How to Change Child Custody in Texas
Consult with a lawyer., Determine if you have grounds to modify the custody order., Locate the appropriate court., Find the forms., Complete the forms., Prepare for filing., File your documents., Serve the other parent., Wait for the answer., Begin...
Step-by-Step Guide
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Step 1: Consult with a lawyer.
A lawyer can be a stable sounding board during a confusing and turbulent time.
Even if you can’t afford a lawyer, at a minimum you should meet with a lawyer for a free consultation.
Custody determinations are complicated and important.
A competent attorney is invaluable.
If costs are concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee.
Although not all states allow this type of limited scope representation, Texas does.If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance.
To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county. -
Step 2: Determine if you have grounds to modify the custody order.
Unless both parents agree, the court is not supposed to modify an order unless the change would be in the “best interest of the child” and one of the following applies:
There has been a substantial and material change in the circumstances of the child, a conservator, or other party affected by the order since the date of the order being changed, or The child is at least 12 years old and has expressed a preference for a conservator with exclusive right to designate the child’s permanent residence, or The conservator currently with the exclusive right to designate the child’s permanent residence has voluntary relinquished the primary care and possession of the child for at least 6 months for a reason not related to military service., In most cases, the court that issued the order being modified is the court that will need to hear the modification petition., Forms and instructions related to obtaining a modification in Texas can be found at http://texaslawhelp.org/resource/modification-kit.
To file your case, you will need to read all instructions and complete the following:
Modification Petition Modification Petitioner’s Supporting Affidavit (if the order you want to modify is less than one year old) Modification Petitioner’s Out-of-State Parent Affidavit (if another party lives in a different state) Modification Order Family Information The proposed order affecting any items you are asking the court to modify (Custody Rights and Duties, Possession & Access, Child Support, Medical Support, Income Withholding Order, or Order to Terminate Withholding)., To fill out the modification petition, you will need your child’s full name and birthdate, as well as address.
You will need the address of the other parent as well.
You should print off forms several days before filing them, to give yourself enough time to gather necessary documentation. , Sign the forms after completing them.
The petition and affidavit(s) will need to be signed in front of a notary.
You can find a notary at the Texas Secretary of State website.
Search by zip code or county.
Make 4 copies of all documents.
You should always keep at least 2 copies for yourself. , Give the original set of documents to the clerk of the court that will hear your case.
A filing fee will be charged unless you apply and qualify for a waiver.
The fee varies by county.
You can ask the clerk to stamp your copies with the filing date.
You may also need to ask the clerk for a “citation.”The citation is notice from the court that your lawsuit has been filed and commands the other party to respond. , If you both agree to the modification, then deliver a copy of the papers you filed to the other parent, along with a Modification Waiver form.
This Modification Waiver will need to be completed by the other parent, signed in front of a notary, and filed with the clerk.
If you are not in agreement with the other parent, ask the clerk to provide you with a “citation” when you file your documents.
The clerk can also arrange for the sheriff to provide the other parent with the documents.
There is a fee for service, and you will need to give the clerk one copy of the documents you initially filed.
If you prefer to pay a private certified process server, take the copies and the citation to a private process server and pay the appropriate fee.
Process servers can be found online.
Upon service, the sheriff or process server will complete a Return of Citation and file it with the clerk.The fee will vary by county.
In Collin County, for example, service of a citation is $75.00.In Delta County, the fee is $80.00.You should call ahead to the clerk and ask about acceptable methods of payment.
If you cannot afford to pay for service of process, then ask for a fee waiver. , Wait for the answer.
The other parent has until the Monday following 20 days from the date of service to file a written answer.You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received. , If you need to gather information or evidence to support your case in court, you will do this through a process called “discovery.”Read Section 9 of the Texas Rules of Civil Procedure to learn about discovery techniques and processes in Texas.
In general, you can require the other party or other potential witnesses to provide you with copies of documents, allow you to inspect items or property, or require them to answer questions under oath (in writing or orally).In a custody case, you might want to use Requests for Production to get access to the other parent’s medical records, bank records, or other financial documents.
There are no limits to the number of Requests for Production that you can serve.You may also want to use Requests for Admission to get the other parent on record about his or her conduct.
For example, if you think the other parent has a drinking problem, you can ask, “Admit or Deny that you get drunk once a week.” If the other party fails to respond, then the question is deemed admitted at trial., Depending on the issues in the custody proceeding, the court may order psychological/psychiatric testing.The purpose of the exam is to identify potential psychological disorders as part of a holistic analysis of parenting ability.
One common test is the Millon Clinical Multi-Axial Inventory, which is used to identify personality disorders using 175 true/false questions.It is natural to be defensive or self-protective when approaching a psychiatric evaluation.Try to stay calm and be yourself.
A judge is unlikely to require a psychiatric evaluation unless the parties can pay for it., The other parent may want to depose you.
This can be a stressful experience, especially if communication has broken down with the other parent and you anticipate his or her attorney might be hostile.
You will also be asked potentially embarrassing questions about your finances, your job, as well as your home environment and criminal history.
The attorney will be gathering evidence to use at trial.
A lawyer can help relieve some of the stress by preparing you for the deposition.
You should meet and raise areas of concern, particularly aspects of your life that would suggest you are not a fit parent.
Examples include felony convictions, domestic abuse allegations, as well as the lack of a permanent, stable home.
Your attorney should sit down for a mock deposition, during which she peppers you with questions.
Afterwards, you can discuss how to refine your answers.
Just the experience of going through one deposition prep could settle your nerves as you approach the real thing. , Either party can request mediation.
Alternately, the judge can order it without a request from either party.
While mediation is not a statutory requirement in a modification proceeding, it is usually ordered unless a party objects because of a history of family violence, or the parties convince the judge mediation has no reasonable chance of success.
In mediation, a neutral third party attempts to bring the parties to an agreement on the issues.
The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial.
If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court.
If mediation is unsuccessful, the parties simply proceed to court., Contact the clerk of the court to schedule your hearing.
The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for trial.
You must notify all parties.
You can do this by preparing a Notice of Hearing.
Ask the clerk if your court provides a form for this. , You may get the form from the court clerk.
A subpoena should assure the witness’s attendance at the trial.
The subpoena should be served by the sheriff or someone over 18 who is not a party to the suit.
If you decide to use the sheriff, then you will have to pay a fee.
The fee varies by county.
In Denton County, it is $70.00., If mediation fails—or if one party refuses to participate—then you should prepare for trial.
You need to think about what the other parent will argue as well as how best to make your case.
To find out the other parent’s strategy, take out a copy of the answer that was filed and read it.
In the answer, the other parent will list why you shouldn’t have custody.
Honestly self-assess.
This may be the most difficult part of seeking custody.
In a contested custody case, the other parent will use anything potentially embarrassing or damaging against you.
If you’ve had drinking, money, or anger management problems in the past, you should expect that those issues will be raised in a contested child custody hearing.
You should think about how to show that you have surmounted your prior problems.
If you have had charges (or convictions) for domestic violence, child abuse, sexual abuse, or drug abuse, then you should seek a lawyer’s assistance.
A lawyer will know best how to prove that you have rehabilitated yourself. , In court, you will need evidence to prove your assertions.
A bare claim that “I have turned my life around” will be unconvincing.
Revisit what you need to prove to change custody.
For example, you want to prove that it is in the “best interest of the child” for you to have custody.
You therefore need to identify evidence (documents or testimony) that can support your argument.
When considering the best interests of a child, courts consider several factors, including: the child’s desire, the emotional and physical needs of the child; the parenting abilities of those seeking custody, the stability of the home or the proposed placement; and any acts or omissions of the parents which may indicate that the parent-child relationship is no longer proper.Try to have at least one piece of evidence to back up every assertion you make at trial.
For example, to show that you have a stable home, you can introduce evidence that you haven’t moved in a long time and that you have stable employment.
To show that you can meet the emotional and physical needs of your child, provide documentation of how you will provide your child with medical care, as well as your continuing emotional bond with your child. , Throughout the case, you will need to make certain disclosures to the other party, and you should request these same disclosures if they are not made voluntarily.
These disclosures may include financial affidavits, witness lists, and a list of exhibits.
Failure to properly disclose prior to trial could result in your being prevented from introducing this evidence at trial., They may be found at http://www.txcourts.gov/media/921665/texas-rules-of-evidence.pdf.
Do your best to get a general idea of the rules.
The most important evidentiary rule you should know is the prohibition on “hearsay evidence.” Hearsay is testimony about a statement made out of court that is offered as the truth.
For example, the other parent may testify at the hearing that someone told her that you have money problems.
If that statement is offered as proof that you have money problems, then it is hearsay.
You can object and have it omitted from the record.
Another important evidentiary rule is the prohibition on “character” evidence, also known as “propensity” evidence.
This kind of evidence is offered to show that you are predisposed to acting a certain way on a specific occasion because you acted that way in the past.
For example, if the other parent argues that you were drunk when you last saw your child because you “have a history of drinking,” then that evidence is unacceptable propensity evidence.
The rules are complicated, and you might not understand most of them.
Given how nervous you will feel on the eve of trial, you might want to hire an attorney for assistance or instruction. , Give yourself enough time to get to court.
If you are unfamiliar with the courthouse or the parking situation, give yourself an extra hour. , Since you are asking the judge to give you full custody, you should look as professional and pulled-together as possible.
If you can wear a suit, then do so.
If you can’t, then wear clean dress pants and dress shirt.
If you can only wear jeans, then make sure that they are clean and in good repair.
Under no circumstances wear shorts, flip flops, tank tops, mini-skirts, or sagging pants.
If you need to borrow an outfit from a friend, then do so. , You or your lawyer will need to give the judge a roadmap of what the evidence will show.
The opening statement should be brief, but should summarize what evidence will support your claim for custody. , As the petitioner (the person seeking to change the custody order), you will present witnesses first.
The respondent (the other parent) will then have an opportunity to cross-examine the witnesses.
Do not ask leading questions.A leading question states a fact and then asks the witness to agree.
For example, “You never spank your child, do you?” is a leading question.
Instead, the lawyer should ask a series of questions such as “How often does your son misbehave?” “Do you punish him?” “How do you punish him?” Then the attorney can ask, “Have you ever spanked your son?” Ask witnesses to identify any documents you want introduced into evidence.
You must first elicit testimony that a document is what you claim it is before it can be admitted into evidence. , The purpose of cross-examination is to either discredit the witness or to minimize the testimony by showing that the witness is biased or lacking in sufficient knowledge to testify about the matter.
You can impeach a witness with a prior inconsistent statement.
If a witness ever praised you as a parent, then that statement can be introduced if the witness now claims on the stand that you are a bad parent.
If someone testifies that you and your child fight, then you can minimize the damage by highlighting how infrequently the witness sees you with your child.
Always try to remain calm.
If you feel anger overwhelming you, close your eyes for five seconds and breathe deeply. , You or your lawyer will summarize your case, explicitly linking evidence to the best interest of the child factors.
Counter bad facts as best as you can.
If you don’t have a clean criminal record, then concede that fact before highlighting the evidence that shows you have lived responsibly for the past several years. , If you prevail, then you or your lawyer will have to prepare an order.
Locate the appropriate blank form and complete it.
Make 2 copies.
If you disagree with the judge’s ruling, you have 30 days to file a Notice of Appeal.You should ask the clerk for the form and file it in the trial court clerk.
The filing fee for an appeal will be around $195.00.If you want to appeal, you are strongly encouraged to meet with an attorney.
The appeals process is complicated, with tricky deadlines and rules. -
Step 3: Locate the appropriate court.
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Step 4: Find the forms.
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Step 5: Complete the forms.
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Step 6: Prepare for filing.
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Step 7: File your documents.
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Step 8: Serve the other parent.
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Step 9: Wait for the answer.
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Step 10: Begin the discovery process.
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Step 11: Undergo a psychiatric evaluation.
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Step 12: Sit for a deposition.
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Step 13: Participate in mediation.
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Step 14: Schedule your hearing.
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Step 15: Issue subpoenas for witnesses.
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Step 16: Develop a trial strategy.
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Step 17: Draw up a list of witnesses and exhibits.
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Step 18: Make required disclosures.
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Step 19: Read the Texas rules of evidence.
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Step 20: Arrive promptly.
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Step 21: Dress appropriately.
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Step 22: Deliver an opening statement.
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Step 23: Call witnesses.
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Step 24: Cross-examine the witnesses for the other side.
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Step 25: Deliver a closing argument.
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Step 26: Consider next steps.
Detailed Guide
A lawyer can be a stable sounding board during a confusing and turbulent time.
Even if you can’t afford a lawyer, at a minimum you should meet with a lawyer for a free consultation.
Custody determinations are complicated and important.
A competent attorney is invaluable.
If costs are concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee.
Although not all states allow this type of limited scope representation, Texas does.If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance.
To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county.
Unless both parents agree, the court is not supposed to modify an order unless the change would be in the “best interest of the child” and one of the following applies:
There has been a substantial and material change in the circumstances of the child, a conservator, or other party affected by the order since the date of the order being changed, or The child is at least 12 years old and has expressed a preference for a conservator with exclusive right to designate the child’s permanent residence, or The conservator currently with the exclusive right to designate the child’s permanent residence has voluntary relinquished the primary care and possession of the child for at least 6 months for a reason not related to military service., In most cases, the court that issued the order being modified is the court that will need to hear the modification petition., Forms and instructions related to obtaining a modification in Texas can be found at http://texaslawhelp.org/resource/modification-kit.
To file your case, you will need to read all instructions and complete the following:
Modification Petition Modification Petitioner’s Supporting Affidavit (if the order you want to modify is less than one year old) Modification Petitioner’s Out-of-State Parent Affidavit (if another party lives in a different state) Modification Order Family Information The proposed order affecting any items you are asking the court to modify (Custody Rights and Duties, Possession & Access, Child Support, Medical Support, Income Withholding Order, or Order to Terminate Withholding)., To fill out the modification petition, you will need your child’s full name and birthdate, as well as address.
You will need the address of the other parent as well.
You should print off forms several days before filing them, to give yourself enough time to gather necessary documentation. , Sign the forms after completing them.
The petition and affidavit(s) will need to be signed in front of a notary.
You can find a notary at the Texas Secretary of State website.
Search by zip code or county.
Make 4 copies of all documents.
You should always keep at least 2 copies for yourself. , Give the original set of documents to the clerk of the court that will hear your case.
A filing fee will be charged unless you apply and qualify for a waiver.
The fee varies by county.
You can ask the clerk to stamp your copies with the filing date.
You may also need to ask the clerk for a “citation.”The citation is notice from the court that your lawsuit has been filed and commands the other party to respond. , If you both agree to the modification, then deliver a copy of the papers you filed to the other parent, along with a Modification Waiver form.
This Modification Waiver will need to be completed by the other parent, signed in front of a notary, and filed with the clerk.
If you are not in agreement with the other parent, ask the clerk to provide you with a “citation” when you file your documents.
The clerk can also arrange for the sheriff to provide the other parent with the documents.
There is a fee for service, and you will need to give the clerk one copy of the documents you initially filed.
If you prefer to pay a private certified process server, take the copies and the citation to a private process server and pay the appropriate fee.
Process servers can be found online.
Upon service, the sheriff or process server will complete a Return of Citation and file it with the clerk.The fee will vary by county.
In Collin County, for example, service of a citation is $75.00.In Delta County, the fee is $80.00.You should call ahead to the clerk and ask about acceptable methods of payment.
If you cannot afford to pay for service of process, then ask for a fee waiver. , Wait for the answer.
The other parent has until the Monday following 20 days from the date of service to file a written answer.You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received. , If you need to gather information or evidence to support your case in court, you will do this through a process called “discovery.”Read Section 9 of the Texas Rules of Civil Procedure to learn about discovery techniques and processes in Texas.
In general, you can require the other party or other potential witnesses to provide you with copies of documents, allow you to inspect items or property, or require them to answer questions under oath (in writing or orally).In a custody case, you might want to use Requests for Production to get access to the other parent’s medical records, bank records, or other financial documents.
There are no limits to the number of Requests for Production that you can serve.You may also want to use Requests for Admission to get the other parent on record about his or her conduct.
For example, if you think the other parent has a drinking problem, you can ask, “Admit or Deny that you get drunk once a week.” If the other party fails to respond, then the question is deemed admitted at trial., Depending on the issues in the custody proceeding, the court may order psychological/psychiatric testing.The purpose of the exam is to identify potential psychological disorders as part of a holistic analysis of parenting ability.
One common test is the Millon Clinical Multi-Axial Inventory, which is used to identify personality disorders using 175 true/false questions.It is natural to be defensive or self-protective when approaching a psychiatric evaluation.Try to stay calm and be yourself.
A judge is unlikely to require a psychiatric evaluation unless the parties can pay for it., The other parent may want to depose you.
This can be a stressful experience, especially if communication has broken down with the other parent and you anticipate his or her attorney might be hostile.
You will also be asked potentially embarrassing questions about your finances, your job, as well as your home environment and criminal history.
The attorney will be gathering evidence to use at trial.
A lawyer can help relieve some of the stress by preparing you for the deposition.
You should meet and raise areas of concern, particularly aspects of your life that would suggest you are not a fit parent.
Examples include felony convictions, domestic abuse allegations, as well as the lack of a permanent, stable home.
Your attorney should sit down for a mock deposition, during which she peppers you with questions.
Afterwards, you can discuss how to refine your answers.
Just the experience of going through one deposition prep could settle your nerves as you approach the real thing. , Either party can request mediation.
Alternately, the judge can order it without a request from either party.
While mediation is not a statutory requirement in a modification proceeding, it is usually ordered unless a party objects because of a history of family violence, or the parties convince the judge mediation has no reasonable chance of success.
In mediation, a neutral third party attempts to bring the parties to an agreement on the issues.
The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial.
If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court.
If mediation is unsuccessful, the parties simply proceed to court., Contact the clerk of the court to schedule your hearing.
The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for trial.
You must notify all parties.
You can do this by preparing a Notice of Hearing.
Ask the clerk if your court provides a form for this. , You may get the form from the court clerk.
A subpoena should assure the witness’s attendance at the trial.
The subpoena should be served by the sheriff or someone over 18 who is not a party to the suit.
If you decide to use the sheriff, then you will have to pay a fee.
The fee varies by county.
In Denton County, it is $70.00., If mediation fails—or if one party refuses to participate—then you should prepare for trial.
You need to think about what the other parent will argue as well as how best to make your case.
To find out the other parent’s strategy, take out a copy of the answer that was filed and read it.
In the answer, the other parent will list why you shouldn’t have custody.
Honestly self-assess.
This may be the most difficult part of seeking custody.
In a contested custody case, the other parent will use anything potentially embarrassing or damaging against you.
If you’ve had drinking, money, or anger management problems in the past, you should expect that those issues will be raised in a contested child custody hearing.
You should think about how to show that you have surmounted your prior problems.
If you have had charges (or convictions) for domestic violence, child abuse, sexual abuse, or drug abuse, then you should seek a lawyer’s assistance.
A lawyer will know best how to prove that you have rehabilitated yourself. , In court, you will need evidence to prove your assertions.
A bare claim that “I have turned my life around” will be unconvincing.
Revisit what you need to prove to change custody.
For example, you want to prove that it is in the “best interest of the child” for you to have custody.
You therefore need to identify evidence (documents or testimony) that can support your argument.
When considering the best interests of a child, courts consider several factors, including: the child’s desire, the emotional and physical needs of the child; the parenting abilities of those seeking custody, the stability of the home or the proposed placement; and any acts or omissions of the parents which may indicate that the parent-child relationship is no longer proper.Try to have at least one piece of evidence to back up every assertion you make at trial.
For example, to show that you have a stable home, you can introduce evidence that you haven’t moved in a long time and that you have stable employment.
To show that you can meet the emotional and physical needs of your child, provide documentation of how you will provide your child with medical care, as well as your continuing emotional bond with your child. , Throughout the case, you will need to make certain disclosures to the other party, and you should request these same disclosures if they are not made voluntarily.
These disclosures may include financial affidavits, witness lists, and a list of exhibits.
Failure to properly disclose prior to trial could result in your being prevented from introducing this evidence at trial., They may be found at http://www.txcourts.gov/media/921665/texas-rules-of-evidence.pdf.
Do your best to get a general idea of the rules.
The most important evidentiary rule you should know is the prohibition on “hearsay evidence.” Hearsay is testimony about a statement made out of court that is offered as the truth.
For example, the other parent may testify at the hearing that someone told her that you have money problems.
If that statement is offered as proof that you have money problems, then it is hearsay.
You can object and have it omitted from the record.
Another important evidentiary rule is the prohibition on “character” evidence, also known as “propensity” evidence.
This kind of evidence is offered to show that you are predisposed to acting a certain way on a specific occasion because you acted that way in the past.
For example, if the other parent argues that you were drunk when you last saw your child because you “have a history of drinking,” then that evidence is unacceptable propensity evidence.
The rules are complicated, and you might not understand most of them.
Given how nervous you will feel on the eve of trial, you might want to hire an attorney for assistance or instruction. , Give yourself enough time to get to court.
If you are unfamiliar with the courthouse or the parking situation, give yourself an extra hour. , Since you are asking the judge to give you full custody, you should look as professional and pulled-together as possible.
If you can wear a suit, then do so.
If you can’t, then wear clean dress pants and dress shirt.
If you can only wear jeans, then make sure that they are clean and in good repair.
Under no circumstances wear shorts, flip flops, tank tops, mini-skirts, or sagging pants.
If you need to borrow an outfit from a friend, then do so. , You or your lawyer will need to give the judge a roadmap of what the evidence will show.
The opening statement should be brief, but should summarize what evidence will support your claim for custody. , As the petitioner (the person seeking to change the custody order), you will present witnesses first.
The respondent (the other parent) will then have an opportunity to cross-examine the witnesses.
Do not ask leading questions.A leading question states a fact and then asks the witness to agree.
For example, “You never spank your child, do you?” is a leading question.
Instead, the lawyer should ask a series of questions such as “How often does your son misbehave?” “Do you punish him?” “How do you punish him?” Then the attorney can ask, “Have you ever spanked your son?” Ask witnesses to identify any documents you want introduced into evidence.
You must first elicit testimony that a document is what you claim it is before it can be admitted into evidence. , The purpose of cross-examination is to either discredit the witness or to minimize the testimony by showing that the witness is biased or lacking in sufficient knowledge to testify about the matter.
You can impeach a witness with a prior inconsistent statement.
If a witness ever praised you as a parent, then that statement can be introduced if the witness now claims on the stand that you are a bad parent.
If someone testifies that you and your child fight, then you can minimize the damage by highlighting how infrequently the witness sees you with your child.
Always try to remain calm.
If you feel anger overwhelming you, close your eyes for five seconds and breathe deeply. , You or your lawyer will summarize your case, explicitly linking evidence to the best interest of the child factors.
Counter bad facts as best as you can.
If you don’t have a clean criminal record, then concede that fact before highlighting the evidence that shows you have lived responsibly for the past several years. , If you prevail, then you or your lawyer will have to prepare an order.
Locate the appropriate blank form and complete it.
Make 2 copies.
If you disagree with the judge’s ruling, you have 30 days to file a Notice of Appeal.You should ask the clerk for the form and file it in the trial court clerk.
The filing fee for an appeal will be around $195.00.If you want to appeal, you are strongly encouraged to meet with an attorney.
The appeals process is complicated, with tricky deadlines and rules.
About the Author
Marilyn Perry
Marilyn Perry is an experienced writer with over 3 years of expertise in arts and creative design. Passionate about sharing practical knowledge, Marilyn creates easy-to-follow guides that help readers achieve their goals.
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