How Do I Represent Myself at a Custody Hearing?
Many parents who are involved in custody lawsuits wish to represent themselves. This article discusses important considerations and helps readers to prepare for this important undertaking.
First of all, can I represent myself at a custody hearing?
Yes, you can represent yourself. You will be referred to as a “pro se” litigant, meaning you are not represented by an attorney. North Carolina state law allows pro se litigants to appear at their own hearings, whether it is for custody or many other legal issues.
Is It a Good Idea to Represent Myself?
The short answer is probably not—if you are able to hire an attorney. But sometimes finances do not allow a party to hire an attorney. Just remember that you will be treated as if you had the same knowledge as an attorney. Judges expect everyone who enters a courtroom to be prepared, know where to sit and who goes first, how to present evidence, how to properly conduct direct and cross examinations of witnesses, and publish documents and other items into evidence.
Now might be a good time to take a deep breath because representing yourself in a legal hearing is a major undertaking, especially when the outcome will determine where your children will live and what rights you will have as a parent.
So, it’s possible to represent yourself if that is your only option. But be smart and do everything within your power to prepare ahead of time because Judges don’t allow mulligans.
What Should I Wear?
It’s always a good idea to dress in a way that shows the Judge that you recognize and appreciate the solemnity and importance of the court system, as well as the issues to be heard that day. For men, this means you will not be over-dressed if you wear a suit and tie. However, Judges are well aware that not everyone owns a suit or a tie, and therefore it is perfectly acceptable to wear a button-up shirt and slacks, or perhaps a golf shirt and slacks. Stay away from jeans and casual shirts, as this tends to suggest that you are not taking the process seriously.
For women, the same principle applies. Wear something nice to show the Judge that this is an important event in your life, and you are treating it with the respect and dignity that it commands.
Where Do I Sit in the Courtroom?
Until your hearing begins, sit in the gallery. These are the seats as soon as you enter the courtroom, and its where parties and attorneys sit until their case is called by the Judge. There should be plenty of seating in most courtrooms, so pick a seat anywhere you’d like. I’ll only make three suggestions.
First, turn your phone on silent—or better yet, turn it off altogether, as Judges are sometimes aggravated by too much phone usage during court time.
Second, tensions usually run high during custody hearings. Consider choosing a seat that is far from the opposing party—the other parent. You have enough to worry about on your hearing date. There’s no use in adding unnecessary stress by sharing close quarters with him or her.
Third, many courtrooms designate where you are required to sit, or where you are not allowed to sit. For example, in my home county of Mecklenburg County, North Carolina, all of the family law courtrooms only allow attorneys to sit on one side of the courtroom, and litigants/parties must sit on the other side. This helps Judges to easily determine who is in the courtroom at any given time, which helps to more efficiently manage the caseload that day. Other courtrooms require men and women to sit on opposite sides of the courtrooms. This is mostly limited to domestic violence courtrooms, but it might apply to custody hearings in your home county, as well.
Who Goes First?
This is ultimately up to the Judge. But, all else equal, the Plaintiff or movant usually goes first. If you are the Plaintiff in a custody hearing, then the Judge will probably expect you to begin by calling your first witness and begin presenting your case-in-chief. However, in many cases, you might be at a motions hearing, which means the moving party will usually go first. Sometimes there are cross motions, and the order of these hearings might be determined by who filed his or her motion first, or it might simply be determined according to which way the Judge feels will be most expeditious. Remember, court time is always scarce, and Judges expect parties to be quick and to-the-point. So, it’s best to have a good idea ahead-of-time who will be expected to begin presenting his or her case first, as well as who will have the opportunity to listen to the other’s case before presenting his own case-in-chief.
One more thing to know is that each time a witness is called, the calling party will directly examine that witness. Then the other party will have an opportunity to cross examine the witness. Finally, there is often an opportunity for “re-direct” and “re-cross,” at which time you must limit the scope of your questions to the topics discussed by the previous party.
How Do I Examine a Witness?
Judges expect you to do a few things with witnesses. First, treat them with respect and dignity. They might be hostile to your case, but this is a civil proceeding, so you’ll want to be civil with the witness. Secondly, when you ask a question, wait for the witness to complete his or her answer. Do not interrupt. Third, phrase your questions as single questions, not compound questions. If you ask questions improperly, then the other party can object, the witness might not have to answer, the answer might be confusing if he does answer, and it will upset the Judge. Fourth, if you are directly examining a witness, then you cannot ask leading questions. The Judge needs to hear from the witness, not from the party asking questions. So, ask questions like, “What were your parenting responsibilities before you separated?” Do not ask questions like, “Isn’t it true that you picked up the kids from school, took them home, fed them dinner, helped with homework, and then put them to bed?”
One last point on asking questions of a witness. It is a common phenomenon in courtrooms for a pro se litigant to begin arguing with a witness with whom they disagree. Don’t do this, as the Judge will quickly grow impatient with you, and this will hurt your chances of receiving a good outcome in your custody hearing. Let the witness finish answering, unless their answer is subject to objection, and then ask another question.
How Do I Present Evidence?
This is one of the more complex issues for pro se litigants. In order to conduct a custody hearing, you must present “evidence” to the Judge. But what is “evidence?” It usually falls into two categories. One category is verbal testimony, and this happens when a witness testifies. That could include you as a pro se party, and it gives many people great difficulty to speak without the Judge or the other party cutting them off with objections and admonitions of improper phrasing.
The other category is documentary evidence, such as kids’ report cards, photographs, and medical records. In order to have a Judge view these records and consider them in her ruling, you must present them through a witness, lay a foundation for each of them, and then ask that they be published into the evidentiary record. You might be the witness, or perhaps you will have someone else testify about the records in question. Either way, you must ask questions about the what, when and where so that the Judge finds that you laid a foundation for the evidence. This is simply an inescapable legal requirement governed by the North Carolina Rules of Evidence, and the wise pro se litigant will educate himself or herself on how to lay a foundation prior to walking into a custody hearing. Even licensed attorneys struggle at times with this step, so don’t discount its importance. Once a foundation has been successfully laid, then you must ask the Judge to publish the document into evidence. The other party or attorney might object to this request on any number of bases, and the Judge will need to hear arguments from each side and make a decision whether the evidence should be accepted into the record.
At the conclusion of many custody hearings, the Judge will want to hear closing arguments from each side. This is a crucial time to review the evidence with the Judge and make efforts to persuade him or her to rule in your favor.
Note that many of these rules and principles apply to other types of hearings, as well.
As always, this article is not legal advice, and it is important that you seek the advice of an experienced divorce attorney regarding your unique facts and circumstances before making any major decisions that might impact you or your family.