The Nuts and Bolts of Family Court

Published to: , , , , , ,

By on March 24, 2010 8:52 pm 2 Comments

Although I have several subjects in mind relative to my personal injury, trial, and mediation practice, I will today follow up on my Monday, March 22, 2010 post.

(Note: As I edit this on Feb. 9, 2012, I cannot figure out where all the lighlight red come from, or how to make it go away. The content remains usefull for anyone contemplating or being sued for divorce, in Wv. If you are in another state, be sure consult a lawyer in your state. J.B.H.)

This is not my effort to help you “do-it-yourself”. In my opinion, “do it yourself” simply cannot be done effectively regardless of your intelligence, because, with all due respect, you lack the experience base, and the knowledge of applicable law. Institutionally, the “powers that be” in West Virginia, the West Virginia supreme Court of Appeal, The West Virginia State Bar, and others, seem not to care that the Family Court Bar is dwindling, or may even desire to create a system where the parties are no longer represented by counsel.

Here are the basics:

1. Our civil justice system is an “adversary system”. Unfortunately, the assumption is that the interests of the participants are different and their most natural mode adversarial. Often this is true.

2. As a counter to this assumption, some good things have been done. The parents are required to take a “parenting class” which I will discuss below. Parties with children are required, and parties with other issues encouraged, to participate in family law mediation.

3. Most cases begin with a formal pleading document known as a “Petition”;

4. The person served with petition usually has 20 days to answer, so their responses called an “Answer”.

5. The person filing is the “Petitioner”; and the person answering is the “Respondent”.

6. The Respondent may file a counter-petition with the Answer.

 

7. The most common issues in a divorce are:
a. The grounds for divorce, whether fault or no fault-based;
b. Custody, now called residential care, of the children;
 c. Other parenting rights such as decision-making;
d.  Access to records;  
e. Child support;
f.  Spousal support (or alimony);
g. Equitable distribution of property and debts;
h.  Whether a restraining order should issue;
i.                  Attorneys fees; and,
j. Temporary issues such as possession of a car or house.

8. Persons seeking relief after the petition and answer have been filed, often file “Motions”.

9. Typical motions are “A Motion for Temporary Relief”,Expedited Motion for Temporary Relief”, “Motion for Rule to Show Cause (Contempt)”, and tactical trial motions.

10. The “financial affidavit” must be filed with the divorce Petition and Answer and accurately reflect the marital, and separate, debts and assets as of the date of separation.

11. The mandatory “Proposed Parenting Plan” can be filed jointly by agreement but more often is filed individually by each party stating her and his desires relative to custodial rights (residential care), time with the children (visitation), decision-making, access to school, medical and other records, and any limitations to be placed on the other parent because of a history of drug, alcohol, physical or sexual abuse, or anger management issues.

12. In West Virginia, most family courts require a “Caretaking Functions Worksheet“. Where both parents are fit, the court is bound to consider strongly the manner in which the parents shared “caretaking functions” prior to the separation.

At the temporary hearing, the court is supposed to look back one year, and at the final hearing the court is supposed to look back for two years. It is not unusual for each parent to parade 6 to 8 loyal friends and family members who swear under oath to careful observations of the parties and to their belief their friendrelative provided most of the care.

From my experience, barring serious addiction problems, mothers are more likely to provide the majority of hands-on care to younger children. Most family courts seem to believe this, and it is an “uphill fight” for the father and his lawyyer to prove otherwise. Objective evidence on this issue include canceled checks to local food store, credit card records, records of parent teachers conferences, record regarding which party brings the children to the doctor or the dentist, testimony of  of child care providers, etc.

13. The “parenting class” is not a “how-to” class. It is a class of “do’s and don’ts” for divorcing people. Many of these are listed in my recent blog post.

The arrogance of a parent who walks out of a marriage, into the arms of his lover, who then immediately exposes vulnerable children to this new person in his life, dumbfounds me every time it happens.

Even assuming the marriage was not a happy one, and that a rationalization can be made for the affair, there is no justification for confusing the children by exposing them ot a psuedo-parent figure so soon after the break up. Such behavior just enrages the other parent. If there is a hell, surely there is a special place for people like this.

14. “Self represented” or “pro se” parties follow a different track in divorce litigation. Their hearings tend to be shorter and the outcome more uniform, “one-size-fits-all”. Skilled attorneys can help distinguish their client’s case from the “run-of-the-mill”.

15. There usually has to be some type of preliminary or temporary hearing. The judge in our three county jurisdiction has his case manager to conduct telephone interviews called “case management conferences”, make sure the basic documents have been filed, and to generate a scheduling order that usually includes mediation.

16. “Temporary Hearings” have been taking 6 to 8 weeks in the jurisdictions where I practice. This is the time when temporary custody is determined, child-support calculated, temporary alimony determined, possession of the house and cars awarded, and perhaps a restraining order.

17. People have found another “portal” into family court. This is the filing of a domestic violence petition. Fortunately, the court can now separate a “domestic squabble” from “domestic abuse” and issue a “no unwanted contact order” without having to find abuse against either party. From my experience 20 to 30% of the cases involve serious abuse, and the balance involve various types of “dust-ups” where someone to decides they can gain an advantage in custody or other issues by filing such a motion. This used to bother me, but since courts have become more adept at telling one from the other, I routinely negotiate the less serious ones into “no unwanted contact” and other preliminary issues.

18. Mediation: The majority of cases here in central West Virginia are resolved through settlement negotiations, usually with the help of a mediator. Of course I’m talking about cases with lawyers involved, since I am one. I do not think I have encountered a self represented litigant who has read the Rules of Family Court Practice, let alone understood them. They always want to argue something the Court thinks is not important, and they often alienate the Court. Frequently, I represent former self represented litigants who are hoping I can reverse the misfortune they have already encountered. Sometimes I can, and sometimes I can’t.

19. At the end of the case there is the Final Order, the agreed “Permanent Parenting Plan”, attachments such as the “Child-Support Worksheet”, Motions for Reconsideration, and Petitions for Appeal. Such petitions are usually filed first with the Circuit Court, but failing to win there, litigants can go to the West Virginia Supreme Court of Appeals, which presently accepts only about 1 out of 10 petitions and grants even fewer.

Questions on these matters can be sent to me at hunterjb@hunterlawfirm.net or through our “Tell me about your case.” portal on our website, www.hunterlawfirm.net. The WV Supreme Court has its website, and “do it yourself” information. I caution you, represent yourself at your peril, and your children’s!

As they say on the motorcycle ads, “Don’t try this yourself. It requires a trained professional”!

This post was written by Burton Hunter

2 Comments

Leave a Reply

Your email address will not be published. Required fields are marked *