Deciding Whether or Not to Litigate in Family Court-
Emergency (e.g. refusal to return a child after parenting time; refusal to hand over a child’s passport prior to other parent’s vacation, etc.).
Your being very upset is not—in and of itself--an emergency if there is no imminent, irreparable harm to persons or to property.
Usual definition of emergency involves a showing of imminent, irreparable harm. If a true emergency, the likelihood of success is better. If child abuse, call your child protective services agency or police immediately. If you are a victim of domestic violence, call your local police or visit your court’s domestic violence office.
Your definition of emergency may be very different from the Court’s. Check with your lawyer as to the legal definition and criteria. Here, the emergency may compel that you respond and take precedence over any anticipated costs. Sometimes problems come to your front door, like it or not. Is there any possibility of getting relief without court action?
If the legal criteria are satisfied, likelihood for success is good. In many cases, such as in issues directly affecting children, or danger to any person, you should act swiftly or face criticism yourself for doing nothing. If it an emergency regarding dissipation of marital assets, your failure to act quickly may cause you a financial loss.
Financial Issues (e.g. litigation over child support, spousal support, court ordered or agreed-upon reimbursement for expenses (e.g. college costs, extracurricular expenses, medical expenses, child care, etc.)
How much do you seek? Are you already entitled to this money by court order? Why wasn’t it paid? Is there a plausibly good reason (extenuating circumstances) the other party didn’t pay you?
Is there a factual dispute over the issues? (If so, there will be a trial on those issues). With conflicting factual arguments by both sides, the Judge may need to conduct a trial with testimony and evidence to make findings before rendering a decision.
Is an existing order in place and is the other party clearly in violation of that order? Can you show that clearly with your exhibits attached to a motion, clearly showing that you are owed a specific amount of money.
Do the arrears exceed the expected legal costs? Have you tried speaking with the obligor or tried mediation? Do you have paid receipts for reimbursement? Do you have clean hands and have you complied fully with your obligations? Did you submit the receipts (if required) within the time limits (if any)? What are the arguments against you getting paid? On what basis (if any) could your adversary argue that paying you would be unfair or not required under the current circumstances?
Paying in cash and relying on verbal agreements is foolish. You need everything in writing and should pay by check so you have a record of everything. People lie in Family Court and often deny that the verbal agreements and cash payments ever happened.
If the money was previously ordered and not paid, and the amount is mounting and already significantly exceeds expected legal fees, it may be worth pursuing. Don’t wait years to seek reimbursement or you may lose it. A lot of time passed can be considered to be your waiver of getting these funds. Prepare a list of your adversary’s expected arguments against you even if you disagree.
In pre-divorce settlement negotiations: balance the cost of attorney time vs. the amount or item you seek (e.g. spending $2,000 on joint legal fees to obtain a $1,500 benefit).
Are you willing to risk the costs of litigation against the possibility you will not get the relief you seek? Sometimes it is a toss of the dice. Weigh the odds of success first.
Child Custody: Legal custody differs from primary residential custody in many states. You can potentially have joint legal custody and be primary parent of residence (PPR). Ask your lawyer about this and what are your obligations if joint legal.
Getting sole custody is rare.
(a) You seek
sole (legal and residential) custody:
You will generally NOT succeed unless the other parent is an unstable addict, alcoholic, criminal, mentally ill, abusive, missing, or significantly neglectful of the child’s needs.
(b) You seek
to be PPR. Ask your attorney for your State’s criteria to be PPR.
(c) You want to
Expand your current parenting time (visitation).
(d) You want to move out of State with or without the child. Need custody and/or parenting time to be changed.
(e) Are there issues of child abuse, neglect, substance abuse or alcoholism in the other parent (old issue, or new relapse, etc.)?
Are you prepared to pay-in addition to legal costs of a likely custody trial: the costs of psychological evaluations ($5-10,000), depositions of the expert(s). A custody trial can cost anywhere from $25-$50,000 or significantly more.
Is the current PPR uncooperative, sabotaging your parenting time, actively alienating the children, not taking care of them, being abusive, neglectful, etc.?
Are you looking for more overnights with your child to reduce your child support? Because you are angry at the other parent? Because you are in competition with the other parent? To punish the other parent? OR:
Because you already have a fairly close relationship with your child, you are involved in the life of your child, and you honestly want to spend more time with your child because you love your child and want to be closer?
Important: Are you available to handle the duties that come along with more time with young children (e.g. preparing dinners, taking child to activities, pick up at bus stop, etc.). Is the other parent trying to alienate the child from you (really)? What arguments will the other parent make against you having more time?
What is your definition of parental alienation? The other parent spending lavishly on the children and not setting the same limits with them that you set, is likely not parental alienation although the child may prefer the more permissive, gift-giving parent. Discuss with your lawyer.
Very clearly identify your motives. Talk frankly with your lawyer and perhaps see a therapist to get feedback as to why you are going down this road, and the possible bad effects on you and on the children. Weigh this against the likelihood of a beneficial result.
Count how much money you have to spend on this, or how much money you can raise from friends, relatives or via a home equity loan, etc. Custody litigation is extremely expensive because it almost always leads to trial, requires experts, and often depositions.
Consider that the Judge may need to interview your child, possibly in chambers, but recorded. A transcript will be made of the interview. You may or may not want to go that route and you may not want to see what is on that transcript.
If parental alienation is ongoing, you may not have much choice, except perhaps to wait until the child is an adult and hope for the best later. There is no guarantee that litigation over alleged parental alienation will result in the outcome you desire. You may also have to hire expert(s) in parental alienation in addition to the local expert who does the psychological evaluation.
Your credibility is important. Don’t tell the judge that the other parent is a terrible parent when you relied on that parent for child care for years previously, or that the other parent is a drunk. The question you will be asked is why you left the children in the care of a drunk. Discuss with your attorney. Your facts may be complex.
Litigate (L) = How Compelling (C factor): (scale of 1-10) + legal fees-costs
available funds (F factor)
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