Most divorces, even highly contentious ones settle outside the court. Today’s trial court judges do a great deal of case management, such as guiding the parties to mediation, appointment of GAL, and custody evaluations. These steps result in most cases settling on the parties terms. The trial court judge must of course approve any agreement, and will not approve one that is not in your children’s best interests, but typically those issues do not arise.
Only a small portion of cases actually have a contested trial on property issues or child custody. As such, there is not much general awareness of what occurs and what to do in this situation, a bench trial (before the judge—there is no right to a jury trial in a divorce case). This blog explores one aspect of this matter—what you as a party can do (or avoid doing) with/through your attorney to make your best case. Simple things help. Details matter. Here are the three tips for divorce litigants going to trial:
1. Making unfound allegations about the other parent:
Particularly in custody cases, common allegations such as, one parent drinks in excess. This statement may harm your case if you do not attempt to substantiate it. Every parent probably has some vice, but it is the extent to which it has any impact on the child(ren) that matters. Where such behaviors are problematic, there is almost always a way to corroborate this for the judge. If you do not, it may look like you are merely denigrating the other parent, which may speak to your status as a custodial parent. Be careful. Words have power.
2. Being “histrionic:”
This term has a psychological component, theatrical underpinnings by ordinary definition, and significance in a custody case. A parent who lists out every parenting shortfall, problem, or issues “since the beginning of time” is typically looked on as alienating behavior and why a parent may not be a suitable candidate in the court’s view for custody of the child(ren). While such lists do demonstrate power, they should be substantial (i.e., Johnny was unattended and broke his arm) versus petty (i.e., sally got a couple bug bites at the other parents house).
3. Tying it together:
Life does not occur on an orderly basis, it is messy, chaotic, and sometimes unexplainable in any given day. The human tendency is to explain it the same way, in a non-linear or stream-of-consciousness throught process. However, while it will make perfect sense to the parties (although they may disagree to it in some aspects), and perhaps the attorneys who have “lived the case,” it is unlikely the judge can assemble the pieces and weigh them appropriately without help from you. In other words, through summary in testimony (a sheet of paper admitted as an exhibit) or special findings (the same thing proposed to the court in a more detailed fashion at the end), it is important to show how all of the evidence (yours) fits together under the best interests standard.
This is the way to have the best outcome of the trial court weighing the evidence under the controlling law. We hope you find this blog post helpful. It is for general educational information. It is no intended to be legal advice or a solicitation for representation. This blog post was written by attorneys at Dixon & Moseley, P.C. who practice domestic law throughout the State of Indiana.