A custody trial occurs when conciliation or mediation has failed and the parties go to the next step; allowing the court to determine their fate.

By Attorney Alyssa Knisely, Custody Lawyer, Harrisburg, PA

In prior articles, I have discussed how to begin the custody process (by filing a complaint, see link), going to the next step of a conciliation conference (see link) and I've also discussed the statutory factors that the courts must consider to determine what the outcome may be.  (See link to New PA Statute).  This article will detail what occurs at trial.

First, and most importantly, the various common pleas courts of PA, will allow a comparatively shorter amount of time to deal with a custody proceeding.  That's not a slight on the courts.  They have extremely busy dockets and deal with many other types of matters, such as criminal, civil litigation, PFA's, support, forfeiture and appeals from the minor judiciary.  Most courts will likely provide the custody litigants with only a day or possibly two to try their case before the court.  This is a very short amount of time when compared to a homicide or white collar criminal case that may take up to 3 weeks.

Therefore, it is important to focus on the factors that the court must consider and get the very best witnesses in front of the court.  The court will likely want to hear from the child(ren), depending on their age, intellect and maturity.  This is usually done in a non-threatening manner, outside the courtroom setting in the judge's chambers.  The court will also want to hear from both parents, any significant other that will be spending extended periods of time with the child(ren) and any caregivers for the child(ren).  The court may also want to find out about any problems that the parents have with drugs, alcohol, physical abuse, or past criminal behavior that may affect their determination and the impact such will have on the child(ren).

What the Court wants to find out about the parents

  • Their current living situations.  How many bedrooms?  Do the kids sleep in their own rooms?  Are their concerns about the home?  Photos are always are a good idea for exhibits.  After all, a picture is worth a thousand words.
  • The parental work schedules.  Do they accommodate the type of schedule that parent is advocating?  What's the flexibility?
  • Signficant others and their children.  How does everyone get along?
  • The past practices of the parties and the kids.  Who has been the primary caregiver?  Is there a concern about this situation that requires a change?
  • Are there any issues with anger, drugs, alcohol or abuse that require attention?  Was there a prior or current protection from abuse order?  Is either party involved in counseling for a dependency issue?
  • How do the parties communicate or fail to communicate and which parent is best able to foster the relationship between the child(ren) and the other parent? 
  • The existence of a family support network.  Are there grandparents, aunts, uncles or other extended family members that are heavily involved with the child(ren)?  What impact will a change in the schedule have on those relatinships?
  • The respective parenting abilities of either party.  This can get nasty.  Personally, I try to avoid a 'mud-slinging' contest.  After all, you get dirty too when you start to throw dirt.  However, if one party is abusive, consistently negligent, or shows a carelessness about the way they care for the child(ren), it's an issue that must be brought to the court's attention.

The court will first hear from the moving party.  It's their burden to show that they've met all or more of the factors to be considered by the court in determining a custody case.  They present direct testimony through themselves or their attorney's questions to them on the stand.  They are subject then to cross-examination by the opposing party or their counsel.  They will likely call other witnesses that favor their position.  Again, these witnesses provide direct testimony and then are subject to cross.

Next, after the moving party has "rested" or gotten done presenting their side and witnesses. The non-moving party is then allowed to present witnesses and testimony that show their position is best and refutes what the moving parent is suggesting to establish a new custodial relationship.

An attorney will likely want to meet with you ahead of your trial to discuss witnesses and testimony.  Court appearance is always important.  The court will judge you not only on what you say, but how you look and appear when you say it. 

If you are considering establishing a custody order or modifying an existing one, you should seek competent legal counsel to assist you.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today