It is a known fact that self-represented, or pro se, litigants have the hardest time in court. Especially in Family Court, judges and lawyers tend to treat pro se litigants unnecessarily unfairly, in a lot of cases anyway. Well, I don’t know if it’s that they are treated unfairly on purpose, but I do know that they don’t get the extra level of respect they get when they have lawyer representation.
Regardless though, every single person who finds themselves in a court case has rights. Whether those rights are acknowledged or even considered, depends on so many things. Not that it’s right, but sometimes pro se litigants’ rights are often overlooked or trampled on, for various reasons. Before I get into those reasons, I wanted to take the time to list these rights.
Your Rights as You Represent Yourself
Here are some key rights and considerations for pro se litigants in family court:
- Right to Self-Representation: In most jurisdictions, you have the right to represent yourself in Family Court. Whether it’s referred to as pro se, pro per or something else the court is obligated to allow you to do this.
- Right to Access the Court: You have the right to access the court, regardless of status, ability, etc., and have your case heard by a judge (commissioner, ), just like any other litigant.
- Right to a Fair Hearing: You have the right to a fair and impartial hearing. This means that the court should not discriminate against you because you are representing yourself and should not treat the other party any differently because they are lawyer-represented.
- Right to Due Process: You are entitled to due process, due process refers to fair procedures. This includes the right to receive notice of hearings, the opportunity to present evidence, the right to cross-examine witnesses, and the right to make legal arguments in court.
- Right to Privacy: Your personal information and court records are generally protected by privacy laws. However, some information may be accessible to the opposing party or the public, depending on court rules and procedures.
- Right to Information including Laws and Court Procedures: While you cannot have an attorney represent you, you can seek assistance from court staff, self-help centers, or legal aid organizations that may provide guidance on court procedures and forms.
- Right to Object and Appeal: You have the right to object to evidence, procedures, or rulings that you believe are unfair or incorrect. If you disagree with the court’s decision, you may have the right to appeal the decision to a higher court.
- Right to Be Informed: You should familiarize yourself with the court’s rules and procedures, as well as the specific laws governing family court matters in your jurisdiction. Ignorance of the law is generally not an excuse nor does it serve your interests in any way.
- Right to Prepare and Present Evidence: You have the right to gather evidence (with the court’s help even), to subpoena witnesses (again the court can assist in this effort), and to present your case to the trier of fact. This includes the right to present witnesses, documents, photographs, and other relevant materials to help support your claim or defend against claims made against you.
- Right to Communication: You have the right to communicate with the court (to find out about court dates, judges assigned, etc.) and the opposing party (and their attorney) in accordance with court rules. But it is advisable to be respectful and professional in your communications.
The key thing to note though is that these rights do not extend to every single case or at every step along the way. In addition, these rights do not automatically render any specific result. If your right is outweighed by the court’s interest in safety or public interest then your rights might be trumped.
How these Rights are Ignored or Misapplied:
First off, just because you have these rights no one is obligated to exercise them for you but you. It is your responsibility to ensure that you are aware of your rights, that you bring them to the court’s attention, and that you seek to have them enforced. Even though judges and lawyers took oaths, which included acknowledging that litigants have rights, no one is going to be looking over their shoulders to ensure that they are in fact complying.
In addition, your rights are not self-sustaining once you do exercise them. In other words, stating your rights in one situation or scenario doesn’t extend to other situations. You should state your rights on every single occasion you feel necessary.
Exercising your rights doesn’t necessarily extend to any agents or fiduciaries of yours or the court. If you try to exercise your right to privacy, for example, to someone else in your family to safeguard your interests, it might not work.
The judges tend to do what benefits their own agendas, oftentimes at your expense. So that means, if they are more concerned with the court’s time they might tell you that your court appearance will not be recorded by a court reporter or recorder. This happens quite frequently actually. This is a trample on your rights though, no matter how they try to justify it.
What to Do When Your Rights are Violated
Ensuring that your rights are acknowledged can get really tricky when your major concern in Family Court is getting parenting time with your child(ren). The court typically throws things off course by acting in a way that disregards the rights you have. The thing is, raising your concerns about the infringements, can lead to disastrous consequences. If you file complaints and/or seek redress for rights violation grievances while your custody or divorce case is pending, speaking out against the court’s unjust treatments can delay or even deny you custody or visitation. The courts often take offense of any allegations of improprieties on their part.
Other more viable options, although few, are available. First, you can file motions that focus on the substantive aspects of your case. In other words, you can explore requests for relief that ask the court to re-examine its application of the law or procedure. Next, you can try to get a venue change if you can show that another court has jurisdiction. Or you can delay the case to coincide with the court cycle of judges. In other words, you can purposefully stall the case moving forward if you know how and when the sitting judge cycles out. Lastly, you can wait until your case is over and then appeal and/or file your grievances.
In Conclusion Family Court has the most discretion when it comes to how they operate. This includes how they implement measures to ensure fairness, just outcomes, and acting within the parameters of the Constitution (both federal and state). No matter which method you choose, seeking to enforce your rights should be done strategically. As with anything else, as a pro se litigant, you should take care to make your moves based on the outcome you have in sight.