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Pro Se Custody as Strategy

Pursuing a child custody case in Family Court pro se can be advantageous from a strategic point of view. Most people think that filing for custody or being sued for custody automatically requires a lawyer if they want to prevail.  However, this is not always the case.  In fact, in a lot of instances, having an attorney only exacerbates the issues.  Making the decision to file for custody, to respond to a custody petition, or choosing the path for the custody case as pro se, can impact the outcome of your case.

Meaning of Pro Se in Custody Cases

Representing yourself in your custody case means that you are speaking for yourself.  It means that you are your own advocate and that you make your own decisions in your case.  The decisions you make are with respect to procedure, the method used, and the path your case proceeds.   You get to decide when you should file your petition, how to respond to the other party’s petition if you should attempt mediation if you should settle, and if you should go to trial.   These are just some things you would have to feel confident enough to make decisions on your own.  And because you are making these decisions on your own, you are more than likely the one who is responsible for the outcome of your overall case. Being pro se is still not encouraged in most courts, mainly because the courts are concerned with the amount of time and resources needed to accommodate non-lawyers.  However, it is your right to represent yourself, no matter what the judge tells you.

Advantages of being Pro Se in Custody

There are actually some advantages or benefits to representing yourself in your custody case. Of course, there are some disadvantages too but I would like to focus on the benefits because many would love to know about them.  Did you know that pro se litigants have the advantage of getting some fees waived? Yes, as a self-represented litigant, if you have economic hardship you can apply for court fees to be waived.  You can’t do this with lawyer representation, for obvious reasons.  (Of course, unless your attorney is pro bono, then you’re likely to have your fees paid by that organization.)  Pro se litigants often get their cases heard “on the record” without making a formal request.  This means that the court will take the initiative to have a recording device or court reporter records everything that is being said in court. This is extremely important just in case you decide to appeal the court’s decision.  Also, the judges often allow more flexibility in the rules/laws of the court when the litigant is representing themselves.  This is critical because most pro se custody cases get dismissed because of the litigants’ failure to understand and follow the procedural rules.

Pro Se Custody as Strategy

When preparing for your Family Court custody case you should take the time to plot out every move way before you file your first petition.  You should create what I like to call a Gameplan, this helpful tool will increase your chances of getting your desired results.  The key to achieving your desired goals in any aspect of your life is to come up with a solid plan.  That plan should be well thought out, constantly reviewed and implemented properly.  Pro se custody is not exception.

Being pro se in custody is part of your plan, or at least it should be.  That means that every fact, every law, every resource, and every possible resolution should be considered every step along the way.  Things like choosing when to file your custody petition, gathering and using your evidence, looking for useful resources, etc. should be done in context.  Nothing should be done without a clear view of your long-term goals in mind.

When you’re pro se, you won’t have a lawyer or advocate to help you keep an eye out on all of these things, it’s all up to you.  But, as I stated above, there are advantages to doing it all on your own.

In Conclusion

Whether you choose to be pro se or you have no choice, either way, it is not inevitable doom.  You need to start with a winning mindset though and then move on to taking action.  It is up to you to prepare, present, and position your custody case for better results.

If you are self represented or pro se and need help with your custody or divorce case, you can join the Pro Se Family Court Membership Program. This program is the only program geared specifically towards pro se Family Court litigants and getting them the practical, legal and emotional support needed to navigate the Family Court. Learn more here.

The Family Court Temporary Order Explained

In Family Court, temporary orders are issued by the judge for custody, visitation and/or child support. In addition, temporary restraining orders are often granted in instances where there are allegations of abuse against either party or their child(ren). Temporary orders have been meant to grant either party or both, relief while the case is still pending. However, there are times when temporary orders cause more problems.

 

What A Family Court Temporary Order is

A temporary order in Family Court is when the judge addresses an issue brought up in either party’s petition or complaint. That initial document could be seeking custody, visitation, child support, divorce or restraining order. A temporary order can be done by the judge on an ex parte hearing or appearance or when all parties are present. If the issue was brought to the court on an emergency petition, it’s usually done ex parte, and the judge can issue a temporary based on just one person’s version.

In ex parte hearings or court appearances, the person seeking the assistance of the court (referred to as the Petitioner or Plaintiff) will give their testimony without the other party being present. The judge will decide if their account justifies it issuing a temporary order. The temporary can cover custody, support and/or restraints in contact. What the judge will include in the temporary depends on what the Petitioner requested and what the judge feels is necessary based on testimony and evidence.

 

What does a Family Court Temporary Order Mean

Being granted temporary custody has no bearing on the final order of custody. There are instances where it is only as a matter of procedure that one is granted temporary custody as opposed to the other party.

This happens in emergency petitions frequently. A party files an emergency petition for custody based on some pretty harsh allegations and the judge awards temporary custody to that person. The thing is it is not that the court believes them. The judge must make a split decision in a few minutes’ time with no factual evidence. So, if the allegations can pose an immediate danger to the child(ren) then the judge will err on the side of caution.

This means there is no substantive basis for the ruling, it’s just a matter of policy and procedure. The opposing party will have the opportunity to defend against such allegations and then a ruling can be made based on their side too.

Temporary orders have the same power or authority as a final order. Even if it changes the terms of a previous court order or agreement, it becomes the ruling authority in the case until it is changed. If the parties are not satisfied with the terms of the temporary order, there is little that can be done to change until the next court date.

Temporary orders can be in place until the next court date or longer, it’s up to the judge. The judge will decide if a temporary order should be modified based on what they think is best while the case is still pending.

 

The Problem with Family Court Temporary Orders

Even though temporary orders are in fact temporary, they do become final orders at times.  What this means is that even though the trial run brought all sorts of issues, with respect to the practical aspects, they are often ignored.  And when either party has an issue with the provisions of the temporary order, they are more inclined to prolong resolution.  Cases often drag on longer in Family Court, a lot of times unnecessarily.  This can wreak all sorts of havoc on all the parties involved.

Also, sometimes cases are pushed further and further back because of the court, the attorneys or other factors that have nothing to do with the parties.  This unfairly imposes unfair and undue hardships on the party(ies) that are limited by the temporary order.

Further, procedurally, there is no way to seek a modification of a temporary order.  This means that if the temporary order was issued in January and the next court date isn’t until June, the parties are stuck with the directives of the order until that June court date.  The only recourse, in some instances, is if the parties’ attorneys stipulate to a modification or if there is a mediator involved.

And last, there is no appeal process for temporary in most cases. Because they are only temporary, the practical implications of appealing them is meaningless. The appeal process usually takes years in Family Court, sometimes temporary orders only last for months.

 

How to Use Temporary Orders to Your Advantage

You can use temporary orders to your advantage in your Custody Gameplan. Your Custody Gameplan should factor in the possibility of having temporary orders imposed and how they can be useful. Temporary orders can be seen as a practice run for several scenarios. For example, a parenting plan or schedule that was temporarily ordered by the court can be helpful for parents to see how the logistics play out. Driving distance, scheduling time, planning events, etc. are all things all the parties can get a feel for with a temporary order. This way each party can make informed decisions when it comes to the final order for parenting time.

Temporary orders can also be used as leverage in settlement discussions. If either party is not fond of the temporary order, the other party can use the opportunity to negotiate something else in exchange for changing it.

Temporary orders can also be used to get inside the judge’s head. It is extremely important to get insight into how your judge would rule on certain issues in your case. When they issue a temporary order, it is a clear indication of which issues they give priority to over others.  This is a critical practical tip that I suggest to everyone involved in a custody battle or divorce action. (Read here for more like this.)

You should always ask for temporary orders when you are in court. In the Initial Appearance, you should ask the court to issue a temporary order for custody, support and/or restraining order. This way you have something to guide you through the process. At the Status Conference or any court appearance afterward, you should make another request for temporary orders. You can also always ask the judge to revisit the temporary based on your observation of what has or has not been working.

 

In Conclusion

There are both pros and cons to having the judge issue temporary orders, especially in instances where there is a real emergency.  The thing is that they do have limitations too. It is important to not look at them as only temporary but to factor their impact into your overall goals in your divorce or custody case.

 

If you should wish to discuss creating strategy in your divorce or custody case, please feel free to contact me here.

 

 

 

 

Common Mistakes Made in Family Court, Custody & Divorce

Family Court litigants often blame the fact that they “lost” their custody or divorce case on something else. They blame the system, the judge, the lawyer, and so on.  Not that that’s not true, but Family Court litigants make common costly mistakes too. They often fail to take some very important steps to ensure that their case goes as planned.  These mistakes often cost them custody, time with their child(ren), money…the list doesn’t end.

 

Here are some of the biggest mistakes made in Family Court:

  1. Inadequate Planning

When you decide to go to court for custody or divorce, or are forced to go, you should plan for each phase of the process each time.  Planning consists of things like considering the time commitment, which actually gets an accurate idea of how long each court appearance will take amongst other things. You should also plan for costs, not just the cost to hire a lawyer, but for things like filing fees, document retrieval, service of process, etc. And last, you should plan for the emotional/mental toll it will take on you (and your family).  This means making sure you have a support system, health coverage (for therapy), and so on.

  1. Gathering the Wrong Info

This is a mistake that most people don’t realize they are making.  The reason is they think gathering info means collecting anything and everything by audio, video or text.  Not that these are not helpful, it’s that they are often inadmissible in court.  So when you have a custody or divorce case, it is wise to “capture” information by objective means.  Ideally, a third person witnessing things is what’s best.

Another thing they do often is miss opportunities to gather information.  They don’t want to hear from the opposing party, or have been taught to “grey rock” them or just they flat out block them from all communication. This is a huge mistake because there is no opportunity to gather useful information for their case.

  1. Failing to Document Properly

The last one brings me to another very important mistake many Family Court litigants make.  Many people fail to document things in a way that is actually useful.  I often ask people, “now that you have that information what do you plan to do with it because the judge won’t allow it in court?” One of the most common scenarios is when their minor child tells them something that their other parent did or said.  They think they can go to court to make a case based on what a child told them. They document the date, time and what the child said and that’s it. This is rarely enough to get the judge to make a ruling on anything substantive. The thing to do is present it to the other parent, in writing, of course, to get a response.  It’s the response that’s useful, not the hearsay statement the child made.

  1. Not Organizing Evidence Adequately

I can’t stress this one enough. I will admit though that most litigants don’t know HOW to organize their evidence or case properly.  The main reason is that they don’ know what is most important.  They think that advocating on behalf of their child is enough, regardless of the rules of evidence or court procedure.  This takes real effort, and in some cases, some professional assistance, to organize the right way.

 

  1. Not Focusing

Family Court litigants have the tendency to lose track of what’s most important in their custody or divorce case. They are usually so embroiled in emotion that they react to every thing that the triggers those emotions.  This often leads to distraction, which causes you to miss the more important things.  In addition, litigants often get blindsided by the neverending barrage of lies, deception and antics. This too, leads to loss of focus and getting off track.

 

Consequences of these Family Court Mistakes

It is important to keep these things in mind.  It is your responsibility to make sure that you spend time doing your own research.  Familiarizing yourself with the court process and procedure will significantly help to minimize disappointment. Some things most people think that they already know, which is often true.  But there are things that guessing or assuming shouldn’t be an option.

Being unprepared or not planning properly can cause you to lose the war, not just the battle.   Custody cases, specifically, don’t end until your child reaches the age of maturity.  So that means every time you’re brought back to court, is just a battle.  The war still goes on until your children age out.  So that means that every time you are unprepared for a battle, weakens your position.  You seldom get the chance to recoup those losses.

Not to mention, if the court issues a final order in the other party’s favor because you were unprepared, your only recourse is to appeal.  An appeal in Family Court seldom changes things, and they are very expensive. So this means, it’s extremely important to get it right the first time around.

In Conclusion

Please do your due diligence before you get started in Family Court.  It doesn’t matter if you are the Plaintiff/Petitioner or the Defendant/Respondent, it is up to you to be sure that you prepare, present and position your case for success.

Use Your Appearances as Part of Your Strategy, Part Three: The Family Court Pre-Trial Conference

This is the final segment of a 3-part series on Family Court Appearance as part of the strategy. (Read the Part 2 here.) This segment focuses on what’s usually the final conference before trial, the pre-trial conference. This particular conference (hearing) is a sign that the case is actually going to trial. If your case has made it to this phase, then it is safe to assume that all settlement attempts have been futile.

 

What is the Family Court Pre-trial Conference?

The pretrial conference hearing is the step before being placed on the trial track. Cases that have not been settled, usually after several attempts by the court and/or other means, must go to trial or hearing. Even the court has tried to weed out the issues that could be resolved at every court appearance before this one, they will still try at the pre-trial. Conversely, in some cases, the court will not even allow the pre-trial to take place if there have not been any settlement attempts. Remember, the court’s objective is to forego trial altogether. (Only about 10-15% of divorce or custody cases actually go to trial.)

 

What is the Goal of the Family Court Pre-Trial Conference?

The court’s objective is to have one last shot at settlement, but it’s also to highlight the issues that will be addressed at trial. The court needs to know this for several reasons, some have to do with logistics while others have to do with substance. Let’s talk about the logistics or procedure. When the judge knows that a case is going to be added to their trial calendar, they need to allocate resources. Those resources include time, staff, etc. They need to choose the best day, the best time, etc. based on all of these. Procedurally, the court needs to decide how evidence should be submitted, who should be able to testify, and so on.

From a substantive perspective, the court looks at things a little differently. Substantive considerations are things that relate directly to the laws that apply to the case. This is the case, particularly where there are nuanced issues involved in the case. One such example is UCCJEA cases, these cases are always complex and require exploration of all applicable laws to get a clear insight.

The judge will simplify issues, eliminate claims and/or defenses that are not applicable, get parties to admit to some things, identify documents & witnesses; make a motion, witness, etc. schedule and identify who will be doing what. At this point, all forensics or expert reports should have been submitted and all investigations should be completed.  If these things are not in order, then the pre-trial might be held over, or continued for another date.

 

Using the Family Court Pre-trial Conference Strategically

As a divorce or custody litigant, you can certainly use the pre-trial conference as part of your Game plan. If for some reason you were unable to glean the judge’s view on a specific issue in your case, this is your last opportunity to. At this point, the judge secretly held out hope that this case would settle. So now that he or she knows that it has not, they are more than likely not too pleased. At this point, they might not be discreet about their displeasure. Use this opportunity to stress to the court the efforts you made to settle the case. If you were the one to make offers, reasonable counteroffers, etc., then you should certainly bring this to the court’s attention.

In addition, use this opportunity to appeal to the judge’s primary interest in preserving its time and resources for other cases. You can do this again, by showing the judge that you were the one to make several attempts to settle. Attempt to settle must be in good faith, but if you were the one to reach out to initiate settlement or the one to offer counterproposals, get the judge to be the nudge.

And last, use your “magic bullet” at this stage of your case. You do have one, right? You should have something in your arsenal that you were holding onto for your just in case. And if you do, then this is that just in case moment. Hopefully, you learned not to show your entire hand throughout the entire process. This is exactly why so that when all else fails and you have the attention of the court, you can gain an ally.

Whether pro se (self represented) or represented by an attorney, how you incorporate the pre-trial conference should be given considerable attention.  In fact, if you have an attorney, this is the time that you gain clarity where you questioned their competence in the way they handled your case up until this point. (Read here how you can work effectively with your family law attorney.)

In Conclusion

If your case made it to this phase of the court process then you should have a few things under your belt.   From a practical standpoint of course, but from a strategic one as well.  You should be able to separate your feelings from the process by now so that these court appearances are no longer a place you associate with fear and intimidation.

 

If you would like to discuss how to develop a solid Game Plan for your divorce or custody, please feel free to schedule a FREE 15min consultation here.

Use Your Appearances as Part of Your Strategy, Part Two: The Family Court Status Conference

Last week I started a 3-part series on incorporating strategy in Family Court appearances. The goal is to show you how having a solid game plan enables you to position your case advantageously. Last week I focused on the first court appearance in custody or divorce, the Initial Conference. This week’s focus is on using the Family Court appearance that follows the Initial Conference, the Family Court Status Conference as part of creating your strategy.

What the Family Court Appearance Status Conference Is

A status conference, in divorce or custody, gives the parties the chance to update the court on what has occurred since additional documents have been filed, to follow up on how temporary orders are working, or to check-in whether certain conditions have been met. The court will want to know how things have been going with respect to visitation to see if things can be resolved without a trial. If at the last court appearance either of the parties was self-represented, the court will want to know if that party(ies) hired a lawyer.

If the judge ordered certain procedural things, like a drug/alcohol screening, a mental health evaluation, or a home investigation, it would follow up with whether those things have been done. Also, if a GAL has been appointed, then the court will want to know the status.

The Goal of the Family Court Status Conference

Family Court, like most other courts, has an interest in saving time and resources. This means that the judge will always aim to get the parties to settle their case.  Family Court appearance Status Conference in custody or divorce is slightly different than the Initial Conference. The court’s hope is that by employing the tactics or measures mentioned above, they will flush out the perceived issues from the real ones. A custodial parent who insists that the noncustodial parent is incapable of taking care of their child for more than a few hours may realize that that’s not a real concern. The court will examine resolution tactics outside of a trial, like mediation. If the court decides on an alternative dispute resolution, it will set dates for the parties to adhere to.

A Discovery plan might also be discussed at a status conference. This usually entails setting rules & restrictions on Discovery as well as a timeline for the exchange of Discovery.

The last major thing to be addressed in a status conference is overall scheduling. In addition to setting dates for mediation and Discovery, the court will also set a deadline for any motions or amendments to petitions. In addition, the court might establish a pretrial conference date and a trial date.

The process for the status conference might differ when both parties and one party is self-represented. The court will try to encourage pro se litigants to get an attorney at this stage of the case with the thinking that they’d be more inclined to settle.

Using this Family Court Status Conference Strategically

This is the time to use what you have gathered outside of the courtroom, because of the court’s directions, to your advantage. In other words, the orders the court issued, the procedures the judge directed, etc. all offer you vantage points that didn’t exist before. You might have had suspicions about some issues that question the other party’s “fitness” as a parent. Or questions about the safety conditions of the other party’s home. Or speculation about the mental or physical health of the other parent. Either way, the status conference is the ideal time to gauge the court’s position on these specific issues. If, for instance, you mentioned your concern about drug abuse and the judge ordered drug screenings, then this shows that the judge takes this issue seriously. How many times have you raised concerns in court that were dismissed by the judge, often I bet? But if the judge thinks the issue, you raise has some semblance of merit, they will respond accordingly.

The other strategic way to use the Status Conference is by incorporating the information you acquired to help you decide if you should settle or proceed to trial. At this stage of your case, there have been several discussions about settling at least a portion of your case. However, having the results of tests or investigations only helps you to make a much more informed decision when it comes to negotiations.

And last, if you are pro se (self-represented) you can learn a lot about the court process, the laws, and the local procedures at the status conference. You should always be on full alert, listening, watching, and taking mental notes.

In Conclusion

Every stage of your case offers some advantage as it progresses along. You might see going to court as a war zone, triggering all sorts of emotion, while I see it as an opportunity. Any time you are in an environment where you can learn the opposing party’s objective, you should see it as a potential advantage.

My new Pro Se Family Court Membership Program is the perfect solution to your custody or divorce situation.  Having a solid game plan that focuses on using strategy can make or break your case.  Interested in the details? Check here.
Tagged

False Allegations of Child Abuse in Custody

In divorce or custody cases it is not unheard of to have false claims or allegations of child abuse lodged against you. Family Court brings out the best and worst in parents, to the point where almost everyone goes to therapy as a result.

How is Abuse Defined and Determined

Traditionally abuse was exactly what most of us assumed it to be. What I mean by that is that when a child showed signs of the slightest mistreatment, the agency swooped in to protect the child. Nowadays, though, abuse is not what most people think it is. At least not from an agency or Family Court perspective anyway. I mean, for the most part, the extreme instances of discipline like beating a child with a belt, using excessive restraints when a child misbehaves, and so on are still acted on. The Child Protective Services will get involved when children are in immediate danger of extreme harm but not much else.

How the agency responds to allegations of abuse largely depends on what’s going on socially, politically, and fiscally. As apathetic as that sounds, they will decide what meets the level of abuse worth investigating based on these. The best interests of the child seem to become an amorphous concept. Since the pandemic, the resources available to child protective services have dwindled. It’s unfortunate, but most of the reports barely make it past an investigation that entails a few phone calls.

Child Protective Services Process

When an allegation of abuse is made by one parent against another, the process starts with an investigation. The investigation ranges from a few phone calls to verify the claims to in-home visits to medical examinations and beyond. The route the worker takes depends on several factors, the main being the extent of the alleged abuse. So as I stated, a claim that a child is being spanked on their bottom might end in a “dismissal” after a few phone calls. If there is actual proof of bruises, cuts, injuries, etc., then the worker might do a more thorough investigation.
When a divorce or custody case is pending, however, the process takes on a completely different tone. Child protective workers are aware of the fact that parents use their agency to wage a war against the other parent. They know that an “indicated” finding against one parent gives the other parent a “leg up” in a custody battle. So the workers usually inquire about pending Family Court cases when it is gathering information at the intake level.

False Allegations and its Implications

When a parent finds him or herself having to defend against false allegations of abuse, they should keep a few things in mind. First, they should cooperate with the agency no matter what. Failure to cooperate or choosing to ignore the allegations can only exacerbate their problems.
Next, they should gather as much evidence as possible. Gathering medical records, police reports, etc.; school records; photos, videos, texts, etc.; witness statements, and so on, are all critical in proving that there was no actual abuse.
Last, if the agency dismisses the investigation at this point, then it substantiates the targeted parent’s position that the allegations were made up. With respect to the custody case, a child protective services dismissal can be used against that parent. When the court does its best interests of the child analysis, it will take false claims into consideration. False claims are usually signs of parental alienation or custodial interference, something the courts very seriously in custody cases.

Penalties for False Claims of Abuse

The courts will impose a range of consequences when the targeted parent proves the fabricated claims made by the other. The court can change custody, from joint to sole or from sole to sole; can restrict or limit visitation; can impose conditions for visitation; can order them to pay counsel fees or can issue a restraining order. How the court will rule upon a finding of false reports will depend on several things. Patterns of making false claims, the extent of harm the child suffers as a result of the false allegations, the number of resources wasted to prove the allegations, are all things the court will evaluate.

In Conclusion

If you are the target of abuse or neglect allegations and you’re in the “winning” position then you should stay cool and let the truth prevail.  This does not mean you get to coast, it just means you should prepare your case to flush out the lies with confidence.

When Your Attorney Withdraws from Your Custody Case

I am always approached by individuals who are forced to be pro se because their attorney withdrew from the custody case. Attorneys usually withdraw for failure to pay, but also withdraw for other reasons that have nothing to do with money. A client that makes it impossible to represent them, who constantly refuses to cooperate, who habitually ignores court orders, etc. are all reasons attorneys can withdraw. No matter the reason, there are some things pro se litigants should keep in mind when they find themselves in this predicament.

Ethical Rules for Attorney Withdrawal

Most states have adopted some form of the American Bar Association’s Model Rules for the ethical practice of law. This means that every one of the fifty (50) states has its own set of rules that dictate how an attorney should behave professionally. One issue that is covered in all the states’ rules is the method attorneys must employ when they want to withdraw from representation. The ABA Model Rule (1.16(b)) states:

“a lawyer can withdraw from an engagement without cause only if it will not result in a material adverse effect on the client’s interest.”

This means that the lawyer must show “cause” for their withdrawal. In other words, they must have a “compelling reason” to be let out of your custody case.

Although states might differ on the language they use, there is a consensus on what constitutes a “compelling reason.”  It is NOT simply disagreeing on some issues in your custody case, although there are times when this is sufficient grounds. Compelling reasons are usually ones where the client is continuously involved or engaged in criminal activity. Other instances are where they fail to pay their fees or where a conflict of interest is present. These are just a few, the list of instances where withdrawal would be justified is long.

Mandatory withdrawal vs. Permissive Withdrawal

There is a difference between when an attorney can withdraw and when they must withdraw.

The instances where an attorney must withdraw are not as extensive as when they can. That is because the litigant’s right to have continued representation is paramount to an attorney’s desire to leave the case whenever they want.

Circumstances, when an attorney can withdraw, outnumber when they must because of the interests of the client. Lawyers are held to a standard that requires them to consider the legal harm in almost any situation.

Do not be fooled though, attorneys are very skilled at creating a scenario where must takes precedence, or a justified can more likely prevail.

Method for Withdrawing

In all cases, attorneys must follow a specific procedure when they seek to withdraw. No matter what, when, or why, there are procedural requirements in place for attorneys who opt to end their representation.

Most states have a formal requirement where the attorney must file a motion in court seeking the court’s permission. The specifics, however, with respect to the format, timing, in person or in writing argument may vary among the states.

Litigants have the option to object or oppose the attorney’s withdrawal, except where the client is the one requesting the withdrawal. If they can prove that there is undue prejudice or harm to their case that will result from the withdrawal, then they have a chance.

In Family Court, the standard of proof is “preponderance of evidence” which means that a party must provide evidence of at least a 50% value to support its argument. But when it comes to an attorney seeking withdrawal, this standard is automatically shifted to less than 50%.

Client’s Course of Action Upon Withdrawal

What are your options if this is your current predicament? Should you object, or should you consent, or something else? These are the questions you need to ask yourself. But more importantly, should you or could you do anything to prevent this from happening in the first place.

Your options are to let the attorney go; try to compromise or settle your issues or flat out dispute they’re trying to withdraw. If you let them go then you are forced to either hire another lawyer or represent yourself. When you do this, you are more likely to have fewer headaches dealing with the court. The court would much rather you concede than have you fight to keep an attorney that does not believe they can or should continue. If, however, you choose to try to settle your differences, the attorney will have the discretion to choose if they will continue and to set the conditions for doing so. And last, if you choose to fight the withdrawal, chances are you are going to create more problems for yourself, with the lawyer and the court.

Tips to Avoid Attorney Withdrawals

You can try your hardest to prevent the attorney’s withdrawal, which is always an option. This starts with having a clear understanding of your financial means before hiring them. You should not rush to hire an attorney when you have no reliable means to pay them to manage the entire case. I see people get desperate and hire a lawyer just because they think they should. This is a setup for disastrous consequences.

Another way to avoid involuntary withdrawal is to have an express understanding of what your responsibilities are as a client. From the moment you sign the Retainer Agreement, you should be aware of all that is expected from you. At the same time, your attorney should explain to you in detail everything you can expect from them.  You can also learn tips to work with them more effectively.

And last, you should always keep the lines of communication open. I know that most litigants’ major complaint about their attorney is their lack of communication. However, this does not release you of the obligation to facilitate discussions about your concerns, your questions, etc. with them.

Although being pro se is not the worst situation you can find yourself in, it is not the only option or best option for everyone. (Read more here on being pro se in Family Court.)

In Conclusion

At the end of the day, an attorney who does not want to collaborate with you anymore knows how to get out of your case. Even with the rules set to favor you as the client, the courts are not inclined to force continued representation.

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here. 

Related Tag: Unmarried Mother Custody

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Perjury in Family Court

Family Court is the most dramatic forum when it comes to people telling their stories. Everyone involved in Family Court all sudden become skilled storyteller. There is no other Court, not even Criminal Court, where the parties are prone to give the most salacious details of incidents. Exaggerated facts, animated recollection of events, etc. are all inherent in divorce and custody matters, particularly the most contentious ones. Believe or not, there are laws in place to keep misrepresentations to a minimum in court. Specifically, when the parties have sworn to tell the truth, knowingly lying in court is considered perjury in family court.

 

Perjury is defined as “the offense of willfully telling an untruth in a court after having taken an oath or affirmation”. (Oxford Dictionary).

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When is it Perjury?

So, there are several instances in Family Court when individuals are required to explain events, scenarios, etc. in detail. In court documents, in mediation, in conferences and in hearings/trials, opportunities present themselves to give one’s account of how things happened. Family Court is the one venue where giving testimony can seem never-ending. And there are times when an individual can unconsciously skew the facts, to get their point across.

Perjury is not a mis-telling of the facts in the court hallways, or in conversation amongst the parties with their attorneys or not, or in any other scenario where they were not placed under oath. But perjury is a skewing of the facts in court documents, in court hearings and even in depositions because in all these scenarios the party affirms that they are telling the truth. A mistake on basic personal information may not arise to the level of perjury. So, for example, an incorrect date of birth, height or weight are not considered perjury and can be corrected by amendment.

A person does not have to be a party in the case to commit perjury. Witnesses in the case can also be guilty of perjury if they make a false statement or give false testimony while under oath.

 

Proving Perjury in Family Court

Knowing what perjury is or is not just part of the puzzle. The other part is making a case for perjury and effectively proving it. Just because a person makes a misrepresentation in a court document or in open court does not automatically make it perjury. If the statement is misleading or nonresponsive, but true, then there is no perjury. So, if the individual really believes that they are telling the truth in their statements or testimony, again there is no perjury.

If that statement made is not “material” to the outcome of the case. If someone makes a false statement that has no bearing on an issue that is being litigated, then it is not material. Trying to prove perjury for every single misrepresentation, no matter how small, would place a tremendous burden in the court.

To prove that an individual perjured him or herself the accuser must prove that the statement is false, that they knew it was false and that it was material to the outcome. Even when all these elements are met, the courts may not penalize the perjurer too severely.

 

The Consequences of Perjury in Family Court

Sometimes proving that someone made false statements or misrepresentation in Family Court is best addressed by impeaching them.  Because perjury is so rampant in Family Court expecting actual punitive consequences is a stretch.

Perjury can be seen as a civil liability, as a crime or merely as a violation. Civilly the accused can be subject to libel or slander if the target of the false statements can prove actual damages, or the court can impose its own fines pursuant to its laws. Criminally, the perjurer can be prosecuted and ordered to pay fines, be imprisoned or both. Or the perjurer can be held in contempt if the court finds that he or she violated the court’s inherent principles to act with decorum. In Family Court, the consequences usually involve a charge of contempt or a ruling on an issue that is the subject of perjury. For example, if a party has been proven to have committed perjury by lying about the value of his or her assets, the judge may order an equitable share of those assets to the non-perjuring party as punishment. Occasionally the courts will impose financial sanctions, such as attorney’s fees, where perjury was proven.

 

In Conclusion

This article is not intended to encourage lying in Family Court or to show how to lie in Family Court successfully. On the contrary, my intention is to enlighten you on the reality of Family Court and how perjury is viewed there.

If you wish to schedule a free consultation to discuss how I can help you in your divorce or custody please schedule here.

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