Being a Defendant in a Custody Case

Contents

When Your Childs Other Parent Files a Complaint for Custody

What the Custody Case Process Will Be Like
If your childs other parent has filed for custody, he or she is the Plaintiff in
the case. You are the Defendant.
Being the defendant in a custody case isnt like being a defendant in
a criminalcase. It doesnt mean you did something wrong or you are in
trouble. It doesnt mean the other parent gets to make all the decisions in
your custody case. It just means the other parent was the one to file the
paperwork first and start the custody case.
It is important that you understand your rights and responsibilities as a party
to a custody case. This article tells you what you can expect.

When Your Childs Other Parent Files a Complaint for Custodytop

Consider talking to a lawyer
If your childs other parent has filed a complaint for custody, consider talking
to a lawyer. This is especially important if your childs other parent has ever
been verbally, emotionally, or physically abusive to you or your children.
You cannot rely on the other parents lawyer to protect your interests. This is
true even if you and the other parent agree on most issues. If a lawyer has
filed paperwork for the other parent or has appeared in court for the other
parent, that lawyer cannot represent you.
If you need a lawyer and are low-income, you may qualify for free legal help.
You can use the Find a Lawyer page on this website to look for a lawyer in
your area.

Accepting Service of the Custody Papers

Maybe you know your childs other parent filed for custody and you are
thinking about trying to avoid service (delivery) of the custody papers.
Avoiding service of custody papers wont do you any good and could cause
you problems.
Avoiding service doesnt mean the other parent wont be able to get custody.
It may cause a slight delay at the beginning of the case, but it can result in
you not knowing whats happening in the case. The court may also make
important decisions about your child without your input.

Read the Papers Carefully

If you have been served with a complaint for custody, read it right away. It is
important to understand what your childs other parent is asking the court to
do.
Your custody case will determine the rights and responsibilities of both
parents towards your child. This includes custody (who the child lives with
and who makes decisions for the child), parenting time (visitation), and child
support.
When you are first served custody papers you should get:

Summons A custody case is started by filing a complaint and other

required papers with the court. When you do this the court clerk will issue a
summons. The summons is important because it tells the other party how
long he or she has to file an answer with the court.
Complaint for Custody, Parenting Time, and Child Support The
complaint tells the court about you, your childs other parent, and your child.
It also tells the court what the other parent is asking the court to order. The
complaint states what custody, parenting time, and child support
arrangements the other parent wants.
Uniform Child Custody Jurisdiction Enforcement Act Affidavit
The information in this paper is required in all custody cases. It contains
basic information about your children and where they have lived in the past
5 years.
Verified Statement This paper is required to be filed with the Friend
of the Court in all custody cases. Your childs other parent may or may
not serveyou with a copy. It contains identifying information about you and
the other parent including social security numbers, drivers license
information and information about your employment and income. This is a
confidential document and is not placed in a public court file.
When you are served custody papers you might also get:
Ex Parte Orders Your childs other parent may have filed one or
more motions asking the court to order something at the start of the case.
This could happen before you are even notified about the case. Ex parte
orders are emergency orders that get decided by the judge
without hearing your position. If you get an ex parte order, the order is
already in effect.
Ex parte orders can be about many different things. The most common
orders give temporary custody of children to one parent and order child
support payments.

If you get an ex parte order with your custody papers consider

talking to a lawyer. You only have a short amount of time 14 days from
the day you are served - to file an objection to an ex parte order if you dont
agree with it. After 14 days the ex parte order becomes a temporary order
that will normally last at least as long as it takes for your custody case to
become final.
Motions for Temporary Orders - Your childs other parent may have
also filed one or more motions asking the court to enter temporary orders.
Motions for temporary orders are often about the same types of things ex
parte orders are about, but the judge has a hearing to decide whether to sign
the order. If you get a motion for a temporary order it will include a notice of
hearing that tells you the date, time and place of the hearing.

Pay attention to deadlines

There are strict deadlines in a custody case. If you want to file an answer to
the plaintiffs complaint for custody and if you want to file a counterclaim for
custody, you must do so within the time stated on the summons. This is 21
days from the date of service if you were served personally (handed the
papers), or 28 days from the date of service if you were served by mail or
while you were outside of Michigan.
If you do not file an answer by the deadline, the court can enter a
default against you. If a default is entered, you cannot participate in the
case until you file a motion to have the default set aside and the judge
enters an order setting the default aside. If your case is defaulted, this
means that the court can make decisions about your children without your
input.
If the other parent files any motions in the custody case, a hearing will
normally be scheduled. You can file a response to the motion and appear at
the court hearing. Your response must be filed with the court at least three
days before the hearing.
Your response must be served on the other parent at least five days before
the hearing if you have the other parent served by mail, and at least three
days before the hearing if you have the other parent personally served.

Decide how you want to respond

If your childs other parent has filed for custody, you can choose to do
nothing. If you do nothing, the other parent can pursue custody without your
input, and youll end up with a court order based on the other parents terms.
A default Order Regarding Custody, Parenting Time, and Child Support will be
entered. This may be fine if you agree with all of the other parents proposed
terms. But you should consider participating in the case if you want input in
the custody, parenting time, and child support arrangements.

To participate in the case you must file an answer to the custody complaint
by the deadline on the summons. You can also file a counterclaim for
custody, which asks the court to decide custody, parenting time, and child
support arrangements for the children and says the terms you want. If you
file a counterclaim for custody, you must file and serve it at the same time
you file and serve your answer.
You can use our Automated Online Answer to a Custody Complaint Forms to
file an answer or an answer and a counterclaim.
What the Custody Case Process Will Be Liketop

Answer
Your answer is a response to each paragraph of the plaintiffs complaint for
custody. You and your childs other parent may agree on all the issues in your
custody case. Or, you may have a contested case because you dont agree
on all the major issues. Major issues include child custody, parenting time,
and child support.

Counterclaim
You can also file a counterclaim for custody with your answer. This lets the
court know what you would like to happen in your custody case.
Filing a counterclaim for custody can also help you make sure your custody
case goes forward.
If you dont file a counterclaim for custody and your childs other parent does
something to have the original case dismissed, your custody case will end.
Then, if you still want to have the court decide custody for you, you will have
to start over by filing a new case and paying the filing fee.

Friend of the Court Referrals, Investigations, and Recommendations

The Friend of the Court office assists the court in making custody, parenting
time, and child support decisions. Depending on the county where your
custody case is filed, you may have to meet with a worker from the Friend of
the Court office.
In some cases the Friend of the Court will investigate and make a
recommendation to the court about custody, parenting time, and child
support.
A Friend of the Court recommendation is not a court order unless it is signed
by a judge. You will have an opportunity to object to a recommendation or a

temporary order. If you object, you will have a hearing in front of a judge or
referee.

Finalizing the Custody Case

Your custody case might be resolved by:

Default judgment, where you do not file an answer or participate in the

case;

Negotiated judgment, where you and your childs other parent decide
the terms together;

Mediated agreement, where you and the other parent meet with a
mediator and decide the terms;

Court hearing, where the judge makes a decision because you and the
other parent cant agree on the terms.

After a Custody Order is Entered

After a custody, parenting time, and/or child support order is entered, both
you and the plaintiff must obey the terms of the order. If either party fails to
do exactly what the order says, the other party can file a motion with the
court asking the court to do something about it. The court continues to have
jurisdiction over your children until they turn 18 years old.
Final orders can be changed - but you must meet certain requirements to get
the court to consider changing an order. The requirements are different
depending on whether you are asking the court to change custody, parenting
time, or child support.

Additional Information about Custody

To learn more about custody and parenting time, read the articles Overview
of a Michigan Custody Case, Custody and Parenting Time, The "Best Interests
of the Child" Factors and Changing a Custody Order. Also read the Common
Questions in the I am a Defendant in a Custody Case toolkit.
To learn more about child support and the role of the friend of the court, read
the articles Friend of the Court Overview, Child Support in a Nutshell,
andGetting or Changing a Child Support Order.

Defending Yourself Against a Criminal Charge

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Every case is different, but here are a few of the most common defenses to a criminal charge
In order to convict you of a criminal charge, the prosecutor must prove your guilt beyond a reasonable
doubt. This is a pretty lofty standard, and during any trial the defendant may present a defense in order to
raise such a reasonable doubt. Most defenses break down into one of two categories: (1) I didn't do it or
(2) I did it, but I shouldn't be held responsible.

1. I Didn't Do It
The most basic defense to any criminal charge is to simply prove that you didn't do it.
Innocent Until Proven Guilty
One of the hallmarks of the American legal system is the presumption that you are innocent until proven
guilty. This isn't just an ideal, it's an actual legal presumption, which means the judge and jury must
assume you're innocent until they are shown otherwise. This is why a defendant can "plead the fifth",
remain silent, and not offer a shred of evidence to support his or her claim of innocence and still prevail. It
is the prosecutor's job to prove a defendant is guilty, not a defendant's job to prove that he or she is
innocent. So what does a prosecutor have to show?
Beyond a Reasonable Doubt
The prosecutor must demonstrate to the judge or jury that there is no reasonable doubt of your guilt. If
any reasonable doubt can be shown, any at all, then the prosecutor has failed and you should be found
innocent. Because this standard is so high, most defendants concentrate on raising some reasonable
doubt to the prosecutor's allegations.
I Have an Alibi
One of the primary ways defendants prove that they didn't do it is to demonstrate that they couldn't have
done it. An alibi defense is evidence that you were somewhere else, often with someone else, and thus
couldn't have been the perpetrator. By demonstrating to a judge or jury that it is likely that you weren't
present at the crime scene, you are creating a reasonable doubt of your guilt.

2. I Did It, but Shouldn't Be Held Responsible

Many defendants admit that they did the act, but claim for one reason or another, that they shouldn't be
held responsible. Here are a few examples of this type of defense:
Self-Defense
This is a common defense when someone is charged with causing some form of physical violence
(assault, battery, etc). The defendant flips the story, and demonstrates that rather than being the
aggressor, he or she was actually the victim and was acting to protect themselves from harm.
Self-defense is an ancient defense that exists in most legal systems, and is predicated on the belief that
people have a right to defend themselves from physical injury. Proving such a defense can be tricky since
a defendant will generally have to demonstrate that self-defense was necessary, the belief of physical
harm was reasonable, and that the response was reasonable. For example, responding to an assailant's
threat to punch you by shooting them is almost certainly an unreasonable response.
Insanity Defense
Although it makes for fascinating TV dramas, in real life defendants rarely plead insanity as a defense.
Judges and jurors are very skeptical of these claims, and because of the abstract nature of this defense, it
can be very difficult to actually prove.

The theory behind an insanity defense is the notion that in almost every criminal law, there is a "mental"
or "intent" element. Often, the required mental state is that you must have intended to perform the
criminal act. If a defendant is precluded from an understanding of what they're doing because of mental
illness, then they can't possess the mental state that the criminal charge requires. From a policy
standpoint, we also tend to think that it would be more appropriate to send someone who is truly insane to
psychiatric care, not to prison. Thus, even if a defendant is successful in an insanity defense, they will be
sent to a psychiatric institution, not set free.
So how do courts define "insane"? The most popular definition is the McNaughten test which defines
insanity as "the inability to distinguish right from wrong". To successfully win an insanity defense, a
defendant will rely on testimony from a psychiatrist, and will undergo extensive psychiatric testing which
can be painful and humiliating.
Under the Influence Defense
Related to the insanity defense, some defendants defend themselves by claiming that they were under
the influence of drugs, and could not have had the mental state necessary to commit the crime. In other
words, they were too high to really know what they were doing. Only a few states allow this defense, and
even then, it is only a partial defense. At best, it will lower the crime you are convicted of to a lesser crime.
Entrapment Defense
Entrapment defenses are appropriate when a government official induces you to commit a crime.
Common examples of this are prostitution stings or drug sales. The theory is that the government
shouldn't be allowed to push you into committing a crime and then convicting you for it.
This defense won't be successful if the judge or jury believes you were predisposed to committing the
crime, however. So even if an undercover officer offered to sell you illegal drugs, if you have a history of
drug use, then an entrapment defense isn't likely to be successful.
- See more at: http://criminal.findlaw.com/criminal-law-basics/defending-yourself-against-a-criminalcharge.html#sthash.3C5Zrde5.dpuf