Informal Custody Trials
North Idaho Attorney Kevin J. Waite, P.C. on Monday, September 25, 2017
Everyone who has watched television knows how trials are conducted, right? Suits, Law & Order, Boston Legal, L.A. Law, Matlock, and for those who remember black and white shows, Perry Mason have all taught us how it's done. Well, maybe not, but that's another topic. This one is on informal custody trials.
The best way to describe an informal custody trial is to contrast it with the traditional trial. In the old tried and true way, witnesses (sometimes many of them) testify in a question and answer format. The lawyer who represents that party or who has called that witness asks generally open-ended questions intended to draw out the story in the witness's own words. Then the witness is cross-examined, a real slash and burn segment when the TV script writers have done a good job. Then there may be re-direct questioning by the first lawyer and possibly re-cross examination. Along the way there are likely to be objections, which are argued and are ruled upon by the judge. If the objection is sustained, the question is not answered or the exhibit is not admitted. If the objection is overruled, the witness gets to answer the question or the exhibit is admitted into evidence. The process is repeated for each witness. It sometimes makes the process seem choppy and the story (read more)
After a Complaint or a Petition is filed, it must be served upon the opposing party (Respondent). The client is asked to provide the residential and workplace addresses and other personal information about the other side. One recent client described her ex as "fat, unemployed, always drunk and never out of bed before noon". The more information the better. It is also helpful for the process server if a photograph is provided.
Usually, a local process server retained by the attorney will serve the Respondent at either that party's residence or workplace. Service can also be performed by a friend or family member of the client. It cannot be done by the client. If served at the Respondent's residence it can be served upon anyone 18 years of age or older. At the workplace the papers must be served directly upon the opposing party.
If the opposing party is currently residing out of state, it is not an impossible situation as long as one knows where he or she is living. One then needs only to "Google" process servers in that geographical area. This usually yields a small group of possible servers to choose from based on availability and price. Through email and fax one can quickly send papers and after service is accomplished receive an affidavit of service.
In the worst of (read more)
Interrogatories are questions that are served by one party to the other to obtain information. Often they are highly personal and pry into the personal life of the other party. Nonetheless, they have to be answered. As one good turn begets another, your lawyer will send over a similar set to the other side.
Interrogatories have to be answered truthfully and to the best of one's ability and sworn to under oath (with a notarized signature). They are usually accompanied by Requests For Production Of Documents, which can be equally offensive and which also have to be answered.
These papers are frequently served shortly after the Respondent has responded. This process is an opportunity to obtain facts and documents to support one's case and to test the strength of the opponent's case. It is often a useful tool for both sides to have the answers before mediation, so that items such as bank accounts and debts are known in order to get to a fair resolution.
Discovery - another name for this process - is very broad. Information may not be relevant but is still discoverable on the theory that it may lead to relevant evidence. There are occasionally interrogatories and document requests to which an objection can be made (and sustained), but usually this occurs when the requested (read more)
What can you do when you a Default Judgment is obtained against you?
The quick answer is you file a motion to vacate the default. This of course requires analysis of what happened and why.
If you were properly served with a lawsuit, you had twenty days to file your response. If you did not respond, the Plaintiff can apply at any time for a default and thereby obtain the exact relief he/she requested. You can file your motion to set aside the default, but there are certain requirements that need attention when preparing your papers.
Occasionally, although a default is obtained the defendant was not actually served or was not properly served. This will call for a different analysis then does the more common situation in which the defendant has been served but has let the time go by.
Not all defaults are necessarily bad. In some divorces, the plaintiff attempts to come up with terms that the defendant will not oppose. In those situations, a default is simply the means of concluding a tacit agreement.
There are time limits to motions to set aside a default. After six months it may no longer be possible to set aside your default. It is best to act right away upon finding out about a default.
Many clients find texting an easier route (compared to phone contact) in communicating with the other side in a divorce or child custody case. It is an excellent means of instantaneously relaying information to the other side. It is an invaluable resource when emergency situations arise. It documents communications.
While most people realize that their texts can be used as evidence in court and so should refrain from using crude language, what they often fail to realize is that the wording and/or the tone of their texts can be equally offensive or otherwise inappropriate and can be used against them. A text that is bullying, insulting, snide or demeaning, even though it avoids profanity, will make a good exhibit − for the other side. Name-calling (even of the non-profane variety) and judgmental opinions should also be avoided. Texting should be limited to relaying information in as neutral and civil a manner as one can muster.
Texts are really no different from emails and emails are no different from letters. Technology and the speed of communication that it permits do not excuse lack of reflection and judgment.
In Team of Rivals, Doris Kearns Goodwin relates how Abraham Lincoln would write angry letters to his cabinet members and his generals, but typically would put the (read more)