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

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 Family Court.

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 Custody 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. 

Join my Facebook Group for more support and resources 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.

Family Court
Family Court Frequently Asked Questions

[booking startmonth=’2021-6′]

 

As many of you know, I am quite active in the online space with my audience.  This is very helpful for me personally and professionally, as it allows me to stay current on the issues like the family court matters that are most important to my community.  On a personal level, I am able to connect with people from all over the world, which is rewarding itself.

 

One of the things that I do daily is encourage my audience to ask questions.  As a result, what I have noticed is that there is a lot of misinformation being circulated.  In addition, I realized that people tend to have the same concerns regardless of their location, status or position (in their case).  So I have decided to dedicate this week’s blog to those common questions, providing some clear answers.


Parent Education in Divorce or Custody Matters

Frequently Asked Questions

 1. Should I file a divorce or custody petition first?

Read my blog on this topic but the short answer is, it depends.  If you are seeking divorce on specific “grounds” like adultery then you should file first.  However, if your circumstances meet the requirements for a “no-fault” divorce, then it may not matter.  In situations where there is property and you are concerned that your ex/soon to be ex will hide it, then you may want to file first.  However, filing first does not guarantee better success, it may just afford you the opportunity to better prepare.

  1. Is there a difference in shared custody vs. joint custody vs. 50/50 custody?

Shared custody can be anything where the child(ren) split their time at both parents home.  However, that split can be anything above or below 50%.  Joint custody usually refers to joint legal but can include physical too. 50/50 custody usually means that the child(ren) spend equal time between both parents homes. I covered this topic at length here.

  1. How should I prepare for filing for divorce?

Preparing for divorce, whether you are filing or waiting to be served, should start as early as possible.  This does not mean that you should rush to give up on your marriage but it certainly means that you should start to take the necessary steps the moment you’re convinced that divorce is impending. Gather documents, i.e. deeds/lease agreements, financial statements, credit card statements, receipts, etc.; contact all providers i.e. medical/health, schools, insurance, etc.; change passwords; inventory possessions; records, etc.

  1. Should I work with an attorney?

Having a lawyer represent you in your divorce or custody case is not an absolute must.  In certain circumstances you should certainly have an attorney represent you, but even in these instances the extent to which they provide representation should be considered.  If there is a dispute over custody, alimony &/or property distribution then having a lawyer on your side can certainly help.  However, be wise about whom you choose to work with and be sure they are familiar with the nuanced issues of your case.

Note: Visit here to read more about alternative options.

  1. Can I use text messages, emails, etc. as evidence in my hearing or trial?

This is a very common question and requires as much attention as possible.  Yes, text messages, emails, etc. can be used in court for evidentiary purposes.  Although each state has their own rules with respect to how these are admitted, they are generally allowed to be used to prove or defend your position in court.

Note:  I did a video on this topic on my Facebook business page.

Finding & Using Resources

Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless.  When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information.  It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions.  Having gone through the process helps, but it does not qualify them to give you legal advice since each case is very different.

I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey.  Most family law attorneys will provide a free consultation so cost should not be a deterrent.

In Conclusion

 Always, always, always ask questions and seek answers.  At the same time, use discernment to decide if the source is reliable.  There is an overwhelming amount of information relevant to divorce and custody so filtering is important as well.

If you wish to schedule a consultation to discuss how I can help you please feel free to so here.

Divorce Settlement Agreement

The divorce settlement agreement constitutes 75% or more of the contested divorce cases. Courts are set up to encourage litigants to settle all issues including property distribution, child custody, child and spousal support. Pretrial conferences, settlement conferences and mediation are all part of the program aimed to settle. Divorce settlement, however, does not always take enforcement into consideration. Enforcing settlements are usually another huge piece of the pie.


Dating During Divorce 


Divorce Settlement Agreement Strategies

From the filing of the first pleading, usually the complaint, the process proceeds on the settlement track. The complaint, ideally, lays out all of the details of the case some of which are not really material. The rules of procedure affords great latitude with respect to making allegations in the complaint. Then the opponent has the opportunity to respond with defenses and/or denials that the court can “strike”. This particular phase sets the stage for settlement when the case gets to initial conference.

From this point on, each meeting is pretty much centered around resolving anyboutstsnifng issues. In fact at times the judge will use persuasion to encourage the parties to settle. The judge will give a hint of suggestion of how he/she will rule should the case go to trial.

Also, the time lapse between conferences is strategically designed to give the parties the opportunity to negotiate settlement.

Pitfalls of Settlement

Although the courts maintains an environment conducive to settling, it’s not always the best way to proceed. Although it’s usually cost beneficial for all involved, it can set either of the party up for failure.

Negotiated settlements have inherent flaws, as much as they have advantages. First off, it’s imprudent to enter into settlement talks if discovery is not complete. The discovery phase is always tricky in divorce cases. One or both parties are often apprehensive about turning over financial, personal and health information to the other. It’s a rare instance where both parties fully disclose every fact, document or authorization related to the issues in divorce.

Second, as I mentioned above, sonetimes judges strongly urge resolution for reasons unrelated to the particular case. This can unduly influence either party to give in to these suggestions regardless of how fair they are.

Third, unavoidable distractions can also affect how successful settlement talks can go. Emotional and mental volatility are often the source of uneasiness

Enforcing Settlement
It’s no secret that coming to an agreement is entirely different than getting both sides to stick it. Especially in family law, people often find reasons to justify deviating from the terms of their settlements. Financial changes, remarriage/new baby, debt obligations etc. to name just a few reasons.

More than half of divorce settlement agreements wind up being hauled into court for enforcement, modification and/or contempt. The agreements do not come with a gatekeeper to monitor it’s execution so at times they are not worth the paper they are written on. Lawyers, mediators, parenting coordinators etc may try to help facilitate the execution of the agreement but they’re efforts are often futile.

Enforcing settlement agreements requires court intervention more often than not. Rarely is there ever an incentive for the violating party to voluntarily comply. So the opposing party must employ the court if they want to the terms of the agreement implemented.

In conclusion

A forced settlement is not better than any settlement at all no matter how much pressure you’re under. You would be cutting of your nose to spite your face. Coming to an agreement is not always a bad thing, it just requires a rational mind and tempered emotions.

If you would like to discuss how my consulting, coaching or Unbundled services can help you on your divorce or custody please schedule a free 15 minute consultation.

Contact Us

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.

Contempt in Family Court
Making the best decisions

I’ve touched up contempt in family court several times in the past. But what is or is not contempt in family court matters is worth a lengthy discussion. It is defined as “the offense of being disobedient to or disrespectful toward a court of law and its officers…”.  (Wikipedia) This covers orders, rulings, decisions issued by a judge of court.  So basically when a party to an action is ordered or directed to act or not act and they do the opposite, they are acting in contempt.


Change to Child Custody Arrangements during Covid


Family Court Order vs Other Court Order Violations

Family court orders typically come about by examination of a confluence of things.  Laws, statutes and regulations are just a part of what comes into play. Social norms, public policy issues and bureaucratic influences also have a significant impact in family court decisions.  In other courts, criminal court for instance, the application of the law has a much bigger influence.  And as a result, acts of contempt are generally more explicit.  The court order is usually clear with respect to consequences for disobeying it.  Violating a criminal court order usually entails a fine and/or incarceration because the violation is usually against the court itself or public policy. In family court, on the other hand, no such clarity exists.

First off, making a “finding” that contempt actually happened is not as clear cut.  Non-compliance is usually the court’s finding, which is very different from contempt.  When someone violates a family court order by not paying child support or spousal support, not following a custody/visitation order or ignoring provisions in a divorce judgment they are not necessarily in violation against the court itself.  Their defiance is against the other party. Next, family court violations need to be examined in context, not on isolated bases. This too, makes them privy to being viewed as less egregious as criminal court violations.  And last, family court orders tend to include lots of provisions where execution is conditioned upon other provisions being executed.

Actual vs. Perceived Contempt in Family Court

As I mentioned, what may be thought of as contempt may in fact be viewed as violations, non-compliance, etc.  Although by definition there is no distinction, what matters is how the court views it.  The court is the factfinder and it will determine what rises to the level of contempt using a different level of scrutiny than it would in any other court.

Let’s examine a few scenarios to get some insight on how the court views violative behaviors.

  1. Court order directs that the non-custodial parent (NCP) pays the custodial parent (CP) $500 per month for child support.  After 3 months of missed payments, late payments or partial payments the CP seeks contempt against NCP.
  2. Court order states that the NCP is to exercise their visits with the child every Fri. eve at 6PM until Sunday afternoon at 4PM. In the past several months, CP repeatedly shows up to drop off an hour or two late.
  3. Court order, by way of Divorce Decree, orders that the Defendant is to turn over all personal property in their possession within 30 days of the Decree. 90 days have passed and Plaintiff still has not received any such property.

Although all of these scenarios clearly exhibit some violations, non-compliance and/or disobeying court orders, they rarely arise to the level of “contempt” in a family court setting.  However, when these acts are considered in context, reviewed in light of other issues in the case, a finding of contempt is possible.

Strategy
Strategy

Making a Case for  Contempt in Family Court

Although the elements of contempt are usually spelled out in some form, the courts usually use a less stringent standard of proof in family court.

The key to getting the court to make an actual contempt ruling requires a strategic approach.  You need to look at the violative behavior in with a look at the entire case. This means looking at past behaviors, considering the judges position of related issues, social norms, local practices, etc.

So when you are faced with a repeated nonpayment of support it makes sense to consider the NCP parent’s track record with paying, if there is an issue with ability to pay because of a change in employment, if the court had to reprimand NCP previously for nonpayment and so on.  Additionally, you should ask yourself “what is your judge’s history with this particular violative act”.

When the issue is with late drop-offs or early pickups, consider things like quality of visits, ability to makeup for lost time, the harm done to the children, etc. Again, what your judge’s views are on this issue, what the judge would say or do in this situation, etc. are also very important.

When you are faced with making a case for contempt, one great source to refer to is the actual order itself. Review it over and over again if necessary, to see if there are any “gray” areas of interpretation.  Read it from the other party’s perspective to see if there are any viable potential arguments they can make.  Read it to with a view from the judge’s viewpoint to see if their intent was clearly stated.

Sum it Up

In conclusion, understand that what you may perceive as a clear case of contempt may not be considered such by family court.  It is a good idea to think, plan and strategize on what your next move should be in the event of violations of your court order.