Mediation unsuccessful - Temporary Custody Hearings


#1

My ex and I have attended 2 mediation sessions and we weren’t able to agree on legal/physical custody; so the mediator advised us we’ve been set for a hearing in April and the judge will evaluate/award temporary custody at that time. During mediation, his suggestions continued to grant him control over my whereabouts and who I spend my time with - simply because my daughter is with me. My suggestions maintained healthy boundaries and eliminated miscommunication between us.

Is this the time to offer witnesses and affidavits of testimony? Or what exactly happens, what’s the format, of a temp custody hearing?

My ex was abusive/controlling and is now acting like he’s the model citizen and daddy-dearest. Although I believe he should continue to be a part of my daughter’s life (she’s only 2), I don’t feel it’s in her best interest to be in his custody full time. He has a history of making irrational/impulsive/emotional/irresponsible decisions that could negatively impact her. He also has a major heart condition that, in his alimony complaint, he says could cause him sudden death (so he can’t work); but if that’s the case, it’s not safe for my daughter to be with him full time, since he lives alone.

We currently share time with my daughter every other week, which isn’t ideal but it’s been working for the past year, since we separated.

Although not common, I want to petition the court for sole legal custody and joint physical custody; but I don’t know a solid argument to support that. He and I don’t agree on anything; and anything I suggest, he immediately opposes - it’s still all about control/narcissistic behavior.

Not sure if I’ve actually asked anything clearly, but suggestions??


#2

At the temporary custody hearing you will want to produce your evidence showing why it is in your child’s best interest to be with you primarily/solely and why it is not in her best interests to be with Dad. Your county may have a time limit for temporary hearings, so be sure that you know how much time you have to present your case. For example, Wake County allows two hours for a temporary custody trial, so one hour for each side.

You will want your evidence to show why Dad is not a good parent and give examples of the poor decisions he has made and how those poor decisions have impacted your daughter.

Your evidence could be in the form of emails, text messages, medical records, voicemails, witness testimony.

The plaintiff will be able to present his/her case first. The plaintiff will testify first, then the defendant will have a chance to cross examine the plaintiff. Then the plaintiff will call any of his/her other witnesses and the defendant will get to cross examine each one. Then it’s the defendant’s turn. At the end, both sides make closing arguments which tie together all the evidence presented and make an argument as to why the judge should rule in the way you say he/she should rule.

For more details, check out our article and video, Preparing for Child Custody Court.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

In my complaint for divorce, I did not include a proposed visitation schedule/arrangement; I assumed we would review/discuss that during mediation, which we did. Now that we’re scheduled for our temporary custody hearing, do I have to file my recommendation with the clerk or do I simply present it to the judge during the hearing? If I have to file it with the clerk, do I have to go back through the process of having my ex formally served with the document, and give him 30 days to file an answer (which would be past the hearing date of April 2nd)?
I want an opportunity to present to the judge what I my desired arrangement is. In my divorce complaint, I asked for sole physical and legal custody. I’m willing to share physical custody, but not legal because, as I mentioned before, the marriage was abusive and we have not demonstrated that we are able to effectively communicate or come to mutual agreements regarding our daughter.


#4

No, you do not need to file a formal request or explanation as to why you are asking for sole legal and physical custody. Instead, you will testify at trial and present your evidence as to why the judge should rule in your favor.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

Thanks. When presenting evidence, do I need to have multiple copies of everything that’s in a paper format? (i.e., a copy for me, the judge and my ex to review) Does whatever I present get added to the case file, and not returned to me??
My hearing is next Tuesday, so I’m trying to finalize what I need to gather/organize; what’s relevant or not.
Are Affidavits of Testimony acceptable or frowned upon at a custody hearing? I am considering asking my counselor to prepare an affidavit of testimony to help support my request to limit my communication with my ex-husband (it was an abusive relationship and I’ve worked very hard to set safe boundaries; even though I don’t have a 50B); and one from my son’s father (my son is from another relationship; I thought it may help to support my ability to maintain a co-parenting relationship with someone who is open to one). I feel as if my ex-husband and I do a “parallel parenting” thing because we both parent completely different ways and never agree on anything; nor is he interested in anything I would have to say about our daughter.