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.

Once a divorce or custody case starts in Family Court there is usually a process in court. Unless the parties agree and filing the papers is just a formality, every case is set to proceed down the same path. The objective of that path is to facilitate the process by identifying issues, resolving issues, and getting a final determination. Each stage of the case has a specific goal and serves an exact purpose. To litigants, this process can seem confusing, unnecessary, and at times, prejudicial. But the process can be used to your advantage as a litigant if you would keep several things in mind. Strategy entails gathering information whenever and however you can, the court appearances are ideal in that sense.

 

The Initial Appearance

The Initial Conference itself is usually a brief meeting. Although all parties are required to appear, the way you appear is up to the court (via phone, video, or in-person.)

A final determination of anything asked for in the petition or motion is unlikely unless the parties agree to it. However, there are instances where temporary orders are issued depending on the parties’ requests, the immediate need, etc.

The Initial Conference is your first opportunity to gauge what the “real” issues of the case are. When crafting your strategic game plan, one of the principal elements is that you gain an understanding of where the opposing party stands. What this means, is that you need to know what their strengths and weaknesses are. You might think you know what they are, but you will get confirmation at the initial conference. The judge will want to know what the issues are and will more than likely, give some hints as to which issues are “real” issues.

In addition, the Initial Conference is your chance to familiarize yourself with the court process, the key players, and the judge’s demeanor. These are all key elements to focus on when creating your game plan too. Your case is not just about the parties, the law, and/or the lawyers. There is an entire process that and that entire process has a significant impact on the outcome of your case.

And last, you are giving the court to make its impression of you. You get to determine that. So many people are intimidated by the court process when you get to dictate how it goes. You must learn to be calm, focused, and prepared as you only get one chance to make a first impression.

 

How to Prepare for the Initial Conference

Preparing for the Initial Conference efficiently is important. However, being intentional in how you prepare is critical to the strategy for your case. In other words, plot every step or tactic you intend to use at the actual conference. Review the opposing party’s petition or motion to look for key things to focus on. You want to focus on these specific things to watch for credibility in statements, to check for consistency throughout the process, and to make notes for Discovery requests.

Next, you want to do as much research as you can before the actual conference. Research the laws, the procedural rules, the attorneys, and the judge. You might not find exactly what you expect, but you should look to see what’s out there.

And last, you should have a set of questions in your mind. You might get a chance to ask specific questions and that’s fine. But you should pay attention because although your questions might be unasked, you might still get answers to them.

 

After the Initial Conference

Once the conference is over, you should have a much clearer picture of what you need to do next. You should feel confident, determined, and empowered, not defeated. Remember, this is your opportunity to determine the direction you want your case to go in. Not let the antics of the opposing party distract or discourage you.

You should be able to fill in some key parts of your game plan.

 

In Conclusion

Too many litigants overlook the opportunities to take control of their case presented in the Initial Conference. They allow their emotions to take over and lose sight as a result. Every interaction, encounter, etc. is an opportunity to gain leverage. Take advantage of it.

 

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.

So many people have been asking about pandemic parenting, co-parenting, custody, or visitation.  The real issues arise when one of the parties, or child, comes up with a positive test result.  Up until recently the thought of positive test results for many, especially children, was illusive.  But now with these new variants, that’s more of the reality for many.  Regardless, these times we are currently experiencing can’t compare to any other such time in our living history.  So the courts, like its constituents, are still trying to make sense of all of it.  Things like, to vaccinate or not vaccinate, to allow virtual school or in-school sessions, to enforce visits or suspend them…are all examples of issues plaguing the Family Court.

 

Pandemic Parenting

Pro-vaccination vs Anti-vaccination Parents

It is no secret that most judges are very conventional in their view on vaccinations, the Covid vaccination is no different.  So in the past when a Family Court judge was presented with the issue of whether a minor child should be vaccinated when one of the parents opposed, the outcome was almost always predictable.  Judges would almost always override the opposing parent’s authority by ordering that the child gets a vaccination, except in rare instances. The reason judges have always been mostly pro-vaccination is that they relied on science, data & statistics to support their position.  The only exception was when the child’s treating doctors recommended against the vaccinations for medical reasons. Even then, the level of scrutiny was always above the norm.  Judges are almost in agreement that Covid vaccinations are the safest bet for all involved.

 

Virtual School vs. In School Session

This issue is a new phenomenon to some degree.  If either parent has sole legal custody, then this is not an issue, that parent gets to decide.  The only exception is if the other parent seeks to change or modify the sole legal custody order. In that case, the issue of in-school vs. virtual can actually serve as the basis for the modification. In the past, the issue that most resembled this one was homeschool vs. in school.  The courts in those cases were inclined to rule in favor of in school.  This started to change in the past few years when homeschooling became a viable option.  When the data showed that homeschooled children were actually doing better academically it became easier to influence the courts.

However, the issue with Covid is a little different.  Academics is not really the focus in these pandemic times, it’s about safety.  This makes this issue very tricky because it’s not necessarily the safety of the target child but of the entire school population.  Judges are forced to consider whether the parent’s “right” to send the child to school should be trumped by the safety of the public (school). Although judges are still obligated to apply the best interests factors (which vary from state to state) to help it make its determination.   But even with that in mind, they can’t ignore their duty to keep the public’s safety in mind even if they don’t state it.

 

Covid Positive: Suspend Visits vs. Enforce Visits

This is where things get very volatile.  If a parent (or their paramour) or a child tests positive, should the child stay where they are, return home, or do something else.  Better yet, what happens if the child is in a blended family and one of its members tests positive, how should visits happen then?  These are all very likely scenarios and have been happening a lot.  The courts are all over the place with this issue.  In New York, for instance, the courts are ordering that custody orders be exercised no matter what anyone’s (or their family members’) Covid status is.  This means that if the child has Covid or the parent who is supposed to have visited has it, the visits are to happen regardless.

The other scenario is whether a positive child who was exercising visits with a non-custodial parent should return to their home. Either way, the rationale is that both parents still have rights to their time with the child.  The courts have always taken the position that parents can take care of their sick child during their respective visitation times.  And them testing positive for Covid doesn’t change that.

The CDC, on the other hand, suggests quarantining and so are doctors who are treating the Covid positive parent/child.  They are recommending that the child not expose anyone else to the virus by leaving their environment.  So who should influence the judge more, the rights of the parents or the medical community? This is not really a “best interests” issue, as much as it is a public safety issue.  The child’s well-being might be affected if visits are suspended because of either way someone is missing out on their time.  But the time can be made up once the positively tested party is cleared.

 

Theory vs. Practice

In a practical sense, the only issue that might be worth going to court over is school.  In theory, to vaccinate or not to vaccinate is disputable. But what if the other parent gets the child vaccinated before court involvement?  You can’t unring a bell, meaning you can’t unvaccinated the child. So the issue then becomes one of Contempt.

The same with the visits, if the disputing parent decides to proceed to court it might be too late.  By the time the case gets in front of a judge, the visiting time has already passed.  So, again, the issue presented to the court would be about Contempt, Modification, or both. Either parent can conceivably seek to modify a current custody order based on how this issue was handled. The way the other parent exercised judgment, for example, deciding to ignore the doctor’s recommendations, can be considered in a modification case.

The school issue, on the other hand, is always a relevant one.  It’s the only one of these issues that can change at any time.  So, in other words, it hardly ever becomes a moot issue.  The judge’s decision has the propensity to take into account things that might happen in the future.  So it’s best to get the court involved at any time when Covid, or any other issue, has a direct impact on academic performance.

 

Final Thoughts on Pandemic Parenting

The courts are still all over the place on some pandemic parenting and other pandemic-related issues.  So I strongly urge Family Court parties to get a consultation from a local family law attorney.

guardian ad litem

 

Contested custody cases requires the use of “unconventional” methods with respect to gathering facts to help it made rulings.  The parties to the custody action can appear pro se, where they speak for themselves, or by their lawyers.  But children’s interests must also be given considerable consideration with respect to custody and visitation.  This is routinely accomplished by the use of a guardian ad litem as their voice or by them speaking directly with the judge.


Collaborating with Your Family Law Attorney


GAL as Child’s Voice

GALs are typically used as the voice of the child in contested child custody and visitation cases.  The guardian ad litem is supposed to be an impartial, objective person who represents the child in high conflict custody cases. (The ABA standards for GALS Statutory Provisions For Guardians ad Litem )They are responsible for advocating the “best interests of the child” standards for their client.  They are often appointed by the court, either at its discretion or either party’s request, to report to the court the best interests of the child. They are lawyers, social workers or any other qualified professional appointed by the court.  They use several measures to gather evidence, explore allegations and to report to the court based on these.

Judge In-Camera Interviews 

The alternative to a GAL reporting to the court, the court can speak directly with the child(ren) in custody cases.  In some instances, the judge can conduct an “in camera” interview where he/she speak directly to the child in closed court (or in judges’ chambers) with a recorder or court reporter present.  The thing with in camera though, is that judges are reluctant to conduct these. They’re reasoning is that children are fragile and should be shielded from the dissension involved with custody battles. In fact, there are very few instances where a judge would voluntarily subject a child to the emotional and mental turmoil of litigation.

Guardian Ad Litem vs. Judge In Camera

Each state has a age limit for when a child can express their preference with respect to which parent they would like to live with.  Children under 12, generally, do not have a “say” and thus the GAL is most often the sole source used to help the court to make it’s determination. Children 12 or older, on the other hand, may have the option to speak for themselves.  Even though older children can speak for themselves,  the extent to which they are permitted varies. The amount of weight given to the child’s preference, varies from state to state and from case to case.

Advantages to Either Option

In some instances, it’s beneficial to opt for a GAL, as opposed to an in-camera, no matter the age of the child. For example, in custody cases where there are allegations of alienation or manipulation then a GAL may be best suited to speak on the child’s behalf.  The GAL will take the time to meet with the child; speak with each parent and/or their attorney  (if they deem it necessary); talk to teachers, medical and mental health professionals who have worked with the child; review necessary reports, notes, etc. and whatever else they need to devise an adequate report for the court.

However, in cases where in cameras are permitted then this is the better option in other cases.  In cameras, however time constraints is a big issue.  In addition, the attorneys’ input is limited as they are usually only allowed to submit a list of questions to ask the child in lieu of their actual presence.  The GAL is the only other person permitted in the in-camera, as their job is to ensure that their client’s rights are not violated by the court. The major advantage of in camera interviews though is that the whole proceeding is recorded and the parties have access to the minutes of the recording.  This can a major strategic advantage for either side when preparing for trial.  GALs do not have to record any such interviews with their clients and therefore, are not required to make any such recordings available.

In conclusion

The point is that in some cases the parties don’t have a choice, they must rely on the input of a GAL instead of an in camera.  And although they might have the option to avoid both, they should understand the limitations and benefits.