This is the next post in my series discussing what unmarried parents need to know about their custodial rights. My last post stressed the importance of filing a parenting agreement with the court, even when two parents agree on all aspects of custody. In this post, I will focus on what happens when parents do not agree and explain the discovery process that occurs in preparation for a custodial trial.

Discovery is the process of acquiring and exchanging information with the opposing side during a custody case. It is used when two opposing sides cannot come up with a settlement or private agreement and are taking their case to trial. In a child custody case this often means that one parent does not believe that the other should be awarded custodial rights or unsupervised visitation of a child. The discovery process will be used to find evidence that will prove each side’s argument. Examples of evidence that an attorney may be looking for in a custodial case include evidence of drug abuse, medical issues that could negatively affect a parent’s ability to supervise, criminal record, etc. There are also where neither parent has done anything wrong but there is a disagreement over the best interest of the child. In those cases discovery will be used to produce evidence of the child’s physical, mental, and social health.

There are many tools that an attorney can use to produce such evidence. First, they may use a subpoena to obtain private documents. These documents may include bank statements, health records, the child’s educational records, etc. It is also possible to compel either parent to get a physical examination if their health is at issue. Other methods of discovery include interrogatories, which are written questions sent to the other side. When interrogatories are used, the opposing side is required to answer the questions truthfully, or risk perjury. Finally, depositions can be used, which are out of court interviews conducted under oath. The deposition of the opposing party can be taken, or an attorney can take the deposition of another person related to the case. For example, an attorney could ask for the deposition of a parent’s significant other, family member, a babysitter of the child, or some other person who may have knowledge of the case.

Once an attorney has gathered all of the evidence they require they will use it to put together an argument to make in front of the judge at court. The attorney’s goal will be to use the evidence available to make a concise and easy to follow explanation as to why their client’s wishes are what is in the child’s best interest.

If you are a parent going through a custody dispute then it is important to work with an attorney who is familiar with all of the rules of discovery. Contact our family law office today and schedule a consultation.