WomensLaw serves and supports all survivors, no matter their sex or gender.

Preparing for Court

Starting the Court Case

Starting the Court Case

Basic information

Can I file a case in court? Do I have a “cause of action”?

To start a court case, you must have a reason to go to court. Generally, the reason for your court case is known as the “cause of action.” A cause of action exists when someone (usually called the defendant or the respondent) has done a legal wrong to you, or there is a disagreement that the court can solve. For example, you could have a cause of action against any of the following people:

  • someone who assaulted you;
  • someone with whom you had an oral contract or agreement and that agreement was broken; or
  • someone with whom you have children and there is a disagreement over where they should live and who should make decisions for them.

All of these issues, and many others, represent causes of action that allow you to bring a court case.

How do I start a court case?

Most court cases start when one party files a complaint, petition, or other legal documents with the court clerk. Usually the party that starts the court case is called the “plaintiff” or the “petitioner” and the party being sued is the “defendant” or “respondent.” After you have filed the documents, the other party must be “served” with the documents; this is also known as “service of process.” The person that you are suing will get a summons or notice of petition (legal notice to appear in court) and copies of the documents that you filed, which usually includes the petition and affidavit. This will give the other party notice of the court case itself and of any court dates that are scheduled. In some cases, the court clerk might arrange for service and sometimes the plaintiff him/herself must arrange for service on the other party.

What should I include in the petition or complaint?

There is certain information that usually has to be included in a petition for it to be heard by a judge. In most states, you will need to include the names, addresses, and possibly the birth dates of the people involved in the court case. If the case involves children, the names of the children, their addresses, birth dates, and address history is usually also required. If you are concerned about disclosing your address, you can ask the court clerk if there is a way for you to keep your address confidential.

You will need to allege certain things in your petition in order to meet the basic requirements of the court where you are filing your court case. The information required in your petition will depend on the type of court case you are trying to file. Basically, you need to explain the reason you are filing, what you would like to see happen (the relief you are requesting) and provide specific examples of what occurred that makes you think the judge should give you what you are asking for. In some cases, there will be additional requirements that you will need to meet so you should be sure to review the form carefully and complete all of the sections. For example, in a case to modify an existing custody order, you might have to include information about a change of circumstances that has happened since the original order was issued.

Most states have sample petition forms that you can fill in online. If your state does not have forms available online, you may be able to get the forms by asking the court clerk in the courthouse where you want to file your petition. Some courthouses may even have a staff person who is available to help draft petitions.

Giving notice to the other party

What is a summons or a notice of petition?

A summons or notice of petition is a legal document that provides notice to someone that a court action is pending and tells him or her when and where the court appearance is. Usually a summons will also direct that the person has to appear at that court date and that s/he may face consequences if s/he does not appear.

What is service of process and how do I accomplish it?

Service of process is giving the other parties in the court case the documents that were filed in the case so that they have notice that a lawsuit was filed against them and they have the opportunity to respond. There are very specific rules on who, when, and how to serve a person. Every state has different rules about service of process but generally, there are a few different ways to accomplish service upon the other party or parties.

  • Personal Service: Personal service is when you have someone physically hand the documents to the other party. For service to be proper (valid), states may have certain rules that need to be followed. For example, some states do not allow service on Sunday (or another Sabbath day that you know the person recognizes). In addition, you (the plaintiff or petitioner) cannot be the person to hand the documents to the other party. This is because if there is a question about whether or not the other person was actually served, the judge will want to confirm with a third party, someone other than you, that service actually happened.
  • Substituted Service: Some states allow for what is called substituted service or constructive service, which may only be available in certain types of court cases or if certain conditions are met. Some examples of what might qualify as substituted service are:
    • Serving a person of “suitable age and discretion” at the defendant’s home or workplace. A person of suitable age and discretion is generally considered an adult who does not have any developmentally disabilities.
    • After diligent efforts to personally serve the defendant, posting the documents on the door of the defendant’s residence and mailing a copy to his/her last known address.
    • Publication of the notice and/or documents in a newspaper chosen by the court or other forms of alternative service (such as service by email or social media). These methods of service usually have to be approved by a judge beforehand.

You will want to consult with a lawyer if substituted service is necessary in your court case.

Gathering evidence

Should I gather evidence before filing my court case?

If it is safe to do so, then you should be gathering evidence and deciding which witnesses could help you to prove your cause of action. You should keep track of any witnesses by writing down their names, their contact information, and what they know about your case. Make sure to photograph any injuries you suffered or any damage to your property. If you are the one who is filing the court case (the plaintiff or petitioner), then you are the one who will have to prove that what you are alleging in your petition/complaint actually happened.

One thing that you can do to better prepare your case for stalking or harassment is to keep a log (or a record) of the details of each incident as the incidents occur. You can make a list of the date and time of each incident, what the abuser did or said, what actions if any you took, what witnesses or evidence you have, etc. This way, if you have to prove the pattern of events in court, you will have the information ready to give to the police or judge. You can also save any voicemails, emails, or text messages that are sent as further proof of the stalking/harassing behavior - as well as taking screenshots of any posts made on social media to preserve them in case the person who posts them later deletes them. Here you can see safety tips for stalking or harassment victims and a sample stalking/harassment log.

What kind of evidence should I have for my case?

Each state has its own laws about what evidence you can use in court. You may need to get certified copies of the documents or you may only be able to enter information from certain parts of the document. If you are trying to get reports from police, hospitals, doctors, etc., you may have to get a subpoena signed by the judge to get those documents. Your state may require that the documents are sent directly to the courthouse instead of to you. Due to complex rules of evidence, it may be hard to figure all of this out on your own – this is where having a consultation with a lawyer can be especially helpful.

In most states, evidence can include:

  • testimony in court, from you or from your witnesses;
  • medical reports of injuries from the abuse;
  • police reports for when you or a witness called the police;
  • pictures of your injuries;
  • household objects torn or broken by the abuser;
  • pictures of your household in disarray after an episode of domestic violence;
  • pictures of weapons used by the abuser against you;
  • tapes of calls you may have made to 911, which can be subpoenaed;
  • certified copies of relevant criminal convictions of the abuser;
  • a personal diary or calendar in which you documented the abuse as it happened; and
  • anything else that might help convince the judge that is allowed under your state’s rules of evidence.

The more evidence you have, the better. However, even if you have no documents or witnesses, your testimony is evidence. Don’t be discouraged from pursuing your case if the “only” evidence you have is your testimony.

Should I contact potential witnesses before the hearing?

Anyone can be a witness – a friend, a family member, children, an emergency room nurse, a doctor, a stranger who saw or heard the abuse, a law enforcement officer, etc.

Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify. Court clerks usually have subpoena forms that you can fill out and the subpoena will have to be signed by the judge. There may be specific rules in your state regarding how the witness has to be served with the subpoena and even how many days in advance of the hearing s/he must be served. Be sure to ask the clerk or the judge for this information. In some states, the sheriff department will serve the subpoena. In other states, you may have to get someone over the age of 18 to serve it, or a process server. You can ask the clerk of court how to have your subpoenas served.

If the people you subpoena do not come to the hearing, let the judge know. The judge can penalize them for not showing up and you can ask the judge to postpone the hearing until the subpoenaed people do appear.

How can I prepare myself to testify?

It is important to practice telling your story. Even though you lived through the abuse, you may never have had an opportunity to sit down and talk about all of the incidents of violence in an organized, clear way. By practicing in front of another person or in front of the mirror, you may be less nervous to tell your story to the judge in court. Also, as you begin talking about it, often times you will remember new details that may be important for your court case.

Tell your story in your own words and try to speak clearly. For example, in a restraining order case, try to focus on the relevant details of the incidents of violence, threats of violence, or any harassing or stalking behavior that you included in your petition. When describing an incident where the abuser hit you, tell the judge how you were hit, where on your body you were hit, how many times, what type of pain or injuries you suffered, if s/he used a weapon or object, etc. If you are describing threats that the abuser made to you, don’t paraphrase the threat by saying, “S/he threatened to kill me.” Try to remember exactly what s/he said and give those details, such as “S/he threatened to slit my throat and throw me into the river.” In other words, be specific.

You may want to make an outline or notes of the history of violence by the abuser to bring with you to court. Depending on your state’s rules of evidence, you may be able to refer to your notes when testifying to refresh your memory, but you may not be allowed to read your notes aloud. You can ask the judge if you can take notes with you when it is your turn to testify in case you need to remember a date, etc. However, be prepared to testify without them if the judge says, “No.”

If you have children, you may want to talk to a domestic violence lawyer in your state about how to present any evidence about what the abuser has done to the children. You want to be sure not to present this information in a way that may put you at risk of being accused of failing to protect your children from abuse.

Custody is going to be decided in my case

How can I best prepare my case for custody?

In every state, there are certain factors that a judge is supposed to consider when deciding custody in order to determine what custody arrangement is in the child’s best interests. To find out what the “best interest factors” are in your state, you can go to the WomensLaw.org Custody page, enter your state into the drop-down menu and look for the question called something similar to “How will a judge make a decision about custody?” You may want to prepare as much evidence as you can that will address the factors that the judge in your state will consider. This can be your own testimony, witness testimony, documentary evidence, etc. Additionally, in many states, the judge may appoint a custody evaluator to interview the parties.