. If you go to court and you’re prepared, you’re confident about your case, you know your case, things go so much smoother than if you’re a prepared obviously.

Kelsey: Yeah. No. You walk into a courtroom, you know, you have to be confident whether or not you feel prepared, you know, and you’re always gonna have that feeling, you know, there’s always more that I I could have done, that I should have done. But if you know the facts of your case and you have prepped your client and your client understands what is to be expected at trial based on your professional expertise. Then you’re doing your job.

Peter: Absolutely.

Tyler: So I guess, just you’ve mentioned the best interest of the child. Kind of dive into what that looks like in the court. Like, actors yeah.

Kelsey: Yeah. So best interest. You’re gonna hear that ad nauseam by the end of this podcast. Right? So best interest is the paramount consideration when we’re talking about custody. Custody is about the children. It is not about the parents. Yes. Of course, it’s about the parents because without them, we wouldn’t have the child.

Tyler: How they fit into the situation.

Kelsey: Exactly. How they fit in, how they mold, and how they parent, really.And we’re looking at the character of the parents. We’re looking at the character of the parents. We’re looking at the fitness of the parent. Does the parent have a job? Does the parent live alone? Does the parent live with third parties? Is the parent, you know, an ex convict? Right? I mean, we look at all of these things. Does the parent have good intentions? Does the parent want to oust the other parent? Does it really care about the child? And it we can learn that pretty quickly on, pretty fast when meeting with our clients. But I mean, that’s all considered, character of the parents. We look at, when you’re talking about, like, joint custody, we look at whether the parents can communicate. Because we cannot put a child in a situation where the parents are just gonna argue and fight all the time. That’s not in the best interest.Right? So we look at whether the parents can effectively communicate regarding the well-being of the child. If they cannot, if there’s text messages proven or shown at trial that show that these parents cannot speak about anything. Then joint custody may not be the best option, and the court may be less inclined to move forward with that arrangement.

Tyler: I imagine communication is a huge issue. It’s one of those ones that keeps coming up because why would you be in this situation if if you weren’t able to effectively communicate that? So I think that’s a huge piece and something that, I mean, we all struggle with, but some more than others. And having a kid involved, it makes it ten times harder.

Peter: That’s really tough because, I mean, they’re going through a a breakup in a relationship. So, obviously, there’s issues where there’s a breakdown, and now you gotta be nice to the person. I mean, it’s it’s like total opposites of what you wanna do. But, I mean, that’s one of the first things I tell my clients when they come in and watch how you communicate with you as a party. I mean, the judge is gonna see that within a year, year and a half. Every text message, every email, act like a judge is gonna see it because he most likely will.

Kelsey: No. I’ve had cases where we’ve not necessarily lost, but we didn’t get what we wanted simply because of some text messages. Right? I mean, they can go a long way. The way you are communicating with the other parent is very important, especially if you want joint custody of your child. Mhmm. It’s the most important factor when you’re looking at joint custody.

Peter: Absolutely.

Kelsey: And in addition, there’s several other factors. There’s over twenty two well, there’s twenty two factors, custody factors. The last factor is any other factor. So in practice, there’s an infinite number of factors when you’re looking at custody. So those are just a few examples, but the most important ones are the best.

Peter: Yeah. That was it. Absolutely. So what happens if you actually violate a custody order?

Kelsey: So when you violate any court order for that matter, you’re looking at, the contempt land. Right? Contempts. So you file a petition for contempt, arguing that the other party, violated the custody order and that this court should find that party in contempt of a court order. And you have to go through proceedings for that. It’s another hearing, but you have to do it. You have to be in front of a judge. You have to put forth your arguments. We obviously can help you with that and help our clients with that. We do almost every day. I mean, violating court orders is a very real thing. And some of these terms that are in these court orders are very intricate, and they’re easy to violate. And people violate without even realizing it. So contempt is very important. It’s something we handle a lot. It’s another case. We have to profound discovery in some contempt cases, if not most contempt cases. And then if the court does find that agrees with our arguments and finds that the party is in contempt, then they’ll issue an order of contempt. And if that party then thereafter violates that order, then we’re looking at criminal sanctions.

Tyler: Wow.

Peter: So last week, we’re actually talking about scutter of doubt of contempt. And how it’s kind of the only arm for the court to enforce certain orders, and how there’s some issues with it. I mean, obviously, it takes a few months to actually go through. And during that time, it the violation orders are still occurring. It’s not a quick solution. But on the other side, you had the fact that probably shouldn’t lock somebody up for this either because now you’re harming the child. So do you have anything to add to that or any thoughts on that?

Kelsey: So there’s an option. We have body cam attachments that we can have, the other party wear to make sure that they are complying with the order. We can use it as an intimidation factor too to say, like, look, if you don’t start doing this, this is what’s gonna happen to you. And they’re kind of I mean, there’s a court order. They were violating it. There’s an allegation. They’re kind of stuck with that, and there there’s really no getting out of that. Yeah. It kinda puts them in that bubble.

Tyler: So in terms of in terms of violating, court orders and especially, is do you see sort of more people doing it out of I just didn’t realize it? Or is it more out of spite to try to kind of get a get over on the other person?

Kelsey: I’ve seen both. And I’ve seen people violate court orders just because they truly believe it to not be in the best interest of their child. And some people some of our clients do have good arguments against that or for that. Right?

Tyler: And It’s not a perfect system.Right?

Kelsey: It’s not a perfect system.

Peter: That actually brings us to our our next questions of modifications. So we have an order put in place, and now somebody wants to modify. What’s the reason for modifications, and how can somebody actually accomplish that?

Kelsey: So when we are entering into court orders, I should preface with that, you know, children change. They grow up. They’re no longer kids. They become teenagers. And then, therefore, the needs of those children change. Right? So the courts recognize that modification of custody orders specifically, are warranted in most cases. So when you need to modify, for example, perhaps the parent got a new job, and now they earn more income. Or maybe they’ve lost their job and they don’t earn any income now, or maybe the child, you know, is engaging in different sporting activities and now it’s impacting the physical custody arrangement. You know, there’s so many things that can happen, warranting a modification, warranting a change. The issue with that is, not really an issue, but the legal standard is that the change must be a material change. Material is defined as any change that affects the well-being of the child. Again, very broad. Anything we can argue can affect the well-being of the minor child, but it has to be material. It has to be severely impacting the well-being of the minor child.

Peter: And does the change have to occur after the court order is put in place? Or can it be something that was contemplated before the court order was put in place?

Kelsey: So it would have to be after the court order is in place. Sure. Anything that is contemplated before any order is in place, you better make sure you bring that up to the judge at trial. Because once that order is put in place, anything that occurs, before the entry of the order is not, in dispute, not on the table for modification.

Peter: Awesome. Thanks. Yeah.

Kelsey: You’re welcome.

Peter: So the last thing I wanna talk about are parenting plans because custody orders are great. Going through the process is sarcastic. I’m saying great. But if they can reach the agreement themselves, should they do it and how do they do it?

Kelsey: If you can reach an agreement yourself, do it. No dispute. No argument. No attorney will ever tell you unless the terms are extremely unconscionable. Right? We’ll advise you of that. But if you and the other parent are able to communicate to that extent that you can come to an agreement, then do that agreement. Enter that agreement because if you go to a court, the judge doesn’t know you. The judge doesn’t know your child. They don’t know anything about you. In fact, you’re probably meeting this judge for the first time in your life. The judge has just laid eyes on this case yesterday. Right? So judges don’t know what your situation is. So if you and the parent can enter into an agreement together, you guys know your situations better than anyone else, better than I, better than you, Pete, better than any judge, then you should do that. I strongly advise. And courts will tell you all the time. I mean, I know you’ve been at hearings where judges, really encourage and empower parties to enter into agreements.

Peter: I went through closing. And after my closing, the judge looked at us and said, hey. You guys sure you don’t wanna agree to this? Like, we had already gone through the trial, and he was still like, I don’t wanna make this decision. I want you guys to make the decision. Are you sure you want me to make this? And, unfortunately, he still made the decision, but he still wanted us to make that decision, which I think is pretty insightful on how judges want parents to control their children. their lives, and their custody schedule.

Tyler: Yeah. Because at the end of the day, like, it’s your kid. Why leave it up to somebody else who just met the kid or maybe doesn’t even they don’t even know who they are.

Kelsey: I wouldn’t want that.

Tyler: Right. And It’s like if you can have if you can make that decision between you and that other party, you should go ahead and do it.

Peter: Absolutely.

Kelsey: And that’s also indicative of strong co parenting. So if you guys are kind of, you know, reluctant to discuss that, have that discussion with the other parent, just try it. If you can, try it because in that practice, you’re also learning how to better co parent. And that’s ultimately in the best interest of the child always.

Peter: Alright, Kelsey. Well, I appreciate you coming on.

Kelsey: Thank you, Pete. This is great.

Tyler: Thank you so much. Appreciate the time.

Kelsey: See you next time.

Tyler: Awesome. Yeah. So we will be we, we’ll be diving into to some other family law issues and some criminal defense in the coming month. So stay tuned for that, and, thank you for listening. Bye.

Kelsey: Thank you.