BULLET PROOF YOUR MOTION YOU FILE WITH THE COURT AND YOUR ARGUMENT IN COURT
Note: This is the third of four blog postings that I’ll publish in as many weeks. You will want to read them all.
My first blog posting on Bullet Proofing Your Summer Parent Time dealt with providing bullet proof advance notice of your summer parent time plans to your ex. The second blog posting discussed your options for seeking court assistance, if your efforts to give advance notice and coordinate with your ex fail.
This blog posting covers how to make the motion you file with the court—and the arguments you make in court—as persuasive and effective as possible.
No matter what kind of motion you file, you will want to ensure you have certain kinds of evidence submitted to the court in your favor. If you followed the suggestions in Part 1 of this series, then you have in your hands:
- a complete copy of the written notice that was provided to your ex at least in advance of the date school is dismissed for the summer (and if you didn’t read Part 1 before school is dismissed, you still gave as much advanced notice as you possibly could); and
- a certificate from the post office or FedEx and/or an e-mail read or delivery receipt proving delivery and/or receipt of your notice.
You will attach both a copy of your notice and proof of delivery/receipt to the documents you filed with the court.
- If, in the course of notifying your ex of your summer parent time plans and making efforts to coordinate them with your ex, you also personally telephoned or met with your ex for this purpose, then if you follow the advice Part 1 , you had a witness present for that telephone conversation and/or during that face-to-face meeting, and that witness has now filled out and sign a written affidavit or verified declaration confirming that you provided notice, and that affidavit or declaration is further evidence you can provide to the court.
Now what kind of motion do you file? You have several options available to you when seeking court help:
- The most popular, most common option (though perhaps not the most effective) is known as a Motion for Order to Show Cause Re: Contempt. You can read more about what relief a motion for order to show cause in re: contempt can get you by reading Part 2 of this series.
The rules governing how to file for a motion for order to show cause are both complex and not uniform throughout the State of Utah, so to ensure your motion for order to show cause works its way through the system as swiftly and effectively as possible, here is what I do (if you try to file and prosecute a motion for order to show cause in re: contempt by yourself, you will need more information on this summary that I give in this blog to ensure that you do this right the first time. If you have questions about this and would like to hire me to help you with this process, you are welcome to do so):
- Prepare and file a motion for order to show cause. Your motion asks the court to issue an order to your ex asking that he/she be ordered to appear in court on a specific date and time and to then and there “show cause” as to why he/she should not be held in contempt for violating the courts orders and/or statutory provisions governing your efforts to exercise your summer parent time.
- You must also prepare and file with the court and affidavit or verified declaration “sufficient to show cause to believe a party has violated a court order.” It is also a good idea to prepare a short memorandum explaining the basis for your motion and explaining to the court why you should prevail on the motion.
- With your motion for order to show cause you also file a proposed order to show cause. This proposed order could look something like this:
- Respondent shall be and appear before this Court on Wednesday, the 29th day of January, 2014, at the hour of 9:00 a.m., the Honorable District Court John Doe presiding, to then and there show cause, if any he may have, why you should not be held and sanctioned in contempt of court as follows, for failing to comply with the Court’s parent-time provisions in the Decree of Divorce issued in this action on July 9, 2012:
- A fine not exceeding $1,000 and/or a jail term of 30 days, or both.
- If an actual loss or injury to a party is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay a sum of money sufficient to indemnify the party aggrieved and to satisfy his costs and expenses. See Utah Code § 78B-6-311. Damages to party aggrieved.
- Commitment to the county jail or to prison until the act is performed, or until released by the court, to ensure compliance with the parent-time provisions of the Decree of Divorce in this action because the contempt consists of the Respondent’s omission to perform an act enjoined by law, which is yet in the power of the Respondent to perform.
- An order to pay Petitioner’s court costs and attorney’s fees incurred in bringing this Motion.
- Then you need to have the judge assigned to your motion for order to show cause date and sign your proposed order so that it goes from being merely a “proposed” order to an actual order of the court.
- Next, although some district courts in Utah do not require you to have your ex personally served with the order to show cause signed by the court, some district courts do require that your ex be personally served, so it is best to err on the side of caution. You can ask the local constable, sheriff’s deputy, or commercial process servers to provide this service for you. Only certain people are authorized to serve court documents, so don’t try to “serve” your ex by yourself or in any other way that does not comply with court rules, or it will not be considered properly served, and then you will not be allowed into court to prosecute your motion for order to show cause.
- Whoever serve your ex must then file an affidavit with the court to provide proof to the court that your ex was served.
- You also have to ensure that your order to show cause is served upon your ex at least 14 days prior to the date of the hearing; if you do not serve your ex at least 14 days in advance of the date of the hearing, then the court has the option of not holding the hearing and continuing it to a later date.
- Once you have motion for order to show cause filed with the court, along with your supporting affidavit and memorandum, and you have obtained the court’s signature on your proposed order to show cause and then have that order to show cause served on your ex, prepare a “notice of hearing” that you filed with the court and serve a copy of on your ex. This notice of hearing will inform your ex of the date, time, and place for the order to show cause hearing. That even though your order to show cause itself will contain the same information, to avoid someone claiming a lack of notice as a reason to postpone the hearing, it is an excellent idea to prepare, file, and serve the notice of hearing no less than 14 days in advance.
- Another option, particularly when time is of the essence or when a parent and/or child is in danger in conjunction with a dispute over the exercise of summer parent time, is a Motion for Temporary Restraining Order.
First, there needs to be, in my opinion, at least a motion or a petition that is already pending before the court seeking sanctions against your ex and/or a modification of the child custody or parent-time orders. In other words, just because you have a decree of divorce already in place, you could not seek a temporary restraining order unless you have filed new litigation. You cannot obtain a temporary restraining order in isolation.
Grounds. A restraining order or preliminary injunction may issue only upon a showing by the applicant (“the applicant” would be you) that:
- The applicant will suffer irreparable harm unless the order or injunction issues;
- The threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restrained or enjoined (“the party restrained or enjoined” would be your ex);
- The order or injunction, if issued, would not be adverse to the public interest; and;
- There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.
Form of order. The order must define the injury and state why it is irreparable.
Paying Security (a bond).
Issuance of the order is conditioned on the applicant “giving security,” which means that you must pledge money or pay a bond to compensate your ex for costs, attorney fees or damage that result if the court later determines that your temporary restraining order was wrongful. If, however, it appears that none of the parties will incur or suffer costs, attorney fees or damage as the result of any wrongful order or injunction, or unless there exists some other substantial reason for dispensing with the requirement of security, the court can waive the requirement that security be paid, but if you don’t want to have to pay security as a condition of obtaining your temporary restraining order, you must explain why your situation is an exception at the time you apply for the order.
Form and scope. Every restraining order and order granting an injunction must set forth the reasons for its issuance. It shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. It shall be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice, in person or through counsel, or otherwise, of the order. If a restraining order is granted without notice to the party restrained, it shall state the reasons justifying the court’s decision to proceed without notice.
Domestic relations cases. Rule 65A provides, at the very end:
Nothing in this rule shall be construed to limit the equitable powers of the courts in domestic relations cases.
This paragraph acknowledges that in domestic relations cases courts must occasionally enter prohibitory or mandatory orders under circumstances that do not permit compliance with the procedures in Rule 65A, and so rule 65A is, in the minds of most courts, not construed to limit the authority of the court in domestic relations cases.
- There is also the option of a Writ of Assistance. “Writ of assistance” means an order issued by a court authorizing law enforcement officers to take physical custody of a child. (Utah Code § 78B-13-102(17). Definitions). There is nothing I could find in Utah statutory or case law that lays down any rules for obtaining a writ of assistance to enforce parent-time or child custody, but here are rules that govern writs of assistance in similar situations.
Utah Code Title 78B, Chapter 13 is known as the “Utah Uniform Child Custody Jurisdiction and Enforcement Act.”
Utah Code § 78B-13-311 governs the circumstances under which a writ can be obtained to take physical custody of a child:
(1) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a writ of assistance to take physical custody of the child if the child is likely to suffer serious imminent physical harm or removal from this state.
(2) If the court, upon the testimony of the petitioner or other witness, finds that the child is likely to suffer serious imminent physical harm or be imminently removed from this state, it may issue a writ of assistance to take physical custody of the child. The petition shall be heard within 72 hours after the writ is executed. The writ shall include the statements required by Subsection 78B-13-308(2).
(3) A writ to take physical custody of a child shall:
(a) recite the facts upon which a conclusion of serious imminent physical harm or removal from the jurisdiction is based;
(b) direct law enforcement officers to take physical custody of the child immediately; and
(c) provide for the placement of the child pending final relief.
(4) The respondent shall be served with the petition, writ, and order immediately after the child is taken into physical custody.
(5) A writ of assistance to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by the exigency of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(6) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.
Utah Code § 78B-13-308 provides an expedited process for enforcement of child custody orders.
(1) A petition under this part shall be verified. Certified copies of all orders sought to be enforced and of the order confirming registration, if any, shall be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
(2) A petition for enforcement of a child custody determination shall state:
(a) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(b) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision shall be enforced under this chapter or federal law and, if so, identify the court, the case number of the proceeding, and the action taken;
(c) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court and the case number and the nature of the proceeding;
(d) the present physical address of the child and the respondent, if known; and
(e) whether relief in addition to the immediate physical custody of the child and attorney fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought.
(3) If the child custody determination has been registered and confirmed under Section 78B-13-305, the petition shall also state the date and place of registration.
(4) The court shall issue an order directing the respondent to appear with or without the child at a hearing and may enter any orders necessary to ensure the safety of the parties and the child.
(5) The hearing shall be held on the next judicial day following service of process unless that date is impossible. In that event, the court shall hold the hearing on the first day possible. The court may extend the date of hearing at the request of the petitioner.
(6) The order shall state the time and place of the hearing and shall advise the respondent that at the hearing the court will order the delivery of the child and the payment of fees, costs, and expenses under Section 78B-13-312, and may set an additional hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(a) the child custody determination has not been registered and confirmed under Section 78B-13-305, and that:
(i) the issuing court did not have jurisdiction under Part 2, Jurisdiction;
(ii) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or federal law; or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 78B-13-108 in the proceedings before the court that issued the order for which enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and confirmed under Section 78B-13-305, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction, or federal law.
You want to ensure that you argue your case persuasively, both in writing, and orally when you appear before the court commissioner or judge. No matter what kind of motion to file with the court, it is crucial that you are clear and that you make a valid argument that the court can accept so that it can grant you the relief you want.
- Be concise, be clear. Judges and commissioners receive literally hundreds and thousands of pages from litigants just like you. Candidly, they don’t always read everything submitted to them. To ensure that your documents are read and fully understood, you cannot waste space or words needlessly on your argument. State your case clearly and as briefly as reasonably possible. That does not mean you have to make your case insultingly simplistic, but you do want to ensure your documents you filed with the court are not so voluminous as to confuse or even upset or judge or commissioner the point that he/she rules against you out of apathy or confusion.
- Make sure that you have complied with all court rules governing the form and content of the documents you filed with the court.
- Make sure that your supporting evidence complies with the rules of evidence. Many things that you may believe are the kinds of things the court will want to know about may not be admissible evidence. Worse, if you don’t prepare your evidence in the proper way and presented to the court properly, the court can reject what would otherwise be admissible evidence.
- On the day of your hearing, ensure that you arrive at court on time, with all of your documents and other evidence ready to present in an efficient and orderly manner.
- Dress as if you were going to church or a formal business meeting. Make sure your hair is trimmed and well groomed, and don’t smell. You want to ensure that your appearance does not detract from the strength of your case.
- Address your judge or commissioner as “Your Honor,” not “judge” or “commissioner”. It shows respect, it shows that you have an understanding of how courts work, and strokes the ego to your advantage.
- Remember that you are there to argue your case, but not to argue with anybody.
That means you do not argue with your ex, with your ex’s attorney (if your ex has an attorney), and especially not with your judge or commissioner. It may seem kind of strange that you’re not allowed to argue with the judge or commissioner, especially if the judge is asking you questions or challenging parts of your story. This is one of those unique elements of our court system works. If the judge asked you questions or challenges your arguments, you may only respond by answering the questions (and not rambling on or trying to divert attention to some other issue) and providing a more clear, more detailed, and/or more articulate explanation to help the court clear up any confusion it may have.
It should go without saying, but telling the judge or commissioner simply “you don’t understand,” does not do a lot to endear you to the court, nor does it do anything to help the court understand better. If it’s clear to you the court doesn’t understand and sympathize with you because of a lack of understanding of the facts and the truth, do your best to help the court see the facts and the truth. Bad mouthing the court and telling your judge or commissioner that he/she “just doesn’t get it” or things like that will only make your judge or commissioner angry and biased against you.
- Your judge or commissioner will ask you to summarize your case with an oral argument. Oral argument simply means that you’re telling the story in a brief, articulate, and logical way.
You do not want to read everything in your court documents to the court. Your judge or commissioner should have already read them in advance and will not appreciate having you repeat everything word for word to him or her again. Make sure that you can cite the highlights and the most compelling parts of your case.
It is perfectly acceptable to ask the court if it understands your argument and is aware of why you feel certain evidence is important and deserving of the court’s attention.
This and my previous blog postings on enforcing your summer parent time is intended to help you gain a better understanding of the help that is available to you through the courts, how you can get them help from the courts, and understand better the process involved in getting that help.
I know that many of you who read my blog postings are hoping to find out ways you can go to court without hiring a lawyer. To be honest with you, going to court without an attorney is getting easier, but it is still quite specialized and not by any stretch of the imagination an intuitive process.
Judges and commissioners are usually somewhat understanding of people who appear in court without an attorney, but they do not suspend the rules that apply in court, nor do they have a special set of rules for non lawyers. You are still held to the same rules that govern lawyers, and if you aren’t familiar with them and do not know how to comply with them, the court will not overlook this.
If you think you understand the Rules of Court well enough to represent yourself and make a winning argument, that is your right as a citizen, and I wish you all the best. If you know your rights are being violated, and you believe the court would sympathize with you if you were just given the chance to show the court why, and yet you are afraid that your argument will fall on its face if you are left to make it by yourself in court, you really only have two choices: try to make the best of the situation and suffer well or invest in a high-quality lawyer to help you make your case in court.
Thank you for reading, and the fourth and final blog posting in this series will be about what you do once you receive a court order of enforcement of your parent time. This is where the rubber hits the road. The court order that you don’t have enforced isn’t worth the paper it’s printed on, so you’ll want to read the fourth blog posting to bring this whole process full circle to and make it work for you.
If you would like to speak to someone about obtaining court assistance in securing your Summer Parent Time NOW, click below.