Most people know what a custody dispute is, but few know how the process works in court. Here you will learn more about the District Court's handling of a custody dispute and its different stages.
The reasons for initiating a court process are that the parents do not agree on decisions regarding the children. In most cases it is a matter of difference of opinions. But in some cases, there is turmoil at home and children and/or a parents may be in need of protection. (Here we focus on the majority of cases where different opinions is the foundation for the case).
The task of a legal representative is to safeguarding the parent's rights in the legal process. This involves advocating for the parent, providing advice, and safeguarding the parent's rights. It is not mandatory to have legal representation. However, parents who represent themselves risk being at a disadvantage. In short, those who can should hire their own legal representative.
To strengthen the perspective of children's rights in custody proceedings, a legal requirement was introduced in January 2022 that parents considering going to court should first receive information about the assistance and support available out of court. The hope is that more parents will choose a different path than a legal process to reach a decision regarding the children.
A custody dispute starts when one of the parents submits a summons application to the court. In the statement, the parent specifies their claims (what they want) and the grounds for them (the legal reasons). In addition to the claims and grounds, it is common to briefly explain the background. When the district court handles the statement of claim, the court also requests information from the social services regarding the child and the parents. The purpose is to gather more information in the case and ensure that the case is investigated in the best possible manner.
Once the summons application has been processed by the district court, it is sent with service documents to the other parent/opposing party. The parent then has a certain amount of time to respond. The response is the opposing party's written reply. The response generally follows the same structure as the summons application. First, the respondent states their position on the applicant's claims, and in addition to that, the respondent's own claims, grounds, and factual circumstances are stated.
After the summons and response, the court summons the parents (parties) and their representatives to a meeting. This usually takes place within 6-8 weeks from when the summons is issued. The purpose of the meeting is to clarify the matter and find out what is being claimed, the grounds for it, what evidence is being invoked and any uncertainties. Typically, the chairperson will first go through the case briefly, and then the representatives may have the opportunity to present their clients' views on the matter.
If it is a case about difference of opinions rather than issues of safety for the child it is considered in the child's best interest if the parents can reach a voluntary agreement. Therefore, the chairperson often tries to find out if it is possible to reach a temporary or final agreement. One way is for the judge to speak with one party at a time while the other party waits outside. Without the other party in the room, it is often easier to open up and contribute to solutions.
If the parties, with the chairperson's assistance, reach a final agreement thyt both can accept, the chairperson can make the agreement legally binding and enforceable. This is done by the judge writing down what the parties have agreed upon and assessing whether the agreement is in the child's best interest.
If an agreement cannot be reached, the district court can make decisions about various measures depending on the circumstances and the nature of the case. This may include:
Before the main hearing formally commences, the presiding judge typically reexamines the possibilities of reaching a voluntary agreement, either wholly or partially. Again, the judge often speaks with the parents separately. However, if the parents cannot reach an agreement, the court will adjudicate the case.
During the main hearing, the court reviews the claims, grounds, and circumstances, as well as the parties' evidence. This may involve oral evidence in the form of testimony from the parties and witnesses. Written evidence may include excerpts from reports of concern, chat conversations, or other documents. Before the hearing concludes, the representatives summarize their clients' claims and the grounds for these in their closing statements. The court provides a date for when the judgment will be available and then concludes the hearing.
The district court's judgment is an assessment of the child's best interests based on the circumstances and the parents' claims. If a parent is dissatisfied with the judgment, they can appeal it to the Court of Appeal within a certain period from the date of the judgment. However, leave to appeal is required for the Court of Appeal to reconsider the case. In other words, it is not certain that a dissatisfied parent will receive a new review in the Court of Appeal.
Elisabeth Scholander Family Law Attorney and Mediator, specialized in Conflict Resolution for families
2 May 2024
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