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Developing Effective Themes in Custody Trials: Strategies for Attorneys

In custody trials, attorneys act as "conductors," presenting evidence to develop unique "themes" that distinguish their clients. These themes highlight the strengths and weaknesses of both parties, emphasizing the unique aspects of each case. It's crucial to acknowledge negative attributes of your client and positive traits of the opposing party. Discovery practices differ by jurisdiction, and attorneys must effectively develop themes throughout the trial process, from motions to summations, ensuring that every court appearance strategically supports their client's position.

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Developing Effective Themes in Custody Trials: Strategies for Attorneys

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  1. Developing Trial Themes By Frederic P. Schneider, Esq. of Ballon Stoll Bader & Nadler, P.C.

  2. In custody trial, attorney is “conductor” and evidence presented is opportunity to develop “themes” that will guide that attorney, the witnesses and the Court. “Themes” are the issues that make the case unique, different from all other cases, and distinguish the parties who are contestants from each other.

  3. While emphasizing the good qualities and past acts of the party you represent (or favor, if attorney for the child) and the poor qualities and past acts of the adversary, it is also necessary to acknowledge and deal with negatives about your client and positives about the adversary.

  4. Discovery in the Third and Fourth Departments is a matter of right, but for discovery in custody and visitation matters in the First and Second Departments, a Court Order issued in response to motion practice is required.

  5. Alternate sources of discovery: 1. Court Ordered Investigations; 2. Medical and Psychiatric Records; 3. Forensic Reports; 4. Affidavits in support and in opposition to motions; 5. Results of Independent Investigations; 6. Information obtained from your client.

  6. Effective Counsel develops “Themes” during pendency of case, in every Court appearance; every motion; every conference. Facts Supporting Hilary Jones (Mother) Had primary decision-making during child’s life Performed all the heavy-lifting and legwork in parenting Jeffrey Jones deferred to her up to now Decision-maker usually has advantage in custodydisputes Principally responsible for child’s medical care

  7. Facts Supporting Jeffrey Jones (Father) Fun-loving Playful Provides consistent routine Facilitates parenting time for Mother Organized

  8. Facts Contrary to Hilary Jones’ Custody Application Diagnosed as Mentally Ill Obstructs Father’s Parenting Time Disobeys Court Orders May be Guilty of “Parental Alienation” Bad-mouths Father Utilizes Lack of Money to Influence Child Utilizes Child as Care-giver, reversing Parent-Child Dynamic

  9. Facts Contrary to Jeffrey Jones’ Custody Application Acts Contrary to Medical Advice Does Not Follow-Up With Medical Care & Prescribed Medications Refuses to Communicate with Child’s Neuropsychologist Long History of Marijuana Use Too Physical with Child, Risk-Taker History of Reported Domestic Violence Against Child’s Mother

  10. “Themes” should be developed and emphasized in Pre-Trial Submissions and Post Trial Submissions, whether oral argument; written summations; or both, if applicable

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