Asking for a continuance in your custody case

You thought you’d reach an agreement. You counted on it, actually. You and your child’s father were working towards an agreement, and things were looking pretty good. Even though there was a court date looming on the horizon, you didn’t think too much about it initially. You were working towards an agreement, and that was good enough for you. There was plenty of time, after all. And the two of you saw eye to eye on a lot of the major issues anyway. What was there to fight about?

Except that, when it came down to it, it was harder to reach an agreement than you thought. You fought over more and more issues than you thought. And the more you tried to put pen to paper, the more you realized he took issue with even little things, things that you thought were more or less innocuous. He wanted to just “let things work themselves out” and “see what happens” rather than getting an agreement in place, even though the attorney you meet with and everything you read on the internet advised you to get something concrete in place to protect you.

And the court date approached. You still hoped you’d reach an agreement, but you started to panic a little bit. And panic is never pretty, and it also doesn’t help facilitate agreements. But going to court without an attorney? (Because, let’s face it, now you’re down to the wire, and even if you had the money to hire an attorney, an attorney doesn’t have the time to prepare for your case.) It’s pretty scary to think about, especially if he has an attorney to represent him. Which he probably does, which is part of the reason why he’s pushing you so hard now. He’s feeling confident. And you’re not. And that’s really, really scary.

So, what do you do? The court date is coming, and you don’t have an attorney.

Obviously, this isn’t an ideal position to be in. But first, you need to know where you are in your custody case. Have you already been to court once before? Or is this your first time in? That’s the first question.

Your initial appearance

Your first time in court is what we call an initial appearance. It’s not a custody trial. So, if it’s just your initial appearance, you don’t need to panic as much. An initial appearance is when the judge is going to figure out what the issues are, maybe appoint a Guardian ad litem, and then set the matter for a contested trial. You’ll have a chance to hire an attorney after the initial appearance and before the trial date. You can ask that the trial date be set out so that you have time to retain counsel and your new attorney has time to prepare and familiarize herself with your case. So, take a deep breath. If it’s just an initial appearance, you’re okay.

Your custody trial

If you’ve already been to your initial appearance, chances are you’re going to your custody trial. If you haven’t hired an attorney yet, you can show up and ask for a continuance – but it’s risky. There is always a chance that the judge will move forward without granting your continuance.

You can ask, though – after all, it never hurts to ask. As a pro se litigant (a person showing up to represent herself without an attorney) you stand a better chance than most. We often get the question, “Can’t I just get an attorney to come ask for a continuance on my behalf?” I get the appeal – it seems like a judge would be nicer to an attorney, right? But that’s often not the case! It’s actually often a little riskier WITH an attorney! Why? Because the judge could say, “Well, clearly, you’ve got an attorney here – why can’t we just proceed?” In fact, I wouldn’t want to even show up at the courthouse without being SUPER prepared for a case, just for that reason! I wouldn’t want a judge to force me to proceed if I wasn’t ready. I think a judge would be less likely to do that to a pro se litigant than to do attorney.

What if I get a bad result?

Well, the good news is that, at the juvenile court level, you can automatically appeal your result to the circuit court, so long as you note your appeal within a certain period of time – double check with the clerks in your local court on this rule, as some courts vary.

When you appeal, you get a brand new trial de novo, which means that none of the stuff from the lower court comes up to the circuit court, so you get a completely new do over. That’s pretty nice.

I can’t bear the thought of going to court without an attorney. What can I do to avoid it?

If you’re too scared to go to court and ask for a continuance (I get it – it’s scary!) and you’re married to your child’s father, you can always file for divorce. Then, it doesn’t matter whether your attorney has time to prepare for your custody case. If they file for divorce in the circuit court, they can divest (meaning, basically, remove) jurisdiction from the juvenile court, and take it up to circuit court instead!
That will put your entire divorce action together, rather than separating out the custody portion from the divorce (because, after all, you’ll still have to do the divorce part separately later on down the line).

Really, it makes the most sense that way; it’s not all that cost effective or sensible to separate it out (though people do, every day).

You can file for divorce and divest jurisdiction up to the last possible second. Once your divorce is filed, the custody case can no longer be heard in the juvenile court. You could actually do this on the exact same day as your custody case – sometimes, that does happen. It might not be the nicest thing in the world, but…it certainly happens.

Want to learn how to represent yourself?

Okay, so if you’re really down to the wire this may not be the best option yet, but if you’ve got some time to figure it out, maybe you wan to handle your case on your own. Whether you prefer not to hire an attorney or can’t afford to do so, you wouldn’t be alone if you chose to represent yourself. And, conveniently enough, we have just the seminar designed to help teach you how to do just that! For more information, visit our website and request more information about our custody seminar, Custody Bootcamp for Moms, by clicking here.  You can also request a copy of our free report, “Can I REALLY Represent Myself in my Custody Case?” You don’t want to miss it!

Going to court without an attorney is really scary, especially when you were expecting to be able to reach an agreement. Custody cases especially are particularly scary, and there are a lot of moving parts. The best thing you can do is make sure you understand as much as possible about how custody cases work and what’s involved, so that you don’t wind up in a difficult position.

For more information about custody cases, request a free copy of our book, “The Woman’s Custody Survival Guide” by clicking here, or give our office a call at 757-425-5200.

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