Family Court is a very nuanced place, compared to other courts.  It has its own way of implementing procedural rules, of applying the law, or enforcing litigants’ rights.  Family court legal terms and phrases, that are often misused by non-legal professionals.  Knowing what to say, or not say, is also important. (Read more here on this topic.)

One of the major complaints litigants have is that they don’t understand the “legalese” or “legal jargon” often spoken in court.  Because of this they miss deadlines, file the wrong documents, or worse, violated court orders… unintentionally of course.

It is no secret that some terms are used interchangeably, both correctly and incorrectly so, and compounds things.  Particularly for the pro se litigant, trying to figure out the “right” way to use a word often misused only complicates things even more.

This article will compare some of the most familiar terms and how they differ in meaning despite their interchangeable use.

 

Family Court Legal Terms Often Confused

 

Acknowledgement of Paternity vs. Order of Filiation

Acknowledgement of Paternity is a statement (provided by the state by way of a form) where the parents of a child agree that the man that signs it is the biological father.  This form is usually used when the unmarried parties did not acknowledge paternity at the time of the child’s birth/

Order of Filiation is when the court issues a document naming the father as a result of either party bringing a Petition for Paternity on its own or in a custody case.

 

Access vs. Visitation

Access is the term used in some jurisdictions for parenting time. Same as visitation, it is used interchangeable with access and parenting time in custody cases.

 

Adjournment vs Continuance

Adjournment is when a court reschedules a court date that was originally scheduled for motion, conference, etc.

Continuance is when a court date, usually a hearing or trial, is rescheduled by either party or court.

 

Admissable Evidence vs. Allowable Evidence

Admissable Evidence is evidence that meets the rules of evidence of a court and can be used in trial.

Allowable Evidence is any evidence that may be allowed because it does not necessarily violate any rules of evidence.

 

Affidavit vs Under Oath

Affidavit is a written statement made under oath, the person states that they are telling the truth but only in the document.

Under Oath means that the person swearing that they are telling the truth can be in writing or in person.

 

Arrears vs. Judgment of Support

Arrears is the unpaid and overdue child support or spousal support.

Judgment of Support is when action was taken by the court to reduce the unpaid child or spousal support to make either of them executable or attachable.  It can be levied against or attached to the debtor’s assets or income.

 

Attorney for Child vs. Guardian ad Litem

Attorney for Child is a licensed attorney who represents the child in court in custody or abuse cases.

Guardian Ad Litem is someone is trained to represent the child in court, not necessarily a licensed attorney.

 

Contempt of Court vs. Violation of a Court Order

Contempt of Court can be civil or criminal in nature.  It is up to the laws of the state to determine if the violation of court order can be considered criminal or civil or both.  The punishment for either can range from monetary fines, to a change in custody/visitation to imprisonment.

Violation of a Court Order does not necessarily arise to the level of contempt.  It is usually something that is menial or immaterial, as thus goes unpunished.

 

Custodial Parent vs. Guardian

Custodial Parent is the parent that has the child live with them a majority of the time.  They can be considered the custodial parent because the parents were never married and the child lives with one parent.  The court can also issue an order naming one parent as the custodial parent as well. The custodial parent can be legally determined in a custody case.

Guardian is ANY party who the child lives with for a period of time or who has authority over a child for a period of time.  A person can be a guardian on a temporary or permanent. The parents can give another person guardianship or the court can order that a person be the guardian in a custody case or a temporary guardianship case.

 

Default vs Inquest

 Default is when a Respondent (Defendant) party fails to respond to a petition or complaint or fails to respond within the specified time.

Inquest where the Respondent (Defendant) fails to show up in court for a hearing or trial and the Petitioner (Plaintiff) presents evidence and proceeds in the case without them.

 

In Conclusion

It is always advisable to familiarize yourself with the legalese of Family Court legal terms before you proceed in any case.  The progression of your case and its overall outcome are dependent on this. There are several online resources that make it easier to understand.

 

Feel free to contact me for a FREE 15-minute consultation here. 

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Your Support System, “Village” in your Strategic Plan

One major component of strategic planning is having a support system or a “village”. Not just any support system but one comprised of people with various backgrounds or roles. Of course, having family, friends, support groups, etc. is important during divorce or custody.  Your friend who has never been married has a perspective that’s different than your great-aunt who has been for 50 years. The roles or positions each of them plays, particularly because of their life experiences, is even more critical.  The reason being, you are more able to anticipate your ex’s or soon to be ex’s moves when you have different perspectives to consider. As you know, everything for me is about strategy, so being able to foresee your opponent moves is key.

 


Using Cost-Benefit Analysis to Your Benefit in Family Court


 

Assess Your Values

Everyone has or should have a role in your divorce or custody situation and their role serves a purpose. Family/friends, mental health professionals, legal experts, financial services and so on. When you take a good long look at your values, you can use the members of your support system as a guide.  Your values force you to look at the things that matter most to you and how much you want to honor them.  That means, family, health, happiness, etc., these elements should not be viewed in a vacuum.

 

Know Your Mission

This requires a look at your life journey and purpose.  It includes those values you assessed earlier on, but now has you putting those in perspective.  You should have an overall vision of where you are headed in your life post-divorce or custody (although custody can go on what seems like an eternity.) Your village also plays a part in your vision.  They can help you get there in a theoretical sense, as well as a practical one.

Divorce and custody can…I’m sorry…it will, completely uproot your life.   Your financial situation drastically changes, your emotional state is forever distorted and your mental being is constantly challenged. Your mission for your life as a spouse or even before parenthood completely changes once you are enthralled in divorce or custody.

 

Your Analysis

You need to do a SWOT on yourself and on your overall case.  Yes, you took time to assess your values, dug deeper to come up with a mission, now you need to look at your personal self.  But here’s the thing, you shouldn’t do this on your own.  Your strong and diverse support system will be ideal in helping you in this phase of your strategy.   Your SWOT analysis requires you to look at your strengths, weaknesses, opportunities, and threats.

Identifying your strengths, with respect to the divorce or custody, directs you (or your village) to look at the advantages you have over your ex or soon to be ex; the values that you have that they don’t; the resources you have and so on.

Your weaknesses, where it’s harder to be objective, looks at the areas you lack confidence; the limited resources available to you; your personality traits that make you vulnerable in this particular situation and so on.

The opportunities available to you include things like, the help and support your village can provide in the deficient areas; the ability for you to acquire skills to improve your limitations and so on.

Pinpointing threats forces you to look at obstacles that stand in your way; the potential for any change in your other positions to become a detriment and so on.

The SWOT analysis must be done very carefully, honestly, and methodically.  It can cause tons of discomfort and force you to step outside of your comfort zone, but the benefits are endless. Your village’s cooperation and participation are very important if the SWOT is to be effective.

 

Wrap it All Up

You should not go into your divorce or custody without a plan, theme, or a strategy.   Does not matter what you call it, the important thing is that you give some time and attention to developing a thorough, well thought out plan for every phase of the process.  You cannot, nor should you, do it all on your own.   It takes a combination of skills, talents, and traits to create the best strategy and that’s where your village comes in.

Take your time, get your emotions in check, and clear your mind.

 

In Conclusion

When facing divorce or custody, it is not unheard of to seek help from therapists, church, friends, family, etc.  But I wanted to show you a different perspective in how they can help you get through the process with a clear vision and plan.  You increase your chances of getting better outcomes when you take the time to cultivate a village of supporters who bring something different to the equation.

If you need help with strategy in your Family Court matter, feel free to schedule a FREE consultation here. 

Making decisions in family law can be so taxing.  The emotional, mental and financial consequences of making the wrong decision can be overwhelming.  Choosing which route to go in divorce or custody, usually involves taking a close look at a number of things. One of the things is cost-benefit analysis.

What is Cost-Benefit Analysis (“CBA”)

Historically, the cost-benefit analysis was “used to determine the social benefits of a proposed project in monetary terms.” (According to Britannica.) So it was originally used by the US military to help make the best decisions on maximizing the use of our resources.  However, businesses began to incorporate the use of this principle when they realized it helps to reach a level of success much quicker.

It simplistic terms, it is the act of giving a monetary value each available option in a given situation while weighing the benefits of each of those options against each other.  For example, if someone is trying to decide if they should buy a car to commute to work into the city from the suburbs or buy commuter passes and ride public transportation instead.  Which factors would they have to consider? What is the cost of each factor? What is the benefit of each factor? Then compare the two.  The costs for the car include: car payment + insurance + gas + tolls + parking. The benefits include: quicker time + convenience.  The costs for commuting:  monthly pass.  The benefits:  Less money.    So the costs for owning the car seem to be more than the commute.  But the benefits of the car are greater.

Application of Cost-Benefit Analysis to Family Law Issues:

Family Court litigants would want to use the CBA when they are trying to negotiate settlement, when they are choosing the best route to go when all options seem unfavorable, or when they merely want to make sure they are making decisions that have the best long term consequences.  It is not uncommon to find yourself in a position where it seems like “the lesser of two evils” or that you have to think of the long term when the short term seems more appealing.

Let me give you a more related example:

In a divorce action, the wife wants to know if she should buy out her soon to be ex (“STBX”) on the marital home of should she agree to sell. Her lawyer will tell her to sell if the STBX insists on her not keeping the home (it’s in his name) or may suggest she keeps it if she can afford it. But her friend may tell her to do the buyout so that she doesn’t have to uproot her and her kids from familiar surroundings. Her family may urge her to keep it to stay close to them. So everyone here has an opinion that serves a different interest.

But in all honesty, there are several factors to consider when it comes to property division in divorce. 1. The legal costs and fees to get the lawyer to continue to fight for either one of his/her recommendations. 2. The costs and logistical burdens of refinancing the home solely in her name. 3. Being tied down in a home that has tons of memories and maybe limiting in future desires to move. A financial costs-benefits analysis should always be done but so should an emotional costs-benefits analysis.

Sometimes it helps to separate the issue from those too familiar with the situation. Putting distance between yourself and those familiar, helps to get a clear and insightful decision. Write it out with all the possible outcomes, the consequences, etc.  Gather as much information as you can, from all available sources including your ex or STBX, so that you can weigh everything and anticipate as much as possible.

This is an excellent example of a common issue where the CBA should be applied. This is something I emphasize when implementing strategy. Negotiations, in mediation or otherwise, is much more helpful if the parties utilize the cost benefit analysis.

In Conclusion

Making informed decisions can be tedious, but they can be costly if you don’t.  Weighing all the financial benefits as well as the emotional and mental ones can save you tons of stress.

If you need to discuss how my services can help you to negotiate settlement, please schedule here. 

Family Court is an experience. Once you find yourself in enthralled in the experience it is imperative that you prepare yourself.  There are often more questions than answers and this causes even more tension.  The way you speak, the attitude you present, the thoughts you share – these all play an integral part in how your case is received and how it is viewed from the court’s perspective.  So I wanted to take time to share some things with you based on the various roles I played in the family law arena. So learn these family court practical tips here:

 

Family Court Practical Tips

Communicating Effectively:

There’s a strategy to effective communication with anyone in Family Court, your ex or soon to be ex, lawyers, judges etc. The first thing, that I notice most people fail at, is LISTENING with objectivity. Way too often we focus on the lies, the put downs, etc. so we formulate a response while the other person is talking. This has been proven to be ineffective in custody and divorce cases. It’s not easy, especially when dealing with a manipulative, controlling opponent but it’s something you MUST learn to master if you want to prevail. Family law is the most volatile area of law, so it brings out a variety of emotions.  But not being able to put emotions in check can ruin any intentions of reaching your goals.  So let the lies be told, let the accusations flow and when it’s your turn you address them with a focused mindset.

One thing I do consistently to master this is anticipating the worse and practice my reaction.  I do this as often as I need to until my body gives me the sign that it’s “OK”.  It works!

 

Etiquette in the Courtroom:

Way too often Family Court litigants complain that the judge does not or did not listen to any of their major concerns when it came to their divorce or custody case. Although family court judges get the worst wrap in the judicial system, they are human. They can empathize with you if you learn to speak their “language”.  There is a decorum and protocol that should be used when dealing with the court.

Here are some key tips:

  1. Always address them with respect using “Your Honor”, “Your Magistrate”, etc.
  2. Don’t ever let your emotions cloud your judgment. (This is not the same as not showing emotions. Showing emotions can be a good thing at times.)
  3. Be persistent with the issue you are trying to get their attention on. This does not mean to ignore what the court is asking or emphasizing. It means being adamant about stating your concerns within the parameters established.
  4. ALWAYS, ALWAYS, ALWAYS show the court that you are willing to work on a resolution. Now is not the time to be insistent on things going your way. If your ex or soon to be ex is the one being difficult, let them be the one to show that to the court. You don’t have to be the one to say that they are not cooperating.
  5. If you see the judge leaning in a particular direction with a decision that is not in your favor, offer a compromise that addresses exactly what he/she is concerned about. For example, if the court has an issue with the fact that the other parent/party is not getting enough time without having overnight, then offer an extra day, more hours, video chats, etc. Do NOT disregard the court’s concerns by making excuses for not going along.

 

Presenting Your Case:

It’s prudent to give a lot of attention to HOW you present your case in Family Court because things can backfire on you in an instant.  (Read more here on what choosing your language carefully.) It is no secret that I focus primarily on strategy in my work to show Family Court Practical Tips to my clients.  So, a large part of how I help clients has to do with “packaging” their case in a way that is going to increase their chances of getting the best outcomes.

So, your concerns, your interests, your objectives all need to be carefully prepared.  Preparation, organization, formulation all plays an extremely role in how the case proceeds from beginning to resolution.

Take the time to carefully, I mean carefully map out how you will present your case.  It takes knowledge, guidance, and persistence to be able to do this correctly.  Come up with a strategy and stick to it.  Be sure to include how you will carry out every step of the strategy.  You can’t anticipate EVERYTHING, but you can keep an open mind and be ready to react when necessary if your strategic plan is rock solid.

 

In Conclusion

There are tons of tips I can give that will help you get better outcomes in your case. I can focus on explaining the law but that’s not going to help you as much as giving tips on strategy.

 

If you would like a FREE 15 min consultation to discuss strategy in your divorce or custody case, click Here.

A lot of people think stay-at-home moms are a thing of the past.  There are certainly tons of people who have no idea that dads stay at home too.  The decision to stay at home can be based on a variety of reasons but the main one is financial between the parents and divorce. The costs of daycare have skyrocketed in the past decade, making it more logical for one parent to stay home than pay. There are a lot of things that should be taken into consideration when the family makes this decision.

 

The Impact of Divorce On Stay at Home Parents

There are several things that come up in divorces, but particularly in one where one party was the stay at home or homemaker. Finances is a major issue in households with one wage earner when it comes to divorce.   Alimony or spousal support, child support and property division are all common topics that require attention when a divorce action is started.  The stay-at-home party usually needs some financial support to continue while the wage earner usually disagrees.

  1. Alimony or Spousal Support

Most states have a law that allows litigants to sue the other for financial support.  Each state differs in what it considers but some factors are pretty much across state lines.  For example, the duration of the marriage, the employability or work history of the parties, the financial resources, just to name a few.  Most states limit alimony to a set number of years based on the duration of the marriage, the age & health of the parties and the number of years it would take for the non-wage earner to become gainfully employed.  Some states, particularly community property states, do not have any laws for alimony.  Community property states that ALL property acquired during the marriage is subject to equal distribution.


Property Division in Divorce


The stay-at-home parent who was never employed or has no employable skills, due to being out of the workforce, has an advantage. The “employability” of that party is a major factor to consider in how long alimony should go on for.  As does their financial resources, the time it takes for them to find a job and the standard of living they enjoyed during the marriage.  These are all the factors specifically relevant to stay at home partners or homemakers.

  1. Property Distribution or Division

Property is subject to be divided in the divorce when it was acquired during the marriage. Property division laws follow one of two principles.  Some states have “equitable distribution”, while others are “community property” states.    Equitable distribution laws look at what is “fair” to the parties based on a few factors.   Those factors can include the contribution each party made to the acquisition of the property, the length of the marriage, an award of alimony (it is amount and duration) and the loss of health insurance benefits because of the divorce.  In community property states, however, the marital property is divided equally no matter what if it is considered marital (as opposed to being classified as separate property.)

  1. Child Support

Child Support is determined by the state’s guidelines (statute) and is therefore usually straightforward with respect to calculations.  The problems come up when the wage earner is self-employed, works “off the books”, gets high commissions and bonuses or something similar where income is difficult to determine.  So, with respect to stay at home party in the divorce, the only issue that is highly relevant is if the guidelines allow for deviation from the calculations.   Deviating from the state’s guidelines usually requires that certain elements be present in your case.  For example, in New York the courts are allowed to deviate from the Child Support Standards Act (“CSSA”) if the combined income of the parties is $154,000 or more.

So, if the wage earner in your case makes a reported income of at least $154,000, the court can look at each parent’s finances; educational needs of the parents; the income differences between the parents; the lifestyle if the family had remained intact-these factors are relevant in stay-at-home situations.   Although each state has their own guidelines, they may have similar provisions for considering the stay-at-home parent’s circumstances.

  1. Child Custody

When it comes to child custody, it is conceivable that the stay-at-home parent would be in the better position to gain custody of the children.   However, the best interests’ factors help the court determine who should have custody, physical and legal.  (Read here for the best interests’ standards.) The parent that stayed at home with the children is not automatically the more “fit” parent or the one that will be more likely to fulfill the children’s mental, emotional, physical, and intellectual needs. Parents who work outside of the home can be considered as “fit” or as suitable to provide a safe, loving, and nurturing environment as the homemaker parent.


Best Interests of the Child Custody Each State 


Only some states have specific best interests’ factors, while others have more like guiding principles. The states that have set out factors have implicitly left out the financial resources of each parent as a top of the list consideration.  However, some states have factors that have a more direct impact on the circumstances of stay-at-home parents.  Factors like, the need for continuation of a stable home, adjustments to school and community and parenting ability to provide a safe, nurturing environment.  These factors can have a negative or positive influence on custody since the financial means of the stay-at-home parent will be disrupted.   Maintaining a connection within the community the children are most familiar, staying in the home they are most familiar with, and parenting ability are all indirectly (or directly).  Stay at home parents must make huge adjustments, mainly because of finances, that will cause some inevitable disruptions for them and their children.

 

In conclusion

Deciding if either parent should stay home to raise the children and be a homemaker is a decision that requires the undesirable thought of its implication on divorce.  Although it might suit the family’s circumstances at the time, it can definitely create issues later on.

 

If you wish to discuss our services and how they can help you in your family law matter, please feel free to schedule a FREE 15min consultation.

A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters.  This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.

 

Constitutional Safeguard vs. Having Father or Mother States

So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”.  Not that it is not now, but before the 1970s, it was much more widespread.  As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.

However, today most father and mother states have custody laws that do not explicitly favor one over the other.  If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution.  This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other.  For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.

 

The Neutrality of the “Best Interests of the Child” Standard

Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody.  It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being.  And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.


Best Interests of the Child Custody Each State


States that do not have specific factors leave room for courts to interpret them the way they see fit.  This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child.  In these particular instances, they are able to favor one parent over the other.  So from the litigant’s perspective, it can appear to be a father or mother state.

This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption.  The belief that you have the upper hand may actually cause you to be “lose” custody.

 

 Joint Custody as the Presumption

Some states have a presumption of joint custody being in the child’s best interests.  This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise.  So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption.  She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.

Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.

In Conclusion

The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling.  However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard.  Be prepared for the unexpected particularly where someone tells you that you’re in a “mother” or “father” state.

 

 

 

 

 

 

 

Child Custody Home Inspection: In child custody cases, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.

 

What is a Child Custody Home Inspection?

Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.


Best Interest of the Child Custody in Each State


 

How You Can Use the Inspection to Your Advantage

Although a home visit by CPS is meant to be objective, as a parent you could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example but do not overdo it. Show the worker your child(ren)’s favorite space, activity or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space in clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; nurture their development; support them emotionally and foster a relationship with the other parent. You can ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.

Use this opportunity to give the worker what he/she needs in the event they are called a witness in your case. But again, be careful because it can work both ways you must be mindful of what you say and how you say it in custody cases. Focus on the best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.


What You Say In Family Court Matters


 

The Weight Given to Reports in Child Custody Home Inspection

The court defers to home inspection reports significantly.  The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow up visit.  In addition, either party can request a follow up visit if they believe that something important was left out or overlooked.  The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.

If either party objects to what is in the report there is recourse. They the opportunity will more than likely must “impeach” the worker that conducted the inspection.  If the objection is to something someone else said, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay”.  These third-person statements are subject to being precluded under hearsay evidence rules.

The worker that does the report is human too, they make mistakes.  Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.

 

In Conclusion

Home studies, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases.  No need to dread them, to avoid them or try to manipulate them in any way.   You can use them to your advantage as long as you are prepared and informed on how to do that.

Please feel free to read my other blogs here.  Also, watch my YouTube channel for live stream discussions on family law-related topics.

Take advantage of my free 15 min consultation.

To commence any action the Petitioner, or person who is pursuing the action, must have the other party “served” with a copy of the Complaint. This is a requirement in any type of case where the other party is an individual or entity. Having someone served in a divorce or child custody case can be quite a challenge and considers several things. I want to address some of those things here to help facilitate the process in family law much smoother.

 

Why Serve the Opposing Party in Family Law

The US Constitution Due Process clause, particularly the Fourteenth Amendment, affords each citizen the right to live their life free and fair if certain measures are in place.  The specific language that no one shall be “deprived of life, liberty or property without due process of law”.  This basically means that “fairness” must be at the center of all government procedures with respect to its citizens.  And the process of serving litigants in an action is one of those procedures that must use fairness and notice.  The parties are deprived of fairness, if they are not put on notice or if they are unduly burdened by being sued in a jurisdiction that has no authority over them.  The procedural rules the states implement regarding service of process address these issues.


Perjury in Family Court


 

How to Serve the Opposing Party in Family Law

Each state has its own procedural laws regarding service.   The basic premise of each of them is to give the parties appropriate and adequate notice of legal action in court or administrative body, to exercise jurisdiction over them. The court, or administrative tribunal, cannot exercise jurisdiction over a person if the person was not properly served.

The steps to serving a party in action include:

 

Planning to Service of Process on the Opposing Party

So, from a strategic standpoint, I am all about strategy in all the services I provide, knowing when to serve the other party takes careful thought. Of course, within the purview of your state’s procedural rules, there are times when you should plot out service.  We know the reasons the legal reasons why a party should be served, but thinking about the practicality of serving them is important.

Opposing parties have a time limit to “answer” the Complaint they were served within a divorce or custody action.  The clock starts from the time they are appropriately served and failure to respond within that time can lead to a default judgment.  (Default judgment limits the ability to claim any defenses, counterclaiming.) So, if you want the case to move faster so that you can get a resolution faster, then ensuring effective service is prudent.

The other party has the right to raise defenses in their Answer or Response to your Complaint.  If you know that the defenses, they plan on raising are time-sensitive then you would want to plan the service of your initial Complaint around that.

If you are concerned about your safety or the safety of your personal possessions and how service of process can jeopardize these, then you need to make special arrangements.  Domestic violence officers, advocates, etc. can help you develop a plan to have the other party served while keeping you, your family, and/or your things safe.

 

In conclusion

Serving the opposing party is a must in family law matters and can make a difference in the overall outcome.  You should consider the details of this aspect of the case before you start.

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).


Parenting Access in Child Custody


 

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.

Family court has proven time and again that their agenda appears to be quite opposite of what many of us expect. Especially with respect to child custody and parenting time. The standard is the best interests of the child but that does not always seem to be match the outcome of court rulings. A lot of times parents think they are doing what falls in line with the best interests standards. However, to their dismay they find out that their efforts are often minimized, ignored or even, penalized by the system.

Parenting access is an improvement goal of family court. Parenting access is the time the noncustodial parent gets to spend with their child, to communicate with their child and be informed of important things in their child’s life. This article will address how Parenting access is factored in the child custody case.


“Good” and “Not so Good” Co-parenting is Still Coparenting


The Best Interests Standards in Child Custody

The best interests of the child in custody matters are the standard all the family courts use to decide what is best for children mental, physical, emotional, and intellectual well-being. There is no specific law, but each state has come up with its own set of factors to help it make its determination.

These factors examine the child’s circumstances as well as the circumstances of the parents when the issue is custody. The objective is to ensure that the child’s needs are not overlooked when weighed against the parents’ capabilities. Conversely, looking at the parents’ circumstances from a realistic perspective is just as important. For example, the parents’ mental and physical health are factored in just as the children are.

Parenting Access as a Child Custody Factor

Another factor the courts consider is each parent’s effort and participation in facilitating a nurturing relationship between the child and the other parent. This means taking measures to arrange time for the other parent to spend with the child, keeping the lines of communication open between the other parent and child and informing the other parent of major changes in the child’s life.

(See Delaware’s list of factors.)

From a practical standpoint, rearranging your schedule to accommodate the other parent, being inconvenienced by traveling a little further than usual, allowing the child to have phone or video calls and so on, are examples of fostering a nurturing relationship. Showing that you are on board with the other parent maintaining a loving relationship with your child typically carries more weight than any “flaws” they can bring up in court.

How to Use Parenting Access Factor Effectively

As I mentioned above, everything does not always work out the way we intend them to in Family Court. Unfortunately, this happens in more cases than not. (Which is exactly why my services focus on strategy more than law, learn more here.) One of the main reasons people are highly disappointed in their custody outcome is because they fail to take the time to learn the courts ‘inner workings”. They do not learn the court’s language; it is rationale for its moves or its overall goals.

The parenting access factor is an important element with respect to the court’s goals. As I mentioned, the court has an interest in ensuring that the child has a healthy relationship with each parent. At the same token, if you are not mindful of how it intercepts with the other factors it can backfire.

Parenting access is an important factor, but it is not the only one. Most courts utilize a range of 8-12 factors to determine custody. Parenting access can be a specific factor on the list or can encompass a few of them. In other words, State A can look directly at the frequency of visits the custodial parent allows with the noncustodial parent. While State B can look at a combination of things that are not as direct but within context.

(Compare Virginia’s factors with Illinois’ factors to see how they differ in language.)

Because of the differences in how the states list their factors and how the courts examine them, litigants need to understand how they impact the final custody decision. Having clear insight on how the parenting access looks in the grand scheme of things is vital.

For instance, will allowing the child more time at the noncustodial parent’s home give the impression that the custodial parent does not want the child at home? Will encouraging communication between them support the other parent’s petition for joint custody? These are just some things to keep in mind, not as a deterrent but in planning and present your case.

In conclusion

Family Court is tricky with custody cases. If you take actions from a limited perspective, you could be shooting yourself in the foot.

If you wish to schedule a FREE 15min consultation to discuss my services in your custody matter, please feel free to do that here.