Modification of a Custody Order: Part 1 – Hearing Preparation

Last month, I concluded a custody case in Family Court that settled on the second day of a hearing.  As part of my preparation for this hearing, I prepared and submitted a Memorandum of Law for the Judge at the start of the hearing that identified the legal issues that I expected would be presented.  Most of my peers do not do this.

I am a big fan of being thoroughly prepared for hearings and trials.  I have found that by having my legal argument organized and spelled out in detail, it is easier to prepare my witness examinations and do the rest of my out-of-court preparation for a hearing or trial.  This also makes it easier to present my case once I am in the courtroom.

In terms of my presentation of my case, my opening statement will outline the factual and legal issues to be presented.  My memorandum of law will discuss the legal issues that I expect be presented.  The application of the legal rules to the facts of the case requires that we present evidence through witness testimony and exhibits.  Form this evidence, the judge will determine the facts.  In my closing argument or written final submissions to the court, I will argue about how to apply the law to the facts and what conclusions I believe that the judge should reach based on such.

I see many attorneys who go right for the facts, but ignore the law.  The problem with this is sometimes they miss some very significant facts that they otherwise would have known to present evidence upon if they had done their legal homework at the start of the case and not the end.

In any event, as a result of my preparation for this hotly contested custody matter, I have found myself with a lot of new and interesting case law and a short dissertation on the modification of custody.   I will use this research from my hearing preparation for series of blog posts on the modification of a custody order.

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