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.

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

family court matters

What You Say in Family Court Matters?

Nowadays there is hardly any distinct lines between what is acceptable language in the courtroom and what is not. Judges are learning slang or urban terms, lawyers speak in colloquialisms and litigants say whatever comes to mind. However, the terminology you use can make a difference in how you are perceived, how you are treated and ultimately, how the judge rules in your case.


Grandparents Rights to Visitation & Custody 


Legal Language Defined

Legalese, or formal legal language, is so nuanced that no one expects the average layperson to familiarize themselves with it for family court matters. In fact, it’s usually only used only in writing, but is not unheard of to hear it being spoken by jurists. Legalese consists of legal phrases and terms that serve a purpose. Lawyers use legalese to help persuade its audience or to help predict an outcome in a case. Some use the term “legal jargon” interchangeably.

Legal terminology, on the other hand, is much more commonplace with help of the internet and it’s accessibility. Legal terminology is more broad in its use, which means it’s a matter of replacing a common word with a legal one. For example, in court you may hear the judge refer to the next court date as an “adjournment” or when there is conversation at the bench as “off the record”.

The Impact of the Use of Some Concepts

In the past five years, certain terms have been used profusely in divorce and child custody cases in Family Court. And even though they are commonly used and often understood, using them to assert or defend your case requires discernment. Terms like, narcissist, parental alienation, high conflict, etc. should be used strategically in your case.

Let’s look at the term narcissists first. This is an actual classification in the DSM-5. The Mayo Clinic defines as “a mental condition in which a person has an inflated sense of their own importance, a deep need for excessive attention and admiration, troubled relationships, and a lack of empathy for others”. However, overuse or misuse of this term can render negative results in Family Court. Family Court judges are not necessarily trained in mental health but are forced to make rulings on cases where mental illness is prevalent. They have to deal with the most complex set of issues in the shortest amount of time. It seems prudent to accept any insight with respect to mental illness but they don’t. Having a litigant self diagnose their ex or STBX can ruffle the judge’s feather. In fact, it can actually backfire on you.

Same thing with any toxic personality disorders, like borderline personality disorder, judges are not in favor of giving credibility to anyone giving a psychological diagnosis when they are unqualified to so. Furthermore, they are not oblivious to the unfair advantage it may give the diagnosing party.

Next, with respect to parental alienation there is more of a stigma associated with the term which warrants more careful consideration. Parental alienation, as defined by Amy J. L. Baker, PhD, is “children being encouraged by one parent, the favored parent, to unjustly reject the other parent, the targeted parent”. Dr. Baker lists 17 strategies typically used by the alienating parent, which are grouped into five categories. (Go here to read more www.amyjbaker.com)

Historically, judges in family court matters refused to believe or accept the notion that parental alienation was a real phenomenon with actual deleterious effects. Recently, though, more judges are becoming informed about the concept and its impact on children. Again, however, judges are aware of the fact that some parents misuse the term. Some parents, whether for or against the syndrome, abuse the use of the term to justify their actions or inactions. This only puts judges in a position tougher than usual.

What Should You Say

For starters, you should always stick to the facts, this means the facts from your perspective not anyone else’s. If you do not have direct knowledge of a diagnosis or concept then you should not assert it. Next, be very detailed in explaining the impact of your ex’s or STBX’s behavior on your child(ren). Describe what you observe with respect to behavior, moods, etc. And last, answer questions asked by the court directly not volunteering things you read somewhere or heard on YouTube videos.

To Sum it All Up

You should be familiar with some common concepts of course but that’s the extent. Even though there may be some validity to the phrases, concepts, etc. if you have no intentions on actually calling an expert as a witness, be strategic.