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.

pro se divorce

Pro Se Divorce or Pro Se Child Custody – Which is better?

Attorneys, judges, legal personnel all think pro se divorce or pro se child custody litigants are insane. Even with Uncontested Divorce, they believe that taking the risk of botching the child custody or child support terms is too high. For those of you who need clarity, a pro se litigant is:

“someone who argues his/her own case in a lawsuit, rather than having a lawyer represent him/her and do the legal work for him/her. “Pro se” is Latin for ‘on behalf of oneself’.”

Why Pro Se?

Now that you know what the “professionals” think about you handling your divorce or child custody case pro se, let’s explore if YOU should. There are several reasons why people choose to represent themselves. First, the cost of divorce can bankrupt you really quick. I spoke with women who said that they have spent upwards of $200,000 in legal fees for their divorce. Yes….you read that correctly. When you factor in the cost of financial experts, guardian ad litem fees, etc. it is conceivable. Next, the emotional toll many people endure is enough to lead them to the pro se route. And let’s be honest, the fisticuffs come out blazing when allegations of abuse, disputes over money and battles over custody arise. Last, the need to get it over with so that one or both parties can move on in their lives. That usually means moving onto a new relationship, journey or lifestyle. 


Will the Court Award Sole Custody 


Is Pro Se for You?

The question still remains though, is pro se representation advantageous for you? Every situation is different so don’t be influenced by your neighbors’ story. You must look at every single detail of your circumstances from a strategic standpoint. Yes the law is significant too but strategy is key. That means looking at how the law applies to your strengths as well as your weaknesses of your case. In addition, you must weigh the strengths and weaknesses of your ex’s or soon to be ex’s case and analyze them together.

In instances where there are no children and/or no property, pro se divorce or pro se child custody is often a no brainer. However, when there are children then you must examine the ramifications of any potential custody agreements and how it will affect child support. The same with respect to assets or liabilities, you must consider the possible outcomes of any split or distribution. Knowing the law is not all there is to it, you must know the exceptions too. 

 

Let’s look at some scenarios:

Scenario #1: Mr. & Mrs. X are going through a split and they both want sole custody.  Neither of them have issues with being “fit” or “unfit” so the decision will come down to several factors but one factor takes precedence. If they reside in a “presumed” joint custody state, where the courts will assume that joint custody is in the best interests of the child, then fighting for sole custody will inevitably require a trial. Not a good idea to try this without the help of experienced legal professionals. 

Scenario #2: Mr. & Mrs. Z, Mrs. Z was a stay at home mom for 10 years while Mr. Z worked full time and provided for the family during that time. Mrs. Z is asking for joint custody with a parenting arrangement that fits both parties’ schedules, child support (based on their state’s statutory guidelines) and a split of the proceeds of the marital home. Although this may seem impossible to many, this scenario has the potential to be resolved amicably amongst the parties.  

 

The Possible Consequences

No matter how well prepared you are, how skilled you are at presenting your case or how knowledgeable you are with the laws, there’s a very good chance that your case will lead to nefarious consequences. Why? Simply because you are not an attorney. 

Pro se litigants generally turn the courts off because they have low and negative expectations of pro se litigants. As a result, courts often just put up mental and emotional barriers at the very mention of “pro se litigant”. Right, wrong or indifferent, this is the reality. What happens though is that they focus more on the “wrongs” so much that they overlook the merits of the case.

Not to mention, if your court renders an unfavorable decision or order on your case in your pro se action, you are stuck with if for the most part.  Your only recourse is an appeal, which is very expensive and time-consuming.

 

What are your options?

So with the explosion of legal resources on the internet everyone thinks they can handle any legal matter on their own. There might be some credence to this thinking but you must still choose wisely. There are great options available to help pro se litigants now. Some of these include divorce consultants-strategists (like myself); document preparers (we offer these as well), paralegal support services, etc. Even though these options are widely available now, you should still use discernment.  Other viable options are your state’s free resources, nonprofit organizations like Legal Aid and limited service attorneys to name a few.  Whatever option you decide on, it is crucial to understand exactly what you might be risking in the process. 

 

In summary

The bottom line is this, being pro se is not an automatic catastrophe, just don’t rush to decide. Do your research. Get consultations. Make a fully informed decision.

Sole Custody

 

Will the Court Award Sole Custody

In today’s world, there is a lot of confusion about the different forms of custody. We have all heard of the joint custody, some custody and full custody. However, what many are not aware of is that there are two major basis for any custody, that is physical and legal custody.  Physical custody refers to the residence of the child, while legal custody is the decision-making authority the parents have.  These can be either one or a combination of both of them.

 

Types of Custody

Joint custody shared or 50/50 are used interchangeably but differ in application. Joint custody can be granted with respect to physical and/or legal custody. Shared custody, on the other hand, usually only applies to physical custody where the parents split time equally. 50/50 custody, is not a legal concept but is used in place of joint or shared custody, especially where physical custody is split equally.

Full custody or sole custody are also often used interchangeably. The difference between these two being based more on the circumstances of the parties. Full custody is usually “presumed” in situations where custody has not been established by the courts.  This means that the parent that physically has the child has custody until the court decides otherwise. Sole custody, is a legal concept determined by the court. A parent who has sole custody has 100% decision-making authority and physical custody. The other parent typically has no contact or some visitation or parenting time with the child in some custody scenarios.


Change to Child Custody Arrangements during Covid 


The Courts’ Position on Sole Custody

Most states are moving toward a “presumption” of joint or shared custody, presuming that these arrangements are in the best interests of the child.

Judges are moving away from awarding sole custody to one parent even in cases where the “fitness” of the other parent is questionable. These days the court will only award sole custody when there is clear evidence of specific abuse, neglect or abandonment. The specific bases for ordering sole custody are in situations of abuse, neglect, abandonment, incarceration, mental illness, or relocation. If any of these are proven the judge presumes that the noncustodial parent is “unfit” or that the other parent is more “fit” to parent the child(ren). The courts will justify rulings that allows both parents to play an important role in their children’s lives as opposed to limiting involvement.

A parent can be awarded sole physical custody (which is the same as primary custody). If that is the case. the parties will often share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In these situations, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule.

Conversely, a parent whose awarded sole legal custody can still be directed to split physical custody with the other parent. The variation in these scenarios depends mainly on each state’s laws regarding custody.

 

Making a Case for Sole Custody

It’s one thing to allege the basis for sole custody, it’s entirely different to prove it.  Unless sole custody is agreed to by both parents, which is how sole custody is normally granted, proving it in court is no easy task. Of course, some grounds for sole custody are more obvious than others, a trial is still often necessary.  The extent to which the petitioner must provide proof or evidence of the grounds depends on other factors as well.  For instance, in a case of abandonment, which is defined differently in each state, mere absence from the child’s life may warrant further explanation as to why.

So, when making your case, it is prudent on the petitioner to understand the legal concepts and how they are proven in court.  Getting a handle on your state’s “tendency” to rule one way or the other requires diligence.  In fact, it is advisable to work with an experienced professional who can help you with the nuances of this area.   Additionally, custody trials can be awfully expensive, extremely time consuming and mentally & emotionally draining.

 

Alternatives to Sole Custody

A viable alternative to sole legal custody can be as simple as choosing specific language in the court order or agreement.  Including phrases such as “ X parent has final decision-making”;  “both parents are to decide on educational, medical and social issues jointly. In the event the parties are unable to agree, X parent has the final say”; “X parent has the authority to make decisions with respect to educational, medical and social issues when the child is in their home” and similar verbiage.  The beauty of negotiating with a mediator, amongst yourselves or with lawyers present is that almost any of these goes.  If the court is forced to decide, then the chances of bypassing sole custody this way is gone.

 

Conclusion

In sum, if you are determined to get sole custody then you need to start preparing for it way in advance.  The more you know, the more you prepare, the more help you get the more likely you are to succeed.

 

Written by Tracey Bee

Feel free to schedule a free 15-minute consultation to discuss your child custody case. 

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What is DiscoveryDiscovery in divorce and child custody in divorce and child custody?

Discovery in divorce and child custody matter is the legal process where pertinent information, relevant items and material facts are exchanged between opposing parties upon request.  Discovery is used in litigated cases of any type. It applies to civil, criminal and family law cases, just to name a few. However, the extent to which types of discovery is used may vary from case to case.

Discovery in divorce and child custody cases has a unique process and methods used depends on the issues. Whether the case is on the trial track, as opposed to settlement track, matters as well.  The more contentious the issues, the less likely the case will be prepped for settlement. This means the case will require more extensive discovery so that it is “trial ready”.  For example, in a divorce where the main issue is division of the marital home but there is a question of who paid the down-payment,  a Notice to Produce and/or Notice to Admit are appropriate.  However, it is different where one of the parties is alleging that the other party is hiding assets.  In those cases, a more extensive discovery process may be warranted like depositions.


Should You File First in your Custody or Divorce Matter?


Type of Discovery:

There are 5 major methods of discovery you and your lawyer can use in your divorce or child custody case.

Interrogatories:   these are written questions that each party request to be answered by the other.  The party must answer truthfully under the penalty of perjury. These answers can be used as evidence at trial.  They usually ask for things like, the identity of expert and lay witnesses, a brief summary of their intended testimony and the exhibits they will use. There is usually a 30-day time limit for the responses. Also, some states limit the number of questions that can be asked in interrogatories.   They can be pre-printed forms, generic, or can be tailored by asking specific questions relevant to your case.

Requests for Admissions:  this is a series of short sentences that the other party must respond to.  The other party must admit or deny facts or the authenticity of particular documents.  This method is often necessary before trial because it minimizes the need to call witnesses to authenticate evidence at trial.  This reduces the length of trial because it reduces the number of unresolved issues beforehand.  Requests for admissions works best when contested factual disputes do not involve subjective opinions.

The key is to frame questions in a way that narrows down the possibilities as much as possible.  The questions should leave no room for anything more than a “yes” or “no” response. For example, “Do you admit that you visited your parents home on July 1, 2010”?. As opposed to “Do you admit that when you to see your parents back in July 2010 that it was to get their help”?.  See the difference in the potential responses, the latter may need more of an explanation than a simple “yes” or “no”.

Requests for Production or Requests to Produce:  these allow a party to request the other party produce specific documents relevant to your divorce or custody case.  The request the production of items either in the other party’s  possession or that party has “custody or control” over.  They refer to any type of statements of any party; photos, videos, audios, etc.; financial documents; etc.  The party in possession can object to the request if they deem them to be overly broad or improper.  If there are no objections, the items must be produced for copying if the other party has them.  In situations where the party only has “custody or control”, then a signed release is produced.

Depositions:  this method gives the parties the opportunity to question any party or witness, in person and under oath. Their testimony can be used in court to either refresh the deposing witness’ memory or to impeach them.  They usually take place in an attorneys office, but can be conducted on any location agreed upon by all parties.  The deposing parties are sworn in and a court reporter is present to take notes.  This method is very expensive and can drag on the divorce or child custody longer. Nonetheless, it can be a necessary tool where there are several contested issues, like custody.

Subpoenas:  technically not considered discovery but they are another means to acquire information relevant to divorce or child custody matters.   This method is very simple and straightforward, thus often used as an alternative or follow up to other failed discovery attempts.  It is ordered by the court so failure to respond to subpoenas can result in a contempt charge by the court, which may mean civil fines and criminal charges.  Subpoenas can order you to show up to court, to produce documents or show up to court with documents.  Anybody who has information or items related to the case can be served with a subpoena.

How to use discovery in divorce or child custody?

Most people do not expect to spend tons of money or time in preparing their divorce or child custody case for trial.  No matter how contentious, it is not unreasonable to have limits with respect to your family law case.  You can expect your case be resolved without dragging it out using discovery methods.  However, when the issues are so complicated that there seems to be no end in sight utilizing all the discovery methods available is necessary.

Furthermore, the level of cooperation of both sides can delay/prolong the process.  The tedious process can be a tedious one for all parties, since gathering information can take time and effort.  In addition, the extent to which both sides respond truthfully, fully and timely can also determine how the discovery process is used.   Discovery is typically used to obtain bank documents, financial statements, tax records, real estate deeds, business records, medical/mental health records, etc. in divorce or child custody matters.

Scenarios for use of discovery

Divorce cases where the issue is merely a distribution of identifiable assets, discovery use may be limited to pre-printed forms that is part of the attorney’s customary practice in divorce.  In other words, the discovery process may be routine and limited to requests to produce.

In divorce actions where the issue is a division of assets that need identifying,  searched for and located, valuated, etc. then the discovery process would be much more extensive.   The use of requests to produce, interrogatories, subpoenas and even depositions may be inevitable.  These methods can be used together, or individually in instances where use of one method failed to produce desired results.  So for instance, a party may use requests to produce to get copies of bank statements of hidden assets.  If the other party denies any hidden assets in their responses then other methods should be used.  Denial or failure to answer justifies using depositions as an alternative.

In child custody cases, utilizing requests to produce and interrogatories may be the way to get evidence relevant to the case.  Specifically in cases where joint or sole custody is disputed, various methods of discovery may be best. Discovery would typically focus on proof of alcohol or drug abuse of either party, domestic violence or anything related to either party being “fit” or “unfit”.  And although the use of depositions is not typically used to prove “the best interests of the child”, it is a very helpful method to establish them.

Subpoenas can be used in any of these scenarios.  In fact, they probably should be used before resorting to more expensive methods like depositions.  Requests for admissions are most useful when the divorce or child custody case is most certain to go to trial.

It is important that you understand the different methods of discovery and ways to use them.  Although your attorney may opt to use a method, a combination of methods or none at all, it is important to have an idea of what is available and ways to implement them.

By Tracey Bee, The Divorce Solutionist

Preparing Your Case & Gathe Other Evidence

It helps to have an idea of what is important, what is admissible, what is legal with respect to preparing your case of divorce or child custody. Emails & text messages are usually full of pertinent information and should be high on the list. Although text messages should be formatted in a form that is easier to comprehend, some courts will allow them to be submitted in their original context. Correspondence from caretakers, therapists, etc. are also particularly important and given considerable weight when appearing before the court. Some third party correspondence is subject to hearsay rules however, and may be rejected on that basis. Reports from doctors and other related professionals are also considered “material” to issues surrounding custody or divorce.


Using Discovery in Divorce and Child Custody


 

Better to Overdo it than Not

Typically, the first appearance is for foundational purposes only. The court is going to spend time getting a clear understanding of the issues that are relevant to the case. It is best to bring all documents, texts, photos, etc. even though the chances of the court actually reviewing them are slim. These things are more appropriate for settlement conference, mediations or court hearing/trial but do serve a purpose at the initial appearance. Having all of these will help you to narrow down what is most relevant to the case from the court’s perspective, which in turn guides you through the overall process.

Prioritizing Your Evidence

Background information is not as important as you think. When preparing materials start with the decision you want the judge to make and provide only the information that will help the judge get to that decision.  You should have an idea of exactly what you want the judge to rule on, which should include an alternative or second choice.  You do not need to disclose these to the court or your adversary but have an idea of what the other favorable options look like.

In addition, include things that can dispute your adversary’s position. These documents, evidence, etc. should certainly be ranked according to how “strong” their evidence is but the important thing is to not overlook their importance.

To keep things simple and easy for your judge to read, your documentation should clearly answer three questions:

  • What’s the issue to be decided?
  • What’s the result you are looking for?
  • Why should you get it?

Some background is often needed, but too much of it clouds the most important & relevant questions. Sticking to the relevant facts that support your desired outcome tells the judge you are a focused & organized and that she/he should pay attention to you. The more time you spend on things unrelated to your end goal, the more it seems that you do not know exactly what you want or why you deserve it.

Keep your documents brief and to the point. Otherwise, it is like not knowing where you want to go. And in that case, you may end up somewhere else.


Most cases in court starts with the filing of a Petition or Complaint by the person who wishes to sue another. Child custody or divorce matter are no different, the initial document is the document that gets the case started. Either party, husband or wife, mother or father, can initiate the case based on their respective objectives.

The question often arises, “should I file first or should I wait until the other party is motivated to file?”  I wanted to address the pros and cons of proceeding either way, even though there is very little irreparable harm to the case if either option is exercised.


Contact The Divorce Coach for you Child Custody or Divorce Matters


Starting the case as the wife or mother in your case may be advantageous for several reasons. Let’s at it from a strategic perspective:  When you are the one filing for divorce you get to choose the legal grounds for the divorce. Depending on the state you are located in or the state you are filing in, choosing the grounds for your divorce may require “fault”. Although most states have some form of “no-fault” as legal grounds, some states’ variations of fault are not the easiest grounds to prove. For example, in Hawaii the parties are to remain separated for a period of at least 2 years to be able to choose “no fault” as their basis.  On the other hand, the petitioner can choose to forego “no fault” grounds based on the facts of their particular case.  Doing this can serve as a strategic tool when negotiation efforts get under way.  For instance, a wife may sue for divorce on the grounds of adultery, explicitly stating all the details of her spouse’s infidelity. The fact that his indiscretions are now open to public view & scrutiny may incentivize him to do whatever it takes to either have this changed to a different grounds or to have the case settled quickly to avoid public humiliation.

Next, the Petitioner gets to choose the jurisdiction to handle the divorce. In some instances, more than one state has the legal authority to “hear” the case based on the parties’ state of residence, the location of the commission of the acts that give rise to the case, or some other association the parties might have to the jurisdiction.

You can prepare more in advance since your ex or soon to be ex may be clueless of the impending filing & thus be unprepared for the case. If you are convinced that divorce is the route you want to take then you could and should start to gather relevant information, documents, etc.. In addition, you should start searching for family law attorneys who can represent you if the circumstances of your divorce or child custody case warrants it.  If you meet with the most reputable attorneys for consultations, be sure to keep track of who they are and advise them to do the same so that you limit their availability to your ex or soon to be ex for representation.

I understand that a lack of resources may leave the party with no choice, forcing them to be the Respondent in the case.  However, the answer to that problem may be a counterclaim or a motion to dismiss their petition.  Whether or not either action is warranted should be determined with the assistance of your family law attorney.