If you ask any family law attorney whether you need a lawyer for your child custody case, the answer should be an emphatic yes. Custody cases can be the most difficult of all family law matters, and the stakes are literally as high as can be; your access and relationship with your children.
However, at Cordell & Cordell we acknowledge that the decision whether to retain an Atlanta child custody attorney is more complicated. There are several factors a person should consider when evaluating whether they need representation in their custody case.
Do my wife and I agree regarding our custody?
In some situations, parents can agree regarding custody prior to the commencement of a legal action. These are called uncontested cases; Matters where parties have reached a full agreement on their own.
Some parents decide they do not need legal representation for uncontested cases, which is of course their right. However, many of these parents have a broad agreement regarding custody but they do not understand what that entails.
Do you and your wife agree on who the primary parent will be; meaning the parent with whom your child will spend a majority of his or her time? Even with joint custody, Georgia requires that a primary parent be designated. This designation impacts several non-custody issues such as child support and how the child is claimed for income taxes.
Do you and your wife agree regarding legal custody? In Georgia, legal custody, access to child related records and decision making for a child, must be addressed separate from physical custody. It is important that an agreement regarding custody is a comprehensive agreement that includes all custody related issues appropriately drafted, signed, and filed within the court system.
Do my wife and I agree regarding a parenting time schedule?
Connected to the above item, do you and your wife agree regarding the specific schedule for the children; when they spend time with each parent? This does not just refer to the day-today schedule but also all holidays, school breaks, and summer vacation.
Do you agree who is responsible for transportation for the children? Do you agree on holiday travel, out-of-state travel, and out-of-country travel? What happens if someone is late for a custody exchange? What happens if someone wants to use a proxy for custody exchanges?
A simple agreement that parenting time will be week on/week off or every other weekend is insufficient. Unless you comprehensively address all custody related issues, I recommend you utilize the assistance of an experienced Atlanta child custody attorney.
Am I conformable familiarizing myself with the appropriate state and local rules?
Whether an agreement is reached or not, knowledge of both state law and local rules are essential. There is certainly nothing wrong with you conducting your own research and representing yourself. All Georgia statutes are available online to view at no charge.
However, the Georgia code is laborious to navigate and even when you do find law relevant to your case it is often difficult to figure out how to apply the law. There is 100+ years of previous judges’ various interpretations of law that impacts application of even the simplest statute.
You also must be familiar with all the appropriate court rules. This includes the Uniform Superior Court Rules, which is a separate list of rules and regulations in addition to statute, local court circuit rules, and rules for individual judges. While it is not impossible for a non-lawyer to familiarize himself with everything, it is an onerous undertaking and the consequences for a mistake or omission can be severe.
While in court, I have seen several people attempt to represent themselves who ended up getting their cases dismissed due to mistakes. They had to re-start the entire case, re-file all paperwork, re-pay all filing fees, and hope everything is correct the second or third time. Even factoring in the expenses of legal representation, it is more cost effective to get the case right the first time as oppose to trying repeatedly on your own.
Am I comfortable negotiating on behalf of my interests?
If your matter is contested, meaning there is no agreement regarding custody, it is your responsibility to engage in negotiations with the other side and attempt to resolve your case before going to court. While no court system will force you to accept a settlement and give up your day in court, almost every court in Georgia will require that you at least attempt to reach a negotiated resolution prior to trial.
This is a very harrowing endeavor for many people. Haggling at a car dealership is difficult enough on its own, imagine engaging in the same when your relationship with your children is on the line. Too often, parents without lawyers feel like they must settle so they accept whatever offer is presented to them.
Attorneys are aware of this and too many take advantage of non-represented parties. Other people struggle to remove the emotion from the negotiations and feelings of anger, frustration, and betrayal obstruct their ability to effectively negotiate. If you are mandated to negotiate, you need every tool available to maximize your negotiating effectiveness. Quality legal representation will bring those tools.
Can I effectively argue my contested case without an Atlanta child custody lawyer?
If your matter is contested, and you are unable to reach a negotiated agreement while the case is pending, you must argue your case at trial. While you can represent yourself at trial, this can be very difficult, and I strongly advise against it.
Not only do you need to be to be familiar with the law, local rules, court procedure, and court rules, but you also must be familiar with evidence rules. The rules governing the admissibility of evidence is one of the most complicated and nuanced areas of all law. Law students spend an entire year studying evidence and it is a major part of every bar examination.
Despite this, the judge is going to expect you to be an expert in evidence rules to the same level as an attorney. I once observed a corporate lawyer who was unfamiliar with the law relevant to his case, unfamiliar with the preferences of the judge handling the case, and he also made errors regarding important procedural matters. He lost his case and I firmly believe he would have won if he had experienced representation.
It is not fair but that is the reality you face entering court without a lawyer. Court procedure and rules are not as simple as “Law and Order” and “Judge Judy” make them out to be.
Can I afford an Atlanta child custody attorney?
This is a difficult question and one only you can answer. You know your finances better than anyone else and you know what you can and cannot afford.
At the same time, I want to reframe the question in a way that I think is more apt: Can you afford to not have a lawyer? Litigation can be costly in some cases, but the consequences of not having quality representation is even more costly.
Even in cases settled via negotiations, lack of representation can result in your case being dismissed. In contested matters, representation is even more important. Years from now, you do not want to look back at your custody fight and say you didn’t do everything you could. Reach out to Cordell & Cordell today and schedule an appointment with one of our Atlanta divorce attorneys. Find out your rights and explore the financial options available to you. Once you have done this you can make an informed decision regarding whether you need an attorney.