BULLET PROOF YOUR HEARING
Note: This is the fourth of four blog postings that I’ll publish in as many weeks. You will want to read them all (and likely want to read them in order to get the most out of them).
The 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. The third posting covered how to maximize the impact of your motion you file with the court seeking enforcement of your parent-time.
This blog posting deals with your presentation in court itself, in person, before the judge or commissioner assigned to hear your motion, and how to ensure you make it as persuasive and effective as possible.
We start with the assumption that you have followed the steps outlined in blog postings 1 through 3 on this topic, meaning:
- You gave your ex plenty of advance, clear, courteous, written AND oral, repeated (but not excessive) notice of your summer (or other) parent-time plans. You have evidence of advance, clear, courteous, written AND oral, repeated (but not excessive) efforts to show you are cooperative and flexible. You had at least one witness to your efforts. When you ex ignored you or refused to comply, you gave your ex plenty of clear, courteous, written AND oral, repeated (but not excessive) notice of your intentions to enforce your summer (or other) parent-time plans.
- When you ex ignored you or refused to comply, you gave your ex plenty of clear, courteous, written AND oral, repeated (but not excessive) notice of your intentions to enforce your summer (or other) parent-time plans, and again, you had at least one witness to these efforts as well.
- You considered your options as to what forms of court assistance would be best for you and prepared yourself and your other communications with your ex accordingly, so that you ensure you have everything you need to seek the help you need or want.
- With evidence in hand of your advance, clear, courteous, written AND oral, repeated (but not excessive) notice of your summer (or other) parent-time plans and evidence of your efforts to be cooperative and flexible, you neatly organized it and presented it clearly and concisely in your motion to the court. You complied with every prong of statutory and court rule procedures to ensure that your motion will be accepted by the court and cannot be rejected for failure to comply with the rules. You made sure that you served your motion properly and timely upon your ex. You got a court date from the court and provided notice of the hearing both to the court and to your ex well in advance of your hearing date.
Now here is where the rubber meets the road.
All of your effort, all of your preparation all of your planning, and all of your argumentation rides on making a favorable impression on the court. While it may be possible for you to have won the court over with the motion and supporting documents you filed with the court, typically the court does not make up its mind until after your hearing.
Your hearing give you the opportunity to ensure the court fully understands your predicament. Your hearing is where you ensure the court has read all of your documentation, and is familiar with the provisions of your parent time orders, so that it cannot do anything clued it must rule in your favor. And how do we do that?
First, DO NOT assume that your commissioner or judge has fully reviewed what you filed or that your commissioner or judge completely understands the situation and the bases for your complaints. Sometimes the clerk for commissioner or judge may not have given the commissioner or judge all of the documents you filed with the court. Other times, your commissioner or judge may not be aware of everything you filed. Frankly, there are some commissioners and judges who just skim what you wrote and submitted, or simply did bother to read it at all. So make sure that you are satisfied that the commissioner or judge knows the story and knows the important elements of your argument.
Second, one of the best commissioners I know explained it to me this way when giving me a winning formula for winning a motion: build the box to which you trap your opponent. What he meant was this: if you are, for example, moving the court to hold your ex in contempt of court for violating parent time provisions, then make sure you establish proof of each element of contempt. Each element of contempt constitutes one “side” of the box you build around your enemy. Once you have every part of the box collected and assembled, your enemy is trapped, and you have won. Fail to build a complete box, and you leave your enemy and escape route, and you lose.
Know what the law and the court rules require of you to establish a winning argument. Make sure you have as much evidence as necessary support that winning argument. If you don’t have everything you need to make a winning argument, don’t file your motion. The court cannot grant the motion that is not legally sound. It cannot give an “A” for effort. I would be lying if I told you that I have seen court’s grant motions they should not have granted, but did so anyway out of bias or sympathy, but don’t count on that happening to you.
Third, know how to make favorable impressions when you appear in court to argue your case. Here are some tips for making the most favorable impression:
- Now a lot of people will think what I’m about to recommend is self-serving on my part, but it’s not: even if you could pass for looking like and sounding like and acting like a lawyer, there are many commissioners and judges who hate dealing with people who represent themselves.
I have seen self-represented people (known as pro se litigants) go to court and make articulate, well- reasoned arguments that were neither too long or too short, and who lost any way, and frankly, the only reason I could conclude they lost is because they somehow offended or insulted the court by having the nerve to show up and argue without a lawyer at their sides. That’s just the way it is. It isn’t fair. There’s no law that requires you to hire a lawyer, but having a good, well-spoken, well-organized lawyer argue your case in court can make a strong argument stronger, and a weak argument a winner just by virtue of having it presented by a lawyer who inspires the confidence and gains the respect of the court.
As my father-in-law so sagely stated to me, “Don’t jump over dollars to pick up pennies.” Look, I realize that you may only be prepared to argue your case in court without needing a lawyer to make the arguments themselves, but it’s not merely making the argument be need to concern yourself with, it’s making a persuasive argument, so if you want to improve your odds of winning, invest in a good lawyer to accompany you to court and make your argument before the judge or commissioner.
- If you absolutely, positively cannot afford a lawyer to come to court with you and present your argument, keep these principles and some in mind throughout your entire presentation:
Make sure your dress and grooming is an asset to your case, not a detriment.
- Business attire is the best dress code for court. The courts will often let you wear almost anything you want to court, but that doesn’t mean you should. While you could come to court in a T-shirt and jeans, the court session is the kind of occasion but should be treated with more solemnity that a baseball game. Yes, you can argue that you’re right to dress however you want, but don’t let your bullheadedness and pride stand in the way of you winning the legal argument by having the court draw unfair conclusions about you because of the way you dress.
- Dress and groom yourself well enough that your dress and grooming do not distract the court. Your dress and grooming should be neither sloppy nor over-the-top glamorous. Both you and your clothing should be clean and smell good. Clothing should be wrinkle free. Shoes that are polishable should be freshly polished. If you have no sense of style, ask someone who does to help you put together an outfit for court.
- Make sure your hair is freshly trimmed and combed. Men’s faces and women’s legs should be freshly shaven.
- Don’t smell like smoke. Cover tattoos as best you can. Take your piercings out, if you have them.
- Men, ideally you should wear a well-fitting suit to court. If you do not own a suit and need to borrow one, make sure it fits you. Showing up to court in a jacket that is clearly too big or too small for you makes you look like a rube and all but shouts to the court that you are a fish out of water. If you try to wear a blue blazer and khakis to court, there are worse things to do, but a suit is a much better bet.
Where real dress shoes with your suit. No, black tennis shoes do not count as dress shoes. Wear black socks with your shoes. White socks with dress shoes is another mark of a bumpkin in court. ‘Sorry if I may have offended you at this stage, but better to tell you now and have you discover the sad truth after it’s too late to do anything about it.
Ladies, if you have access to a business suit, wear it. If you don’t have access to a business suit, cobble something together that closely mimics a business suit: modest blouse, jacket, closed toe shoes. Wear your hair in a conservative, businesslike style. Make sure your clothing fits well and does not draw unwanted attention to you.
- Stand when the commissioner or judge enters the room and do not sit down until the judge or commissioner tells you that you may be seated.
- Each time you address the court, stand before you speak and then address the court. Almost every courtroom has a podium. You do not have to stand at the podium when you address the court, although you do have that option.
- Address your judge or your commissioner as “Your Honor,” and not as” judge” or “commissioner”. There is technically nothing wrong with calling a judge a judge or a commissioner a commissioner, but some judges and commissioners get very touchy about this, and you can never go wrong by using “Your Honor,” so play it safe.
- Remember that old saw, “a child does not speak unless spoken to”? Even though you are not a child, this principle applies rigorously in court. Do not talk to your judge or your commissioner until her or she asks you to begin your argument or to answer a question. If you feel you must speak to the court before your judge or your commissioner asks you to speak, do not just pipe up out of nowhere with “Hey, I forgot to mention . . .”; instead, meekly, but audibly and clearly say something like, “Pardon me, Your Honor, but may I ask/point out . . .” or “Excuse me, Your Honor, but you may want to know . . . ” Even when you are on your best behavior, don’t expect your judge or commissioner to treat you kindly simply because you are being so polite, you can rarely interrupt the court without the judge or the commissioner at least acting upset, prepared and don’t let it throw you.
- Do not argue with your judge or commissioner. Actually, this is not an absolute rule, but a generally good rule of thumb. Sometimes, frankly, if you don’t argue with your judge or commissioner, then your judge or commissioner may rule against you when he shouldn’t. Do not be afraid to stand your ground when it really counts. That stated, pick your battles and remember that you don’t want to win one of those battles only to lose the greater war.
- When your opponent is making his/her argument, sit quietly and politely listen. Do not sign, snort, grunt, roll your eyes, murmur “that’s a lie” under your breath or tap your pen. This is extremely rude and distracting, and will do your case no good. Ensure that anyone who accompanies you to court and who sits in the gallery follows the same rules. Ms. behaving in court can get spectators removed from the courtroom, and in extreme situations jailed for contempt of court.
- You are to present your argument to the court, and not argue with the opposing party. If you argue with each other, the court will chastise you both and will likely shorten the hearing just to keep you from sniping at each other.
- When the hearing is completed and the judge or commissioner issues its ruling, the time for argument has ended. You may certainly ask clarifying questions about the terms of the court’s ruling and order, but you cannot continue to attempt to argue your case any longer. Just listen and take notes of the court’s decision now.
If your case is before a domestic relations commissioner and you didn’t get the ruling you believe you deserved, you can file an objection to the commissioner’s ruling and ask the judge assigned to your case to give you a new hearing. You cannot object because you lost fair and square, but if you feel the commissioner committed an error of law, you have the option of and right to object. To learn the details of the procedure for objecting to a commissioner’s recommendation, consult a good family law attorney.
Make sure your motion asks the court to include in the order express and explicit instructions to law enforcement to enforce the order, by force if necessary, to deliver your children into your custody in compliance with the court’s child custody order. If you win your motion, make sure the court actually does include in the order those express and explicit instructions to law enforcement. See Utah Code § 30-3-5(5)(b):
(b) Upon a specific finding by the court of the need for peace officer enforcement, the court may include in an order establishing a parent-time or visitation schedule a provision, among other things, authorizing any peace officer to enforce a court-ordered parent-time or visitation schedule entered under this chapter.
Forewarned is forearmed. Take this series of four blog postings to heart when you’ve had enough and are ready to put some teeth into your parent-time order. You and your children deserve it.
If you’ve read this article and feel you need help now protecting your parent time, click below to schedule an appointment.