In most jurisdictions, a custody battle is expected to take at least a year from when one party files the initial custody complaint to the day of your trial (assuming you cannot settle your case sometime before that). This long, drawn-out process is partly because, in most jurisdictions, there just are not enough resources to get through the massive backlog of cases any faster.
However, the slow timeline is also partly by design. The court system desperately wants you to settle your custody battle without ever going to trial. Ask anyone who has experience with the system –attorneys, judges, other parents – and they will all tell you the same thing, which is, “The last person you want deciding your custody agreement is a judge.”
This is perhaps the most important thing to learn from Jessica and me. No judge cares about you and your unique family situation as much as you and your co-parent do. No judge will ever be able to craft a proper parenting plan that is as detailed as you want. No judge will agree with your entire point of view, no matter how right your position is. And no judge will be able to solve the ongoing problems that you are sure to encounter.
Hence, the drawn-out litigation timeline almost feels like someone designed it to test your patience. It slow walks you one step after another, with weeks or months in between steps, down the long road to the worst-case outcome, which is an expensive, stressful trial where no one really wins. At every stop on the path to trial, the system attempts to push you closer to a legal settlement. A settlement means coming to an agreement with your co-parent before going to trial, and it is almost always preferable to a trial.
Settlement can be confusing to people. It works like this. One parent initiates the court process because they want to formalize the custody, visitation, and child support payments. The other parent either agrees to the terms that the first parent proposed or not. Even if you both agree on everything, you still need to go through the legal channels to formalize the agreement.
You might think, why bother going through the formal legal system if we agree on everything? Remember, just because you get along well doesn’t mean you will for the next eighteen years. And, no matter what, your child deserves to have both parents legally recognized, so it is important you get this taken care of the right way.
If there is agreement on the issues, the attorneys draft what’s called a “parenting plan” and submit it to the courts for approval (more on parenting plans here). As long as the agreement fits within the judge’s definition of “reasonable,” then he will stamp the plan with his approval, and the co-parents go on their merry way.
However, if there is not agreement on all the issues, and there is usually not, then you will start down the long and expensive road to a trial where eventually a judge will hear both sides and decide on custody, visitation, and child support. The problem is, by the time you get to a trial, you will have spent a fortune in legal bills, you will be stressed out beyond belief, and in the end, the judge will not give you the results you wanted.
Even if you “win” your trial by getting the custody or visitation you asked for, there will not be the level of detail that you hoped for in the ruling. You will continue arguing with you co-parent over little things like “where do we meet” and “what about holidays” and other such issues that the judge did not address but which come up in life frequently. There is no jury in these cases, so your fate hinges on the whims of one person who has heard it all before and very likely does not think your big issues are nearly as important as you do. Hopefully, the judge isn’t feeling cranky for any reason on the day of your trial.
So, if you really want to save money and months of anxiety and get a better outcome, then have your co-parent read our book and learn the meaning of the word compromise. If you each compromise early in the process, then you can wrap everything up without paying your lawyers for more than a few hours of drafting and filing paperwork with the court.
If your attorneys are good at their jobs, they should encourage you to compromise and take steps towards settlement, as our attorneys did. If you find yourself with an attorney who is pushing you to trial, then you should be questioning if they are more interested in what’s best for you or what will lead to the most billable hours for them.
Perhaps a list is the clearest way to show what you should expect. Although each state will have its own legal timeline and terminology, most of them all share common steps. Your lawyer can help you with the details in your jurisdiction, but here are the:
Litigation steps in generalized terms:
1.) During the pregnancy, find a lawyer and do some background research to make sure you understand the basics about custody laws in the state that applies to your situation. Read our book and encourage your co-parent to read it!
2.) Get through the birth. Focus on the baby and mother’s recovery for at least a few weeks. Legal actions don’t need to start right away, but it is a long process, so don’t wait too long either.
3.) Sometime in the first few months of the child’s life, have a serious heart to heart with your co-parent about custody issues. Tell your co-parent that you want to get the custody and child support payments formalized for the child’s sake and that you don’t think there is any reason that there needs to be a legal battle of any kind. Tell your co-parent you want to pay (or receive) the standard child support amounts calculated by the state (no more, no less). Hopefully, if both parties are reasonable and mature, this conversation ends with something like, “Ok, I’ll tell my lawyer to call your lawyer, and they can work out the details.”
4.) Get the legal ball rolling in the first few months of the child’s life, right after your heart to heart talk. Child support payments do not start to accrue until one party files the initial paperwork with the courts, so if you are on the receiving end, you will want to start that clock. But another reason is you just don’t want years to go by before deciding to ask the court for parenting rights. Waiting that long begs the question, “why did you wait so long to protect your rights?”
5.) The legal process starts when one party’s attorney draws up the legal petition for custody and files it with the court. Assuming you are not yet in full agreement with your co-parent on custody terms, the paperwork that gets filed is simply a document that says, “my client wants joint legal custody, standard visitation rights, and standard child support,” or whatever you and your lawyer decide is reasonable to ask for. Your lawyer will guide you through the details here.
6.) The court approves and returns your petition a few weeks later, but it is not yet active until you officially serve the petition to your co-parent. To “serve” someone a legal petition typically means that someone other than the party filing the complaint (someone other than you) must physically hand the envelope with the petition in it to the defendant (to your co-parent) and then sign an affidavit stating that they have done so at this time and place. It is usually acceptable to serve the documents to your co-parent’s attorney if they are willing to accept them.
7.) Once the petition for custody has been served, the clock starts ticking towards a trial, and child support payments begin to accrue, meaning the paying parent will owe support as of this date. From here on, each state can vary in how they do things. Still, it is safe to assume there will be at least two or three court hearings (appearances), each several months apart before you get a trial date that is probably about a year after you first served your co-parent the legal compliant.
8.) One of the first hearings you will attend is designed to take care of any pressing problems that cannot wait for trial. In Maryland, it was called a “Pendente Lite Hearing,” and it usually took place about three or four months after the initial filing of the custody complaint. For example, at this hearing, the court might insist on at least limited visitation if one parent did not allow the other to see the child at all. It might also insist on some minimum amount of child support payments to begin if there is clearly going to be support required later. This first hearing's point is to make sure neither party is being blatantly wronged or damaged by the other and by the long wait for trial. During my Pendente Lite hearing, the court granted me several hours of “unsupervised” time during my weekend visits to Maryland.
9.) Forced mediation sessions with a neutral third party trained to help you settle your case will likely be part of the court’s required steps to complete sometime before a trial. You typically do these without your attorney present. These sessions can actually be very beneficial. You should take them seriously and perhaps even push for more mediation time than the minimum required by the court if you find you are making progress. Mediators also charge by the hour but typically less than your lawyer, and you will get much more bang for your buck sitting with a mediator for an hour than with your lawyers.
10.) There will be a couple of months dedicated to “discovery,” which starts about halfway through the process when each party asks the other for just about every piece of information that might be useful in the litigation. The keyword is “might” because 95% of it is useless, but the lawyers must ask for everything to be thorough. We will discuss the discovery in more detail in a future post. For now, just understand that you will need to answer written questions called interrogatories and supply box after box of financial statements and other personal documents. If you make it to the discovery phase of the litigation, then you better have some cash on hand because this is where the legal bills start to grow exponentially.
11.) There are other steps the legal process will require, all designed to push you to a settlement without trial. In Maryland, I recall one of the hearings we had to attend was presided over by a retired family law judge. He listened to our lawyers state our differences, and then he gave us a twenty-minute lecture about how our child’s very life depends on us getting along better. He told a long-winded but heartfelt story about the co-parents of a teenager who refused to communicate and work together. The teenager told each parent that she was staying with the other parent one night, when in fact, she was sneaking out with her friends and getting into trouble. Because the parents refused to work together, they didn’t realize the danger their daughter was in, and tragically she died that night in some terrible way that could have been prevented if the parents had simply touched base with each other.
12.) There will likely be online classes the court requires you to complete. I remember several online courses I had to take about healthy co-parenting and childcare, all with various deadlines for completion before the trial. I also recall being forced to watch a video produced by the Maryland legal system that emphasized how terrible going to trial would be. It showed how the notion that many people have about “getting your day in court” is just not realistic.
Like many people frustrated by a co-parent or the legal system, I had this fantasy daydream of taking the witness stand and blowing the judge's socks off with my extraordinary evidence and tales of unbelievable injustice that I had endured. I imagined I could eloquently and passionately explain how wrong my daughter’s mother was all these months, and if I could just get him to listen to reason, then he would surely rule in my favor. And of course, I figured she would look like a fool when my attorney exposed all the terrible positions she held. Part of me looked forward to my day in court when “she would get what was coming to her.” Wrong!
This video that everyone had to watch made the point that your day in court is likely to go nothing like your daydream fantasy. In reality, you will spend a fortune on trial preparation. On the day of the trial, most of that preparation won’t even get used, but the bills will keep racking up as the hours tick by. On the witness stand, you will likely freeze up and not tell your story as well as you thought you would in your daydreams. On cross-examination, the opposing attorney will probably embarrass you or make you out to be something you’re not. In the end, the judge will figure both of you are bending the truth a bit, and he will not side entirely with either of you. You will end up with a vague ruling that does not solve all your problems but instead leaves you feeling unsatisfied, still angry, and with much less money than you had the day before. The video drove home the message, “Settle your case! Avoid a trial at all costs.”
13.) If the months keep ticking by without a settlement, you will eventually get to something called a settlement hearing or a pre-trial hearing. This is the court’s last attempt to push you to settle without a trial. The attorneys will explain where the differences are to the court. The judge will tell the attorneys to push for compromise one last time. In the next few days or weeks, you will have a trial if you don’t come to an agreement.
14.) With the trial date fast approaching, your lawyer will now start working around the clock on “trial prep.” My attorney explained that it’s better to delay trial prep as long as possible because you don’t want to pay for all that work if you end up settling a few weeks before the trial. Trial prep includes gathering up and organizing all the documents and evidence you will need, formulating arguments and lines of questioning for each witness, and anticipating what your opponent will attack you with. It’s a lot of work and stress once you realize the big day is right around the corner. People often come to their senses at this point when they realize they don't want to answer personal questions in a courtroom and that maybe all those people who said to “avoid a trial at all costs” were right.
15.) Trial day – sometimes multiple days. Jessica and I have never actually sat through a trial, so we will not pretend to be an expert on this. All we know is that you will almost certainly be better off settling than with a trial.
Both of us settled our case the week before the trial by writing a parenting plan and hashing out the final tweaks on the courtroom steps, literally just in time. I remember entering the courtroom with the settlement in hand (you have to submit your agreement to the judge for him to dismiss your case) and being so thankful that the stress of the trial was now gone. A courtroom is a nerve-racking place by design. We repeat: avoid a trial at all costs.
- Jessica & Jim
Disclaimer
Jim and Jessica Braz are not lawyers. While they have real-life experience in the issues discussed here, they do not give legal advice on this website. Furthermore, child custody laws, child support calculations, and family law, in general, vary from state to state. Be sure to consult an attorney in the appropriate state for your custody litigation.
Jim and Jessica Braz are not doctors. While they have real-life experience in the issues discussed here, they do not give medical advice on this website. Be sure to consult your doctor on your specific medical situation.
Jim and Jessica Braz are not licensed therapists, mediators, or counselors. While they have real-life experience in the issues discussed here, you should consult licensed professionals as needed.
The advice given on this website does not hold Jim and Jessica Braz legally liable for any adverse outcomes you may have from following their advice.
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