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Recent Posts in Local Judges Category
| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
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Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired
Commissioner Michael McCoy in
Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so. (
Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job, as he always did, in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
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| June 02, 2011 |
| Pointers for Dealing With FAMILY COURT JUDGES (Difficult and Otherwise) - What Every Lawyer and PRO PER Should Know! |
| Posted By Thurman W. Arnold, CFLS |
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Working with Family Court Judges
I recently attended the AFCC (Association of Family and Conciliation Courts) Conference in Orlando. Two Canadian jurists put on a useful workshop entitled "Dealing With Difficult Judges" and kindly gave their permission to share their materials with you. Many thanks to the Honorable Carole Curtis and to the Honorable Roselyn Zisman - both family court judges within the Ontario Court of Justice system. I summarize their observations and suggestions here, and add a few of my own I. would be grateful, and it might be beneficial to many of us, if you would weigh in on this useful topic by submitting comments!
As these two bench officers freely admitted, judges like all people can be difficult and reactive at times, and it can be quite challenging for attorneys and pro se litigants to know how to prepare for, and best behave within, the often edgy atmosphere of family court. This tension, if not understood or managed correctly, can have negative consequences to the legal consumers for whom family courts exist to serve. My intention is not to criticize the judiciary, since being an effective judge requires vast reservoirs of equanimity and knowledge, but to have a frank discussion about how lawyers and self-represented parties might consider presenting their cases - or in working with cranky judges - in ways that are dignified and productive. My hope is to improve the civility and professionalism of the family court experience for all affected, and to help unrepresented parties to have a fairer access to justice.
Here are some pointers for how not to aggravate your family court judge or commissioner and a few thoughts about what to do if that happens, despite your best efforts. The opinions expressed herein are not one size fits all. I also want to start a dialogue about how to make the job of family law judges easier for them, or - to put it another way - to discuss a bit about how we might help them to help us.
Suggestions for Interacting With Family Court Judges
Judges have little patience with attorneys, and pro pro litigants, who aren't prepared when they enter the courtroom. Many litigants don't seem to know what they are asking the court to do, why they are asking for it, and what the best legal or factual grounds are for the orders requested. Courts everywhere, but particularly here in California with the passage of Family Code section 217 (which requires live testimony hearings upon request), are grossly overburdened. Judicial resources are not sufficient to meet demand in these budgetary times, and this places a pressure and premium on directness and efficiency. Economic limitations can also make judges a lot crankier than if they had reasonable and adequate time and resources to manage their caseload and calendars.
Depending on County size, wealth and population, California Family Law Judges typically have between 20 and 35 or more matters on their morning calendars. In the afternoons they are often holding evidentiary hearings for the more conflicted OSC/Law and Motion litigants, or have blocked off afternoons for trials. If they are to move through these calendars by the end of the morning, brevity and efficiency becomes exceedingly important. When do we expect that they will find the time to read what is contained in possibly more than 30 files before taking the bench to listen to oral presentations and cross-examination? For the more diligent judges the answer may be evenings and weekends. Which is often when hard working lawyers likewise find the extra time that they need to prepare for hearings and trial.
Therefore, one of the biggest mistakes that agitates judges is parties or lawyers who aren't prepared and can't present their cases with clarity. If, as a lawyer who is directly paid to identify and communicate the justness of your client's position, you don't appear to care overmuch about your client's case then why should our judges care? Lack of preparation, especially for lawyers, is a cardinal sin.
- Rule #2: Be Prepared For This Particular Judge
In jurisdictions with direct calendar assignments, where a judge is assigned to a case for all purposes or for all purposes possibly until the case is reassigned for trial, learn about the particular bench officer(s) who presides over your case. The more you know the better. Information allows you to make useful assumptions about a particular judge's attitudes and policies.
As Judges Curtis and Zisman note, the best judicial officers are predictable and consistent in their rulings. "A judge's value to the public as a judge is in direct proportion to the ability of the lawyers who frequent the court to predict how the judge will deal with a particular issue." I find this to be so true in my personal experience. Lawyers who know how judges tend to rule on a given issue can with confidence set their client's expectations realistically. Armed with such knowledge, both sides are in a better position to have productive settlement discussions that avoid a "crapshoot" and the associated risks and expense. Moreover, they don't waste time potentially infuriating bench officers with weak arguments that judges may made known that they rarely accept.
Lawyers who are active practitioners in any given court usually have good insights into local judge's attitudes. They may also be aware of information about a judge that is not generally available to the public, like their expertise, practice focus, and reputation before they took the bench. Knowing that while a lawyer your judge participated in a case that generated a published appellate decision on a move-away case, for instance, could provide you a wealth of ideas on how to tailor your presentation. Likewise, knowing whether a judge has been reversed is useful for making sensitive presentations.
Pro per litigants should consider observing a judge going through her calendar over the course of one or more days. You will learn tons about their judicial attitude from watching them in open court, and indeed you may witness other parties get scolded or reprimanded for missteps and so avoid the same mistakes. A simple but classic example is the family court litigant who brings a small retinue of family members who are there ostensibly to provide familial
- Rule #3: Notify the Court If the Case Will Be Continued the Day Before
Sometimes one or both attorneys or parties intend to seek a continuance of a hearing, possibly because they want to discuss settlement but often because one or both are not ready to proceed or has late papers to submit.
Different judges have very different attitudes towards continuances, particularly where they have already invested the time reading the materials and then are faced with a continuance request. Lawyers who know that a case will not proceed are well advised to contact the courtroom clerk at least a day in advance to give a head's up - otherwise, they may wind up with a judge who justifiably feels "put out" and therefore cranky. Some allow self-represented parties to give advance notice of agreed upon continuances, but the other side will need to confirm it. Often messages must be left on the clerk's answering machine, and you may not know in advance whether they were received or acted upon.
Where both sides have attorneys and a particular judge is known to permit it, counsel should always let the court know one or even two days in advance that the hearing is not expected to proceed that day.
- Rule #4: Look At the Local Court Rules, If Any, and the California Rules of Court
Some counties or individual courts have local rules; many do not. Most judges have their own rules and styles, often never to be found in written form. It never hurts to ask the Court clerk, when the judge is off the bench, whether that courtroom follows any specific preferences, customs, or rules of procedures.
The state-wide source for procedural rules impacting California Family Law (and Juvenile cases) are the California Rules of Court, beginning with Rule 5.100. Rule 5.118 is one of the immediately most important, since it deals with initiating common OSC and Motion requests for custody, support, etc. These rules apply to all family law matters in all California courtrooms.
The Riverside County Local Rules pertaining to Family Law cases can be found here. Start with Title 5. I discuss these in more detail below.
The Los Angeles Family Court Rules can be accessed here. Basically you ought to go to the County website where your case is filed and look for the local rules for that particular venue. If they exist you will be well served to review them for relevant tips and local policies.
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Rule #5: Talk to the Judge, Not the Other Party or Lawyer
The time to discuss your case or argue with the other side is before you enter the courtroom. It drives judges nuts when two lawyers, two pro se parties, or any combination of them begin to argue at counsel table as though the judge was not present. Keep your focus on the judge, and generally avoid looking at the other party except for emphasis. Never address them directly.
A very important related concept is that if you bring witnesses or support people in the courtroom, tell them in advance to keep control of themselves. This means no interruptions, no head shaking or head nodding, no gasps, and no agitated movements. It is natural that the people your bring to the hearing have a some degree of investment in the outcome. However, when these people act in an uncontrolled fashion, that may affect the court's evaluation of you. Thorough lawyers always remind clients and the support people who accompany them to maintain a even demeanor and not to speak unless spoken to.
- Rule #6: Never Assume the Court Has Read the File, and Never Ask
Judges can be easily overwhelmed at times for any number of practical or personal reasons. Never assume the Court has read your pleadings, but at the same time it is pointless to ask him if he has. Asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they've admitted on the record they've not read the file.
Instead, start your presentation as though the Judge has not read the materials. Most judges will interrupt you to advise you when they have read it. Be nimble. At the same time, understand that the court only has enough time to listen to summaries of information, not the entire case. You need to know in advance what your highlights are soundbites are, and they should be presented in as orderly a way as possible. Having outlined these in advance is very helpful in the heat of the moment, where you become distracted by some exchange you did not expect and must return your focus to your goals. Outline your highlights on a notepad in a way that a given sentence triggers your memory of the remaining points you wish to make.
- Rule #7: Make It Easy for the Judge
This is one of the greatest challenges, particularly for young lawyers and self-represented parties. How to know what matters and what does not? You want to help the judge to help you, and in doing this you need some ability to discern what is legally or factually important to them.
The first and best opportunity is to do this in the papers that are filed when your OSC or Motion is drafted, or when replying to the other side. Here it is extremely important to know the local court rules, if any, as they pertain to how paperwork is prepared plus - use common sense.
These papers give the court the first and sometimes defining impression of the case. They are probably your biggest opportunity for persuasion. Their purpose is to instruct the Court, and to explain the justness and reasonableness of your position. Backbiting and attacking the other side, or their attorney, and engaging in irrelevant and personal argument, is not going to be helpful. Like many of the suggestions I make in this Blog, this is often hard when locked in divorce trance, whether as a trained advocate or not. In declarations consider inserting spreadsheets, Excel boxes, and tables where a point can be made visually and simply.
Most judges are older people, and their eyes are not those of a 30-something adult. Double space your writings; use at least 12 point font; some judges insist that Courier or Times Roman be used; others insist that you use recyclable paper. Never handwrite your papers where you can avoid it, except possibly in cases involving domestic violence restraining orders requests (since the Judicial Council forms are handwriting friendly); nonetheless, typewritten language should always be preferred. Do number sequentially the paragraphs in your declarations. Organize your work for ease of access.
Avoid using CAPS or Bolding, except possibly for titles and organizing sections of your written submissions, since many of us today interpret that as shouting.
The likelihood that the court will fully read your pleadings increases proportionately with its brevity and readability. Most judges consider more than eight pages to be way too long. Reduce and edit your work, and then reduce an edit it some more. I am reminded of a literature class I took in college that studied the works of Ernest Hemingway. As I recall it, he would edit and review all his work to use active verbs and cut, cut, cut unnecessary verbiage. Similarly, when the other side submits a lengthy pleading resist to impulse to respond in kind. Be surgical. This can be a tall order in family law cases, since there is so much emotionality and reactivity in "he-said", "she-said" exchanges. But try. Respect how little time a court has to review one of twenty files set for any given calendar.
Do not include evidentiary submissions in pleadings, and consider tabbing or page numbering your exhibits and then referencing those page numbers or tabs in your declarations (by page, paragraph number, or line number). Remember, if the judge can't find what you are referencing, they will not like read it. This is a tough call in my experience, because it is good practice to provide evidentiary support for claims you make and positions you take. But too many attorneys and most all pro pers I've encountered submit way too much paperwork, and I confess I've done it too.
Some courts will allow counsel or the parties to contact the clerk in advance of hearings to warn that the issues are more complex than normal. This may be a wise step on your part.
- Rule #8: Avoid Head-Butting With the Judge (and the Other Side)
Whether or not a judge seems difficult or cranky, it does not help to get into a head-butting contest with him or her because you just can't win it. Head-butting may be a "kiss of death" for an advocate; the issues themselves have degenerated into an ego contest, and if you are in court to serve your ego you will likely have an unpleasant outcome. Remember, people are watching, including court staff. The Judge not only knows that she is the supreme power in the courtroom, she has her dignity to protect. Confrontations with judges suggests a battle between equals, and you are not equal.
It also implies a winner and a loser. If you head-butt with a Judge, you are asking them to prove to everyone present who is in control. That usually ensures that you will be shown to be the loser for the simple reason that finding in your favor may then imply that you are in control.
Head-butting might well begin with an attitude on the part of the judge. If this occurs, move into "damage control." Immediately lower your tone. Avoid flailing hands or arms. Speak evenly, slowly, and respectfully. This may defuse the situation before it becomes impossible to redeem. As Judges Curtis and Zisman put it "You must do whatever you can to end this contest. Consider a retreat, whatever that means in the circumstances. Move your reaction into this range...: be calm, be measured, be focused, and be polite (be unfailingly polite)." With a particularly difficult judge, the hotter it gets the calmer you must become.
A cautionary note here: Many judges I know respect an advocate or a person who will stand up to them, and not simply fold because there may be some debate. So much depends upon your tone and style even as you perhaps stubbornly, but calmly, present your arguments or evidence. Hence, do not take these suggestions as meaning that if the judge seems to disagree with you that you should become silent. It is how you convey your message that often matters most.
Be persistent, unless it becomes obvious that the Court has heard enough. Often judges will tell you this.This can become a real problem if you have not had the opportunity to make "a record" for purposes of a possible appeal (something you never want, but sometimes must consider).
If you are foreclosed from making a record, you should note that respectfully before quitting.
Similarly, it is usually pointless to argue with a judge once they have ruled on any given matter, but if you feel there is more to say and you are uncertain whether the judge has heard as much as she will, you might try "Your Honor, before the court moves on, might I add one more thing?"
- Rule #9: Never Lie to the Court
It is amazing to me how often attorneys will intentionally misstate facts to the court, or create inflammatory arguments that has little basis in fact. I am sad to tell you this happens a lot, and in fact this is one reason why divorce attorneys may be viewed as bottom feeders. Yet, this is only a small, if vocal, segment of the legal practitioner population. Similarly, parties in relationship disputes are highly motivated to misrepresent information for more directly obvious reasons.
As a advocate, one of the most important things that lawyers possess is their reputations. Judges who will talk about it will candidly admit that they are every bit a catty lot as the next person or profession. The talk in chambers, they talk in lunchrooms, they talk in restaurants, they talk in meetings amongst themselves. One of the common topics is about the lawyers who come into their courtrooms. Their views about particular attorneys' reputations can be infectious within the judicial community, which is not to suggest that they do not attempt to remain impartial on a case by case basis. It is true that sometimes it feels that attorneys who too freely spin the facts get away with it. This is one reason I am a proponent of monetary sanctions against attorneys directly, something I suggest in my Davenport Blog. One consequence of unaccountability is that opposing sides, and unrepresented parties, take their cues from the lawyers they come into contact with and mimic bad behavior of those they observe. The behavior of legal professionals matters. terrible message to send. There are so many reasons why it is imperative that lawyers not be deceitful.
Never lie to the Court, whether you are a lawyer or a party. Once a judge gets fixed on the idea that your information is untrustworthy it will pervade his view of you within your case, and is likely to haunt you. There are subtle and not so subtle ways of punishing litigants by imposing outcomes that can be catastrophic for your life, from fixing alimony or support orders above your level to pay to depriving you of time with your children. And, be advised, lawyers love it when the other party lies. This is exactly what can be seized upon to win their client's case, sometimes far more dramatically than when people just admit the weaknesses in their positions and move on.
It does happen that lawyers and parties may find that the Court has prejudged the case before any oral presentation; an example being the circumstances identified above where the lawyer or litigant has lost all credibility. But at other times it can be very difficult to understand why a bench officer may seem to have already decided your case before you open your mouth.
This is a tough one there may not be much that you can do about it. The advice of judges Curtis and Zisman is to stay calm and focused, and just keep going. Don't respond with something like well, "I can see your honor has already made up your mind," and don't otherwise communicate this with your body language, glares, or tone. This too can be a tall order. But on balance neither the client nor their case can be served in this fashion. For lawyers, my experience is that clients better appreciate the fact that you remained professional rather than snotty with the judge, because they will watch in real panic as their spokesperson begins to lose his or her poise. Similarly, they will know you did everything you could where you don't pour accelerant on the fire.
Judges Curtis and Zisman suggest that lawyers and parties need to know, under such circumstances, when to fold. They also need to know how to protect the record - that is what is said on the record that is recorded by the court reporter. As with the rude and abrasive judge discussed below, a good record for an appeal may be your only hope especially in jurisdictions that video or audio record the hearing, since tones of voice and sarcasm are often lost in a written hearing transcript. And, beware, I once had this happen with an extremely difficult Juvenile Court Judge (retired some years now) and so made a request for the written transcript (which was all that was available), and when I received it I found that major portions had been edited out entirely. Obviously the judge had instructed the court reporter to falsify the transcript, but how was I to prove it? I did manage to get a Writ of Mandate on appeal that removed the judge from future hearings in the case, and then won it in front of a much better judge at trial. BTW, proof that a judge has doctored the hearing transcript would almost certainly result in judicial discipline if proved, but that is can of worms I do not recommend since if your attack on the court fails that judge might actually make it their mission to ruin an attorney or their case.
Unfortunately I witness this more than I care to admit as an observer at courthouses, although very rarely in my cases these days and one possible reason is that I usually know when to shut up. Judges Curtis and Zisman state "Some judges are rude, aggressive, even abusive, for no apparent reason, or at least none that justifies this behaviour. It is extremely important for the lawyer (or the party) to be calm, and to remain calm, polite, [and] focused." I quote them directly to reinforce that I am not one lawyer griping about judges; similarly, I have friends who are retired bench officers and they will admit that such conduct occurs, and even that at times they regrettably engaged in it.
The goal of lawyers in such situations is, above all, to defuse the situation. This may seem an impossible task, particularly when it is our job to protect our clients. If the behavior is really so over the top that our clients are being abused we must object to such behavior.
All I can recommend to nonlawyers is that they not get sucked into such exchanges with the court, but that at the same time they politely and firmly stand their ground.
California matrimonial law is immensely complicated. Many lawyers who regularly practice in family court really have little clue what they are doing, in part because the simpler contests arise over and over again and many lawyers learn enough to deal with these simple situations but would be highly stressed on more complicated situations. Likewise, many family court lawyers have very little actual trial or even deposition experience. They don't know how to cross-examine witnesses. They only have a glancing familiarity with rules of evidence. Some of these lawyers actually go on to become judges. Others may be quite skilled in the criminal arena, for instance, where they were once prosecutors or public defenders. These judges were once real trial lawyers, but that doesn't mean they understand family law. Others may have been quite senior civil litigators who nonetheless rarely if ever handled these types of cases.
Curtis and Zisman point out that this situation is actually more easily remedied than some of the others discussed here. They suggest that particularly when you know that a bench officer is not overly familiar with this area, that you adjust your presentation to ensure that you covering the basics. State what you are asking for, identify any statutory authority, and discuss the legal standards that apply. One of the reasons I blog so much is to popularize information to empower nonlawyers. Lawyers have lots of legal treatises to subscribe to and review (when they bother); the public generally does not have these so nearly accessible. I hope this website aids you. However, please remember, my blogs and articles are intended merely to be educational and it is impossible for me to guarantee their accuracy under any fact pattern. You have to do your own work and draw your own conclusions.
This is usually a function of judges who don't know family law although as you might suspect, a jurist who hates family law is likely not going to bother to learn it. The best way to overcome this problem is to be polite, be brief, and educate the court about what you want and why you are entitled to it. If you have no idea as to either, the judge who hates family law may become an abusive judge as well. Politely and firmly resist being rushed. But get your points in clearly.
If you are identifying statutes or law that you believe impacts how the judge should rule on your case, try to identify recent materials and consider having a copy of them with you. For instance, I often Blog appellate decisions that may only have been published for the first time a few days before. These cases haven't hit the law books yet. The judge may likely know nothing about them. Be sure to bring copies of the case to the courtroom to give the bailiff to hand the judge, and be sure to provide one to the other side (hopefully before the hearing begins).
Because family law changes so rapidly, some judges only want recent authorities.
As to statutes, most that have been amended in any given year change effective on January 1 of the following year. If you are at the cusp of year's end, consider double-checking relevant statutes in advance of your hearing or when you prepare any written Points and Authorities. The Web is a great resource for these materials, as is my website, since I will attempt to give the public a heads up on important changes beginning November and December each year.
I often see pro pers bring in late declarations and try to file them just before a hearing, often refusing to first give them to their opponent or their lawyer. I can't recall how many times I have had a self-represented party tell me that they intend to submit something to the Court but they wont let me have a copy until the Judge says so.
Judges almost universally will not consider late papers, and I promise you that the first words out of my mouth in such situations to the court will be that Mr. So and So has some additional declarations to file, but refuses to let me see them. Even lawyers play this game. Don't do it. It is the kind of conduct that may bias the court against you, and the risk reward ratio doesn't merit such behavior. Why blow yourself up at the outset?
If this happens to you on the receiving end object politely, at once. Know the rules of court provisions I've given you and any others that may apply and point out that the time to file papers expired. If a judge indicates a willingness to consider these matters, ask for a continued hearing so that you may review and respond to them. If the hearing proceeds respectively ask the Court to strike any oral version of the materials that didn't get filed.
I cannot tell you how often court submittals are rejected by the clerks, or hearings don't go forward, because there has not been an adequate proof of service filed with the Court. Even when late papers are accepted by the clerk,, judges often refuse to read them. Late papers burden jurists, and they aren't proper. Procedural due process within the adversary legal system requires that both sides have full and fair notice of what relief is being sought, and what is being alleged. There are strict time limits for perfecting Proof of Service, which are complex enough to tangle lawyers up as well.
If you haven't perfected service, the best case for you is that you've wasted your day and your matter will be continued; the worse is that your materials will not be considered, or even that your matter will not be heard at all. A good idea is to consider asking the others side in advance for a continuance and get them the papers by fax or personal delivery at early on as you can, and tell the judge you did so when they insist on going forward and objecting to what you wanted to present.
This is common, particularly given that law and motion (and OSC) calendars are short cause hearing settings. This is something you definitely should ask the court clerk about in advance. However, it tends to be moving target depending upon a judge's frustration level on any particular day. Judges regularly will ask litigants, particularly pro pers, to look behind them at all the other people waiting to be heard "by me" today. You may be told that you be coming back after lunch if you cannot conclude your matter within a specific time frame.
Trials are a different matter. For non-trial order to show cause hearings assume that 10 minutes may be all you get.
As with all difficulties encountered with judges, try not to draw attention to the fact that the court is shutting you down or otherwise criticize the court, unless there is no option but to do so in order to protect the record. Which almost certainly means you've lost this round.
Unlike many other legal areas, courts have some independent duties to investigate the facts of a case beyond questions that lawyers or parties might think to ask or decide not to ask because they know they won't like the answer. An obvious example is the best interests test in child custody and visitation proceedings.
Those of you that remember Paul Newman in The Verdict may recall what this circumstance can look like. There is not much to be done, except not to go off and to remain calm.
This is a painful reality for both lawyers and pro per litigants. Sometimes retreat is the only option. It is a corollary of much of what has been discussed above. If you aren't getting anywhere, end the line of questioning or the argument. Young lawyers particularly don't know when to go silent. Pro pers seem to have a better sense of it, because they tend not to be as susceptible to ego battles with a judge as a lawyer filled with righteous indignation.
I find this one of the most important and effective of tools to obtain good and fair results in the courtroom, even when I can't achieve every single one of my client's goals. Reasonableness speaks to credibility. It also assumes that possibility of some win-win, and enables the Court to feel it has achieved substantial justice. Judges don't generally like giving one side everything they ask for, unless of course they are really pissed at the other side.
Clerks and deputies are watching everything that happens in and outside of the courtroom, and are part of the Judge's family. Treat them with respect and realize that they are sizing you up as well, and possibly even directly or indirectly reporting to the judge. Treat them gently and with respect. Don't think you can behave like a jerk in the hallways without it possibly being seen and reported.
A particular problem area can arise here in dealing with Court minutes, which are taken by the court clerk. It is not uncommon for these minutes, which absent a transcript being ordered become the only written record of what transpired, to be incomplete or even incorrect. This happens, unfortunately, often but is easily understood things often move rapidly and emotionally during hearings. If it does happen and a formal order is submitted it will usually be rejected as not conforming to the Court's minutes. Ideally recite the court's orders back to the court for the benefit of the court clerk, and do it slowly and even look at them gently when you do it.
... To Be Continued!
Thurman W. Arnold, III, C.F.L.S. |
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| March 22, 2011 |
| What to Do If My CASE Is Being TRANSFERRED BETWEEN COURTS in Riverside County? |
| Posted By Thurman Arnold |
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Q. My Wife's attorney filed a dissolution at the main Riverside County courthouse in Riverside, but we both live in the Coachella Valley. They should have filed it in Indio. It is a long drive for me to downtown Riverside from my home and I don't want the case there. But I need immediate help with spousal support and attorney fees and we filed a motion for these orders that had to be set in Riverside. Now the other side agrees they filed in the wrong court and my attorney is concerned about when my motion will finally get heard if the case gets transferred to Indio. Is there anything I should do or know?
David
David:
This can be a real problem in terms of timing and delay. Because of the Elkin's onslaught many judges are feeling cranky and overburdened by the significant increase in demands upon their time (having to hold evidentiary hearings whenever a party requests them). Your wife and her attorney may well be intentionally stalling your access to justice. It is highly likely that when you arrive in Court for the hearing on your motion, the judge is going to refuse to go forward insisting that "we already have enough business here." He may order that the case be transferred to Indio, and not issue any orders at all pending that transfer.
It typically takes a month or more to accomplish a transfer between courts, even those within the same county. In the meantime, you fall off the map. The inefficiency is really quite extraordinary, and flies in the face of the reasons for the Elkin's changes (premised on better access to justice and ensuring due process in family court cases). Elkins is creating a lot of problems for underfunded court administrators, and appears likely to have the reverse impact than was intended.
Moreover, you may find that the motion for support that never gets heard in Riverside effectively goes off calender, meaning you may have to refile or submit ex parte paperwork to the Indio judges to have it reset for hearing. In the meantime you could lose possibly two to four months of time. There may be an issue whether the orders, when you finally obtain them, are retroactive to the date your first filed for them.
In order to avoid this, do not assume that the Riverside judge or the clerks will properly manage your case, or that a hearing will get re-set by them in the interim while the transfer is occurring - without more. Have your attorney insist at the hearing in Riverside that before you leave that day a new hearing date for your motion has been set in Indio and if the Riverside judge refuses to listen, make sure that your objections are placed on the record. That is the best you can do.
T.W. Arnold, CFLS
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| March 14, 2011 |
| FAMILY LAW SANCTIONS and DUE PROCESS: Santa Barbara Trial Court Reversed in IRMO DURIS |
| Posted By Thurman Arnold, CFLS |
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Visitors to my websites know that I am biased in favor of mediation, believing that parties to litigation involving their family should opt to resolve their disputes themselves rather than undertake the perils of having a judge, or anyone else, decide their matters for them. This includes mediators (whose role is not to decide your issues for you but to facilitate you finding solutions). However, I admit that sometimes this doesn't seem possible. Too often one or both parties are reacting so deeply to their hurt or resentment and spinning with angry, busy minds that they perceive family court as the killing field for their unresolved conflict - a public forum for the spectacle of flogging the other side.
A recent reported decision illustrates the financial waste that occurs in high conflict family court battles, where there are no winners and only losers. My remarks are not intended to convince you to hire me, or to impugn judges whom I contend are struggling valiantly to protect children and mete out justice as best they can within a system that is not equipped to cope with the multi-dimensional challenges of emotional divorce and its aftermath: The trial judges are not broken, but the framework for government sponsored attempts to regulate the processes of divorce and domestic partnership dissolution is. Nor should it be read as an indictment of divorce lawyers or any particular barrister. An adversary model for resolving family disputes guarantees that the experience of everyone connected with these cases will be ... adversarial. Surprise!
In the meantime appellate justices are stepping forth to triage for the litigants, their attorneys, and the lower courts. But is it realistic to expect lawyers (in that small relative percentage of domestic cases where people can afford them) or judges to not be swept into the reactive thinking that the parties' disputes are personifying? I say "no". Our brains are hard-wired to respond to conflict in predictable ways. While we all ought to conduct our affairs in increasingly enlightened and ethical ways, and lawyers and judges surely benefit by incorporating the wisdom of the mental health sciences, a legal and cultural framework grounded in adversarial processes can never escape them. How could it be otherwise?
Marriage of Duris & Urbany
On March 14, 2011, the Second Appellate District (Division Six) reversed Santa Barbara trial judge Colleen K. Sterne's decision to discipline a self-represented litigant (an unemployed attorney) for, among other things, her earlier attorney's tactics in filing a motion to compel document production evidently without first attempting to resolve the disagreement informally. Discovery motions generate large fees and consume valuable judicial resources.
At the end of the hearing on Wife's original requests (the custody and support modification request she'd filed eight months earlier), the trial court imposed $10,000 in attorney fee sanctions against the Wife. Husband's attorney had evidently suggested that the Court do this somewhere in his Reply paperwork, and reiterated the request in his closing argument. The trial court took the bait. Its ruling was found to be an abuse of discretion.
According to the Husband, by the time of the hearing on original OSC to modify custody and support he had spent $25,000 for fees. Wife probably spent a similar but slightly lesser amount since she was in pro per for many months. Their fees and costs for the appeal probably were $20,000 more apiece (but Mr. Urbany handled his own appeal). Husband will get none of his money back, and Wife will recover only a portion of hers. Neither will achieve an emotionally satisfying resolution and their matter likely obsessed their lives over the year and a half. This case is "a pox on both your houses."
Wife's former attorney, Jacqueline Misho, was hired some six months into the proceedings, initiated when the Wife filed a motion for "100% physical and legal custody" of the parties' two children, plus more child support. Attorney Misho took an aggressive stance in advancing her client's claims and filed a discovery motion to compel production of documents. This was unsuccessful. The attorney was then let go. A week later the Wife's custody motion was heard. Although sanctions against her had not been requested by way of a noticed motion (possibly because there was little time in which to file one), Husband urged that she should pay his attorney fees. At hearing end when Judge Sterne announced her intent to hit Wife with $10,000 in sanctions as a share of the Husband's costs in part based upon the prior discovery motion filed by Misho, Wife complained "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." In my experience, "the best there [is]" often means the meanest and toughest. Many family law attorneys advertise themselves in such a fashion.
I have no personal knowledge about either party's attorney beyond what Google searches of their names retrieve and what a review of the California State Bar website discloses. Both are reputed to be tenacious divorce litigators. The problem with vociferous advocacy, irrespective whether it occurred in this case or not, is that it tends to generate a story of its own and so to increase the conflict noise volume - I confess I know this from my own past personal experiences. It can infect the process - there is something of a reciprocal feedback loop that occurs between high conflict litigants and their attorneys that is difficult to resist. Sometimes it seems to be the only choice, but usually that justification is borne of the tensions within the conflict itself and is not necessarily true.
Family law litigation becomes particularly nasty when attorneys for each side compete to inflame the trial judge with sound bite characterizations about the other. Some clients demand this from their counsel or become quite perturbed if their advocate doesn't respond in kind to these sorts of attacks. Lawyers who are being paid large sums are pressured to speak their client's minds (read: resentments) or risk a loss of confidence by their client. Of greater concern to the integrity of the legal professional generally, there are many family law attorneys whose entire strategy is geared around slandering the other litigant (or their attorney), often by exaggerating or misrepresenting the facts or history of the case solely as a means of confusing the judge or just plain pissing the court off in the hope of creating a favorable bias. Tit for tat then threatens to overwhelm the process. This sort of behavior can include ignoring the procedural rules for raising the issues to be decided, which is a form of ambush that can be effective exactly because the answering party is unable respond to an oncoming train if there is no forewarning.
I am not saying that this was either attorney's conduct in Duris as I lack sufficient details to make a full assessment; instead I am pointing out that adversary litigation programs lawyers and unrepresented parties to use whatever tactics that might work, and sometimes to try them all. This seems to be viewed as not only within the standard of care for zealous advocacy but to be required by that standard. I can comment that one irony of this case is that while the Wife's attorney allegedly failed to act in a cooperative manner in choosing to file a motion to compel without first attempting to solve the argument informally, Husband's attorney seized upon that misstep to buttress a request for sanctions that was never properly placed before the court. Sometimes these sound bites do stick; they did here, at least with Judge Sterne. Unfortunately, under these rules of engagement lawyers are thus encouraged to act as badly as the talking heads we see arguing on many 'news' programs, something that the American public views as a form of 'entertainment.'
This is one of the many dangers of adversarial litigation. Both sides feel righteously indignant, and attorneys tend to internalize their client's upset so that the boundaries between the client's experience and the attorney's own blurs. It is a recipe for disaster, but understandable given that emotional and angry ex-spouse pressure-cookers are letting out steam on both sides of the table all at once.
The appellate court's decision doesn't give us sufficient facts to discern whether the mother's initial application was well-merited, but Judge Sterne's decision suggests she did not view mom's motives (or her attorney's decision-making) to be in good faith. Wife's request for 100% custody looks to be retaliatory and frankly when this is true - and too often it is, even if not here (Judge Sterne referred to Wife's prior discovery motion as a "fee sink") - trial courts need to discourage such conduct in strong ways, especially when it generates unnecessary fees for the other party or damages children. Some people only respond to monetary slaps. I can merely speculate about these proceedings without reviewing the trial briefs and reporter's transcripts, and emphasize that reading 'between the lines' cannot give the whole picture.
Still this is a published decision of the 2nd Appellate District. Following on the heals of Marriage of Fong released for publication on March 3, 2011, these decisions, along with
Marriage of Tharp, should be read together to glean the larger message. Reviewing courts are holding everyone accountable - litigants, attorneys, and bench officers. Due process and fundamental fairness require every side to cross their own t's and dot their own i's. This is welcome instruction to the entire spectrum of family court members and participants.
Be Careful What You Ask For,
and Consider Asking for Something Different
However inappropriate Ms. Duris' conduct may have been (if at all), the appellate justices ruled that due process required that she be informed in advance that the court was considering sanctions in order to have an opportunity to muster and present evidence in opposition. Husband's request for relief should have been properly placed before the Court and not have been based upon offhand arguments buried somewhere in his reply pleadings or first presented in closing argument. This is a good thing. Last year's Elkins legislation spotlights the public policy goal of ensuring transparency for self-represented and represented family law contestants alike.
Now, eighteen months later the odyssey is not yet ended - the Sterne decision is sent back to the trial court (not likely to be Judge Sterne, who can be disqualified as the judge on the next go-round) "with instructions to conduct a new hearing with proper notice." In other words, to relitigate whether sanctions should be assessed against the Wife.
In the meantime, she is awarded her costs on appeal. No appellate case costs only $10,000, the amount in controversy that led to this appeal. Hence, Husband - who won a short-lived victory at the trial court level - will now likely end up footing not only the bill for his trial attorney, but the Wife's attorney fees on appeal as well (be careful what your attorney asks for!) The saga can be now rebooted. Might it end differently this go-around? I'd wager (and I hope) the parties have had enough and that will agree that Wife will forego her appellate costs while Husband will waive a second sanction's motion. But divorce trance is stubborn stuff.
There are only losers in Marriage of Duris. The children of these two warring parents seem utterly forgotten. The take away is that using California court judges to beat up the person you now find despicable (who then smacks back) may blow up in the face of each contestant; given that people often view justice from the lens of their own desires it is a small wonder that government regulated divorce hasn't found a way to respond to such expectations, and possibly never will until the entire system is jettisoned and recreated.
In the meantime try a different tact, if you wish it and if you can. Work together to resolve your disputes collaboratively or through mediation. Even if the other side seems incorrigible, you determine how you respond. Remember, litigation induces trance - seek equanimity and send your kids to college instead!
Here is a link to Marriage of Duris & Urbany.
Thurman W. Arnold, III, CFLS
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| March 07, 2011 |
| Making DIVORCE JUDGES ACCOUNTABLE - What Is A STATEMENT OF DECISION? |
| Posted By Thurman Arnold, CFLS |
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Given the 2011 changes to the California Family Code brought about by the recommendations of the Elkins Task Force, you need to know about something called a "statement of decision". This is because many family law cases involving temporary or interim orders now require an evidentiary hearing - or a trial or 'mini-trial' - on matters that used to be decided as motions based only upon declarations and argument of the parties or counsel. California Code of Civil Procedure §632 governs this device, and it is not available in straight law and motion proceedings. It is available only on matters where there has been a trial of factual issues.
Newly enacted Family Code §217 directs family court judges and commissioners to hold hearings with live testimony unless the parties stipulate otherwise, or unless the trial court finds good cause to dispense with such hearings. I've written about the Elkins changes extensively elsewhere on this Blog, so please try the search engine at the top of each page for more information about them.
A statement of decision requires the family law trial court to state, on the record, or in a subsequent written opinion, why it ruled the way it did on any questioned fact. It is essentially the same thing as a statement of the court's findings and its conclusions on any controverted issue. Judge's don't necessarily appreciate such requests, however, because they force the bench officer to expend additional time to explain at least some of the aspects of their reasoning, and some feel that it is provocative to ask them to explain their reasoning; the conventional wisdom for lawyers therefore is "don't ask unless you fear you are going to lose."
Statements of decision in family law cases, as with hearings on OSC requests and certainly bifurcated or full on trials, are most important as a tool for a potential appeal. Without them the record on appeal may be quite unclear since the appellate court will have a difficult time determining the fact basis for the trial court's reasoning. Effectively, absent a SOD, this means that the appellate court will only reverse the trial court ruling for errors at law - the reviewing court will presume that the trial court made every factual finding necessary to support its decision. This is one of the problems of asking for them - you are saying to the judge "I think you may rule against me and so I am doing this to protect the record on appeal."
There are important rules about when to request a statement of decision. Where a trial is completed in one calendar day or less (or less than eight total hours over several days), a request for a statement of decision must be made before the court issues its ruling (i.e., before the matter is submitted for decision). This means, before you hear the judge's ruling, not after! There are technical rules about how to add up these hours. This will be the typical family law OSC or Notice of Motion situation where testimony may last from 30 minutes to several hours under FC section 217. Until January 1, 2011, these situations typically included only domestic violence hearings since evidentiary hearings were already required in those cases.
The procedures for statements of decision are to be contrasted with certain statutory requirements that courts make and express their findings on the record in certain statutorily enumerated situations, whether or not these are specifically requested. I will identify those sections in the future.
Check back for further Blogs and pointers on these subjects. If you have a contested hearing with testimony, and you get the sense the judge views things differently then you do, ask for a statement of decision before you hear the decision!
Thurman W. Arnold, III
Certified Family Law Specialist
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| March 06, 2011 |
| How Do I DISQUALIFY The JUDGE Assigned to My Case? |
| Posted By Thurman Arnold |
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Q. My husband has filed for divorce and set a hearing for custody of our children. I was just served with the papers. My girlfriends tell me that the judge assigned to my case may be prejudiced against women. I don't feel safe using this judge. What can I do?
A. While most judges are inherently fair, I believe it is critical to your experience with the Family Court system that you trust that your judicial officer is unbiased. Information from friends about their experience or observations may indeed be useful, but you will never really know why their outcome was what it was and it likely has nothing to do with any kind of prejudice.
One reason why I promote mediation so vigorously it is scary to trust that any given judicial officer, or any person for that matter, to decide life-changing matters for you and your family rather than you and the other party/parent. Litigation should always be the option of last resort, to be used only when you and/or your spouse or domestic partner are so conflicted that you cannot work together. With mediation, no one but the parties decides the outcomes. How could that not always be the best solution?
California allows each party in all civil proceedings, including divorce and dissolution of domestic partnerships, to disqualify one judge within a limited time after the case is filed without any proof of actual prejudice or bias. This is called a "peremptory disqualification" and it is governed by California Code of Civil Procedure section 170.6. It requires you file an 'affidavit of prejudice' in a timely manner. The statute tells you what you need to say. Read it if you are going to use this remedy!
Procedures vary in different counties on exactly when you need to file this document with the court clerk and the timing depends on whether your county uses "all purpose assignments" when the case is first filed, or instead directs hearings to a master assignment department which then assigns the file to particular courtrooms depending upon daily availability. It also may depend on how many judges there are at your courthouse. Please check your local rules and read the section. Eastern Riverside County in Indio uses the direct assignment approach, meaning that when a case is first filed it belongs to one of our two local family law judges. This assignment is determined by the last odd/even numeral of the case and is a matter of the luck of the draw.
Failing to file the document in a proper manner will usually result in your motion being denied, and so you can become stuck with the very judge or commissioner whom you sought to get rid of - giving you a concern that he or she won't like you now for sure (probably not so, but again perceptions of fairness are critical to the orderly administration of justice).
In all purpose assignment jurisdictions you must file your peremptory disqualification no more than least 15 days after you are served with the pleadings (assuming they contain notice of the assignment), or if you've not yet appeared in the proceedings then within 15 days of notice of the assignment.
There is a different set of rules for attempting to disqualify a judge for cause, something that you can try at any time, but this is an uphill battle and judges have an interest in resisting these motions since a finding of actual prejudice does not reflect well upon them. C.C.P. section 170.3 governs those requests. Most jurisdictions have county counsel review and oppose them and it is the judge himself or herself who decides whether to recuse or disqualify themselves - we naturally all think we are fair and how many people can admit prejudice?
Good luck!
Thurman W. Arnold, III, CFLS
www.PeacemakingDivorce.com
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| December 26, 2010 |
| MEDIATION Is a BETTER ALTERNATIVE To FAMILY COURT For Some |
| Posted By Thurman Arnold, CFLS |
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California Family Courts render unique and invaluable services to people locked in end of relationship struggles. Family law Judges and Commissioners are extremely dedicated and highly trained professionals who make great personal sacrifices when they agree to take the bench. It is hard to imagine more challenging work. For significant portions of the population, the only place where people can go to achieve physical and emotional safety or win some economic equality is the local courthouse. Children in particular benefit hugely from the protections that the system aspires to provide. Besides judges, our county courts offer child custody recommending counselors, family law facilitators, probation officers and many others including courtroom staff, often at little or no direct cost to the parties beyond filing fees (which are ever-increasing). The commitment and availability of these workers is an example of how local governments can successfully improve the quality of our private lives.
But the family court legal system has significant organic, practical and fiscal limitations. Many people don't recognize, or forget, that it is the remedy of last resort - if it is considered to be the point of beginning, vast opportunities are lost. It can take on a life of its own and so be self-perpetuating.
First and foremost it is predicated upon an adversary model for answering disputes. The parties express and argue opposing views or stories about themselves and the other within the framework of complex rules of procedure and evidence that are designed in theory to encourage respect, truth-finding, fairness and uniformity within the process. Most judges do an outstanding job in maintaining civility and dignity during the proceedings. Substantive laws according to statutes and appellate decisions then determine who gets what. But whatever the outcome, it is imposed upon the parties from outside the family itself, and it will not have taken into consideration much beyond legalistic interpretations. It is susceptible of being swayed by inflammatory sound-bytes. The outcome is likely to be disappointing and what people say and do within the adversarial process may gouge new wounds or keep the old ones from healing.
Second, because a judicial officer sits as the "trier of fact" he or she is always the most important person in the room (and sometimes a ghost in the parties' homes). A judge's job includes making decisions in favor of the party who has met their burden of proof - that is, who has established to the court's satisfaction that one position is more likely to be the truer one (by one percent or more). Judges do the best they can to render unbiased and carefully thought out judgments, but they have conscious and unconscious biases like everyone else and the lack of available time and resources, not to mention the often difficult behavior of the parties (yes, and sometimes we attorneys) constrict the luxury of reflection.
Several important consequences flow from these practical realities. The judge's involvement implicitly presumes that peacemaking alternatives to adversary litigation have first been tried and have failed. Sometimes that is true, but more often all that has really happened is that Party One has said "I want it my way" and Party Two has said "No, I want it my way." These two people alone could not save the marriage or domestic partnership, and it is equally unlikely that they can now agree on how to manage the delicate financial and parenting issues affected by their breakup without outside assistance. The fact is that when people are ready to seek outside intervention, the first place they look to is adversarial lawyers or the family court, not noticing they've short-circuited alternative dispute resolution options. One or both hires a divorce attorney (few lawyers describe mediation or collaborative options before undertaking cases, although they are ethically required to do so) or files a proceeding on their own; three weeks later the family's lives are dropped like a ball of snakes into a judge's lap for untangling. Unfortunately this is not the court's role. While all judges promote settlement and joint decision-making if it is safe for the litigants and for their children, a judge's practical function is entirely different. While judges receive varying forms of mediation training at judicial college, they are not hired on and paid to be mediators.
Third, there are policy and fiscal limitations to what county governments, and hence judges, can do. In terms of policy restrictions, few local county courts have developed or make available any kind of mediation programs beyond custody related matters. Custody mediations generally do not allow for at most more than an hour of a custody counselor's time to read the file, assess the parties, and then report to the court. Possibly they have had 30 minutes to interact with the parties to learn the competing and complicated concerns. No matter how dedicated, smart, and professional they are this is challenging task within the allotted timeframe.
Settlement and mediation programs are non-existent in some middle sized and most smaller counties. The Indio Branch of the Riverside County Superior Court has no non-custody family law mediation program in place. This is odd since Riverside is now possibly the largest county in California. Because of budgetary restrictions, throughout southern California when mediation programs exist they often rely entirely upon the generosity of retired bench officers or volunteer attorneys. One resulting irony is that the family court dockets become overcrowded with many cases that are otherwise amenable to settlement, and this further taxes the system and makes less money available for mediation or other needs. Similarly, there is no option for high-conflict families other than to force them to litigate at great cost to all, especially since they tend to re-litigate endlessly, taking up a disproportionate share of court resources and pressuring the time available for other families.
The failure of cooperation between the judiciary and non-public lawyers has several causes that are each difficult to overcome. First, court administrative decision-makers seem distrustful of sharing these tasks outside the system. Second, when it is solicited lawyers are not reimbursed for their contributions of time. Their involvement is an unappreciated public service without economic benefit to them, and indeed such service takes time away from their existing caseloads (read: anxious paying litigation clients). Third, while we sincerely proclaim that settlement is in every way preferable, and acknowledge that it decongests clogged courtrooms and frees up public resources, some governmental officials still seem to consider it as if it were a luxury item. This tracks the views of larger society, which hasn't recognized that mediation is a core asset rather than a stop gap, and this is true of both public and private mediation. Consequently, private mediators are not asked to mediate for the public and receive no systemic support. Lacking support or encouragement many potential mediators don't take developing mediation skills seriously, especially if they cannot also develop a private mediation practice that justifies the investment of time and money that accumulating mediation skills quite assuredly requires.
Despite all the obvious benefits to individuals, families, fiscal conservatives and society in general when mediation works (written about extensively in this site but also at Desert Family Mediation Services), judicial officers and court administrators continue to resist it. This is understandable given that mediation is a latecomer to the litigation party, but otherwise makes no sense. The fact is that there are many reasons why mediation in any form is usually a superior alternative to government sponsored outcomes.
Today it is only the sophisticated legal consumers that recognize its potential value for themselves, largely because they are dissatisfied with their earlier litigation experiences or hope to avoid the experiences of others that they've observed. Some of the very ones who have the money to fund battles between lawyers, in and out of court, see that mediation is a much cheaper alternative or at least come to the recognition after some great expense. This is a secret that most litigating family lawyers know well - once the adversarial experience grinds people down sufficiently, they are ready to begin to think about settlement. That is a good time to bring in the mediators.
By the way, one of the powers of the Internet includes making limited demographic information accessible to web owners regarding their visitors. While I cannot discern who visits my Blogs (and we don't use cookies or any individual tracking techniques), Google provides metrics that do tell me what word combinations people are 'googling' and something about their gender, age, if they have children and their years of education. People seeking information about mediation are uniformly over 45, more than half are male, and most have attended graduate school.
I need to be clear that I am not blaming the courts or the lawyers as being in some form of conspiracy to increase the costs of divorce. Government always reflects the values of the constituency, sooner or later. Dissolution lawyers don't so much market a product as they provide a service to consumers who already have an expectation of what their needs are, even if it is skewed in the sense that it comes from a place of emotional reactivity and fear over losing money, property and kids. Until people who require the services of lawyers become aware of non-court alternatives, they will continue to expect the norm.
We seem to be stuck, but the good news is there is movement occurring. My fantasies include the one about how simply having this chat with you will help in a small way to shift our thinking. I hope to take mediation directly to those whose lives are the essence of what drives the family court system - to people such as yourself. My aim is to bypass outdated and bureaucratic thinking, and to popularize mediation as a preferred method of dispute resolution that potential litigants know to investigate at the outset to test whether it might be appropriate for their situation. One way to do this is to give you an experienced lawyer's inside view of the shortcomings of our legal system as it intersects with relationship transitions. Another is to remind lawyers that standards of practice and ethics require them to describe the possible benefits of mediation before they are retained, because some do not. And another is to encourage government decision-makers to increasingly embrace mediation within the court related processes.
These changes are coming anyway, and for very good reasons.
Drive Your Own Divorce!
Thurman W. Arnold III, CFLS
HAPPY NEW YEAR!
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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