What You Should be Doing 6 Weeks Before Your Custody Trial - Part 1

Generally speaking, this is what I am doing 6 weeks prior to a custody trial.  It's important to remember that deadlines differ from jurisdiction to jurisdiction. In part one, I'm going to talk about checking your local rules, reading the judge’s minute entries, calendaring deadlines, and the difference between disclosing exhibits and exchanging exhibits. 

Check Your Local, State or Country Custody Rules 

It is so important that you look at your local rules for important requirements and deadlines.  These will vary from jurisdiction to jurisdiction.  For example, in Arizona, a pre-trial statement is required by the courts but in other states, it is not a requirement. We will actually delve into pre-trial statements in Part two.  

Read Your Judge's Minute Entries

These are the minute entries for the judge setting trial. It's important for you to look at that minute entry where the judge sets trial and to calendar it. In Arizona, the judge can change our rules or limit or the deadline set by rules in their minute entries and often they do.

Calendaring Your Deadlines 

When you read the judge's minute entries for setting trial, you will have all of your deadlines in front of you. It is crucial that you write all of these into a calendar. This is one of the things that I cover in the 21-day child custody challenge.   Calendaring is one of the most important functions of my law office because a client's case can be destroyed if a deadline is missed.  I have 3 people in my office checking to make sure that all deadlines are docketed. If you’re handling your own custody case you should be checking it a few times and even have somebody take a second look at the deadlines you've docketed.

Providing Disclosure to the Other Side

About six weeks before a custody trial I look at my client's file to see that everything my client has disclosed to me, I have provided those things to the other side.  This is called disclosure and there are deadlines for disclosure prior to trial.   A lot of times people get confused because the judge’s minute entries often say 7 days prior to trial you have to exchange exhibits with the other parties.  Sometimes people think that this is when they're giving the other party exhibits for the first time.  That is not the case.  

Disclosing Exhibits vs Exchanging Exhibits Prior to Trial 

There's a difference between disclosing your exhibits and exchanging your exhibits prior to trial. Disclosing your exhibits is giving the other side the information you could use at that trial. Exchanging exhibits is giving the other side what you're actually going to use at trial. 

The Purpose of Initial Disclosures

In the course of your custody case, you have to disclose the things that you might use at trial to the other side.   Normally discovery should be continuous and ongoing.  I'm not saying it has to be six weeks.  You have to look at your local rules and your minute entries.  Generally speaking this is what I'm doing six weeks before trial.  I'm making sure that anything and everything my client has given to me as a potential exhibit at trial has been given to the other side.  The point of disclosure and exchanging disclosure is to make sure that the other side has notice of exhibits that you might use and notice of the claims that you might raise.  That's the purpose of disclosure because there's no trial by ambush.

You disclose information you might use at trial but as you get closer to trial you are looking at your evidence and your witnesses.  You're figuring out what your claims are and whittling down what you're actually going to use. In some of my cases, we have 30 disclosure statements because there's so much evidence.

Exchanging Exhibits Prior to Trial

These are the exhibits that you've actually narrowed down from your initial disclosures that you have to provide to the clerk.  When you go to court one side should not be giving the other side exhibits on the day of trial or even the week before trial.  Look at your rules to see what the discovery deadlines are and look at your judge’s minute entries.

 Narrowing Down Exhibits You Are Going to Use at Trial

There may be hundreds and hundreds of potential exhibits but that doesn't mean we're going to use every single one of those exhibits at trial.  We're going to use the exhibits that are most relevant to whatever it is that we're trying to show the judge.  So out of 2,000 exhibits as an example, I might only be using 20 at trial.

As you get closer to trial you're whittling down what you're going to use because the time that you have for trial is really limited.  In Arizona most of the time the most that I get is three hours for trials so I have to plan my evidence very wisely and use the best evidence that I have.

Exchanging Exhibits Prior to Trial

When you get to trial there's going to be a clerk in the courtroom who marks your exhibits with evidence tags.  I go into this more deeply in some of my programs. The clerk marks the evidence with evidence tags that are numbered one plaintiff's exhibit or petitioners exhibit, two, three, four and so on. 

So say I have 100 exhibits that I have marked for trial.  In order for the clerk to have those exhibits ready for trial, the clerk has to receive your exhibits you're actually going to use prior to the day of your trial.   So what the judge does is sets deadlines by when you have to give your exhibits to the clerk.   In Arizona most of the time it happens to be a week before trial or five business days or seven calendar days.  

What If You Miss a Discovery Deadline 

Sometimes my client will give me something 3 weeks or even 3 days before the trial they want to try and use.   Just because it’s late doesn't mean I don't disclose it.  It may not be able to be used but you should always disclose.  Just keep in mind if you've disclosed something late you may have difficulty getting it into evidence because it was late.

In summary, six weeks before your trial you are checking your calendar, checking judge's minute entries, checking your rules, and your deadlines to make sure you have everything calendared and disclosed.

In Part 2 we focus on pre-trial statements, evidence, witnesses you are going to potentially call, narrowing down testimony and more. 

What You Should Be Doing 6 Weeks Before Your Custody Trial - Part 2