What is the best way to get the courts to follow the laws already on the books and the constitution for custody battles?
To be frank, in my opinion there is not a lot you can do successfully within the legal system. You are at the mercy of the system far more than it will ever be at yours. Although the system is actually fairly well designed, it only works as well as it is administered, and in my opinion, it isn’t as consistently administered as well as it can be. So some of the best advice I have found is: “Extricate yourself from the system, don’t try to vindicate yourself within it” (Paretz Partensky). This does not mean that you fight fire with fire and become a law unto yourself. It does not mean you disregard or violate laws and procedures. No, it means that you find ways to justice and equity that don’t rely (or completely rely) upon the legal system. You solve the problem(s) with alternative approaches that are lawful, just not in and through the legal system.
A word here on settlement. Lawyers frequently advise clients to settle. Why? If the legal system worked so well, lawyers wouldn’t need to harp on settling “out of court” so frequently. If the legal system worked so well, it would be efficient, inexpensive, consistent, peaceful, and reliable. It would be seen as a prudent and savvy way to address and resolve disputes. Lawyers urge settlement for many reasons, one of which can be because of a lack of faith in the system. Settlements rarely, if ever, result in a perfect solution, and rarely result in a “net gain” solution for you. But even a “settlement I don’t love, but can live with” will likely resolve your dispute more efficiently, inexpensively, consistently, peacefully, and reliably than going to court. Were this not so, then there would be virtually no reason not to go to court for a resolution.
If your judge is the kind who acts as a law unto himself or herself, or if your judge is too apathetic or indifferent to follow and enforce the applicable legal and constitutional provisions, it’s easy for your judge to get away with such behavior. I’m not saying it’s impossible to hold such a judge accountable, but it is not easy. Worse, sometimes you end up winning the battle, but losing the war if you insist on the judge following and enforcing the law to the point that the judge feels antagonized. You then risk the judge becoming biased against you (but in a plausibly deniable way; no judge who is biased wants to appear that way because that could jeopardize his/her job).
So what can and should you do?
Cite, cite, cite the applicable legal and constitutional provisions. Cite them conspicuously in your legal briefs and memoranda. Attach copies of the applicable legal and constitutional provisions to them. Quote them out loud in your hearings. Be as persuasive and appealing in your arguments as you can. Point out (as inoffensively as you can without your message being silenced or overlooked) every time the opposing party/lawyer misstates. misconstrues, misapplies, flouts, and/or ignores them. Object clearly and unequivocally every time the judge or opposing party misstates, misconstrues, misapplies, flouts, and/or ignores the applicable legal and constitutional provisions .
If your judge is the kind who takes it personally if he/she is appealed, find ways to make it known that you are not afraid to appeal decisions that misstate, misconstrue, misapply, flout, and/or ignore the applicable legal and constitutional provisions. Don’t make idle threats. And don’t frivolously appeal or intimate that you will appeal. It’s not only morally wrong, it’ll likely backfire.
Finally, if a judge’s disregard of the law is sufficiently egregious, you can lodge a complaint with the presiding judge and/or your judicial conduct board. But if you contemplate this action remember the “win the battle and lose the war” warning.
Utah Family Law, LC | divorceutah.com | 801-466-9277