A Practical Guide to New York Family Court: The Judicial Perspective

thanks very much I as was said I am now the executive director of her justice and in that capacity I oversee an agency that as was said provides legal services and advice to over 7,000 women and children in New York City every year and one of the ways in which we do that is through pro bono service the majority of the full representation we offer our clients is through the volunteer assistance of attorneys from firms from throughout the city and we practice in the areas of family matrimonial and immigration law one of the reasons we created this presentation for you this morning is because when we talk to a lot of our pro bono attorneys especially externs for mid-level associates who work with us for four to six months in the office what we heard from them was that we provide great training on the substantive area of law and they certainly know how to prepare to litigate but what they needed more help with was sort of the VirB lawyering how do you perform in family court what is the judge thinking how do I get my issues across to the judge how do I know she ate with opposing counsel so that's what we're really going to try to talk about this morning to give you more comfort when you're going into family court to practice about how proceedings will go to the extent that that is predictable so I am joined up here today by one of our staff attorneys senior staff attorney Diane fin yellow who joined her justice in 2010 and is an expert in family in matrimonial law and in addition to her own cases supervisors and mentors the volunteer attorneys that I mentioned and of course our guest appearance today is by judge Siegel Phillip Siegel has spent ten years on the family court bench in New York City prior to that he was a legal services attorney and he is currently practicing in many areas including in family law but rather than my give a long introduction because for judge Siegel it would be long I would like to start by asking him to tell us a little bit about his professional background well it's only long because I'm so old but I'm actually a product for the 60s and I went to law school to be a legal services lawyer and fortunately I marched out of law school and I immediately got a job at a Bronx legal services in the south Bronks I spent a number of years there primarily as a litigator and a supervisor of litigation from there I decided to work for two for labor unions I my next stop was at dc37 Municipal Employees Legal Services where I spent a number of years and created their family law department they weren't doing family court litigation until I got there and and we created that now they're very active in the field from there I went to building service 32bj legal services fund another labor union that has a prepaid program for their membership and from there I actually was well in the middle of all that I briefly worked for a plaintiffs negligence a medical malpractice firm I did that because I like trying cases but then I decided I needed to go back into legal services so I did but from there I was appointed to the bench by by David Dinkins in the early 90s and I did spend ten years on the bench I left to go into private practice and start my own firm but I stayed on the bench for an additional eight years so I spent 18 years in the place but the second stint was as I say part-time and most of my background a lot of my background starting out really by happenstance wasn't was in family court so thank you summary short summary and and just to explain we decided today them the best way to proceed with this conversation was really to have a conversation so I'm gonna start Diane will be picking up asking the judge some questions and we invite questions from all of you as well as those for those of you watching on your computers at home the questions are divided into categories and so we would encourage people to hold their questions till the end of a category and we'll integrate the questions we get from the viewers at home as well or offices I should say so I think your backgrounds really interesting and I don't know if you can answer this judge one of the things that you've talked about we discussed before today is that every judge comes to the bench with a different background do you think that your background from your experience was your background typical of the backgrounds of other family court judges or different door well you know I don't think judges come from many different backgrounds some of them have experience in family court some of them don't I don't think that's necessarily bad I think you know experience and other areas of law brought in the Family Court is often a good thing and I don't think that necessarily judges come to the Family Court bench with a judicial philosophy as such but they certainly come to the bench with a perspective based on what they their based on their prior involved in the Family Court as a practicing attorney as I say I was a legal services attorney and prior to my appointment most of my background in Family Court was child protection and related foster care litigation custody access visitation domestic violence I also did do some juvenile delinquency but so my perspective I can only say about my perspective and I think it's it's different with different judges but my perspective was that that I didn't think the law was always applied in the way it was written for example the Family Court act is a very progressive procedural statute in my view I mean for the most part the the more elaborate articles have more detail but I think it's a it's a fine statute but my experience was that it was often not applied the way it should be applied and I also felt that this term the best interest of the child which everybody's heard yes everybody everybody knows what that means because if you do you and I have to meet afterwards you explain it to me but but this I thought that this term best interest of the child was miss applied often and used as a cover sometimes for judges to simply rule based on their personal beliefs personal opinion as to what should happen in the case the best interest of the child is a standard that that I know is not easily defined I mean I can I can tell you today that I have no better idea as to what that term means and I did when I started decades ago some commentators have written that this standard best interests of the child is vague ill-defined and accords judges so much discretion that it's off on in possible to predict how they're going to rule in a particular case or with similar facts judges will rule differently in other words my my perspective when I came to Family Court was that I had to apply the law and and didn't believe it was ever appropriate for a judge to to rely on any degree of a personal opinion to do otherwise I think is a disservice to everyone and to the law and invites anarchy in the adjudication process but let me be clear I don't advocate doing away with the best interest of the child standard when that application when that rule has historically been applied for example in custody cases between people with the same status parent vs. parent non parent versus non parent I mean that's the legal standard and that standard does allow for appropriate discretion and allows the judge to tailor a disposition to the facts and to the circumstances of the of the family and of course no one wants the outcome of a case to be contrary to the best interests of the child but I've learned through many years of practice both on both sides of the bench that reasonable people can legitimately disagree over what is in the best interest of the child so for example I've had cases where I've had six or seven parties before me sounds like a Rico prosecution of some kind but but it's you know a complicated child protective proceeding where there's an attorney for ACS there's an attorney for a child care agency there may be a foster parent there's a couple of parents they they have lawyers there's a couple of attorneys for the children because they may have a difference of opinion so you have six or seven lawyers and they're all in front of me beating the fists on the table telling me that I had to do what was in the best interest of the child the problem was that they all had a completely different idea as to what that meant so your job as attorneys I'm going to digress a little bit is to educate the judge because as to what really is in the best interest of the child in a particular case where the judge is going to default to two preconceived attitudes and just kind of pigeonhole you the evil to be avoided in miss applying the best interest of the child standard in my view was best articulated by the US Court of Appeals for the Second Circuit in the case entitled duchesne versus Sugarman if you're interested you can look it up it's at 566 federal second at page 817 566 federal ii 817 it was decided by the circuit by the Second Circuit in 1977 Dechaine was in 1983 damage action it was commenced by parents of several children against what was then called the bureau child welfare has anybody ever heard that phrase okay yesteryear I'm a little wild enough but on the street visible sometimes they'll call it that you know the name has been changed over the years for various reasons but we will let it go with that but anyway so the parents sued ACS I'm sorry suit suit ACS or what was then BC W because BC W had seized their kids and held them in foster care for years underline the word years without any court order and without the parents written consent there was no voluntary there was no court order there was no nothing these kids were just in foster care so they brought this action and the parents claim that by seizing the kids their constitutional rights had been violated in reversing the district court's dismissal of the complaint for the failure to stay the cause of action the Second Circuit wrote the following of course the deprivation of Liberty involved here was purportedly based on the best interests of the children and hence is not precisely akin to that caused by an arrest nevertheless of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive those who torment us for our own good will continue to torment us without n for they do so with the approval of their own conscience that's the speech okay next following that I'm gonna return us a little bit to the day-to-day mechanics of the court but keep all of that in your mind of course because that will seep through the day-to-day mechanics so if we could start at the beginning of the day can you talk about what you would do to prepare for the day on the bench okay I can only tell you what I did and because it will just discuss things a little bit before this program began the experience of a Family Court judges that you're running a little law firm as it as it were and everybody and every other judge is doing the same thing and you really don't have a lot of communication with other judges and what they do although you may hear anecdotally what's going on around the courthouse so that said I can only tell you what I did and the and the experience of a family court judge actually is somewhat overwhelming on a daily basis because you've got a calendar of 30 or 40 cases and you have to deal with them all in some fashion and I used to say that I could deal with any case family court had to offer the worst kind of case but I couldn't deal with ten of them between 1:30 and 4:30 in the afternoon so the experience is overwhelm what do you do to try to get on top of of the caseload what I did personally was the night that when I finished for the day I would look at the cases in the calendar for the next day I would go through the jackets didn't spend that much time maybe 45 minutes maybe 15 minutes but I personally review the cases if there were reports that had been submitted to the to me I would review them it wouldn't take long because I'd already read them I'd also review my notes on what was then called F 99 s the endorsement sheets if I written or made some kind of preliminary or earlier decision in the case I would refresh my recollection about that if there was a motion that was going to be heard tomorrow I would review the motion papers again because I had already looked at that when it came in and in that way try to educate myself and get on top of the details of the case the night before and then the day of how do you prioritize hearing the cases and what are what's the role of the other on professionals in the courtroom the clerk the court officer etc well okay so if obviously if there was a hearing set for a time certain I'd expect the people to show up but who mostly everybody here's appeared a family oh yes is there anybody here who's not appeared in a family court well you know I'm it's truly not trying to be cynical but it's but as a case study and often at least in New York City and chaos I mean there are there's numbers of parties there's numbers of lawyers and if I don't have a case that's a time certain where presumably everybody's going to show up you can only call a case of everybody's there the only time it seemed to me that everybody actually showed up all of a sudden was if I left the bench and went upstairs for 10 minutes then I come downstairs to find out there were five cases ready to go and where was I you know but so the court officers are there to do a couple different things they obviously they call the calendar they swear people in oh but they try to assemble lawyers there's so many lawyers or institutional lawyers in family court that they're all over the place the court officer has some idea where they are has some idea when he can pull cases together and so the court officer will do that and of course provide security in addition to all of that so who else is in the courtroom there's there's a parts division clerk the clerk in the courtroom who is assigned to you who sits next to the judge I mean they're responsible for the calendar in the sense that cases may have to be added files may not be in the courtroom that need to be in the courtroom they'll get that they'll manage the mechanics of moving the cases through the through the courtroom the other people who are supposed to be that I mean I just expect the lawyers to get there at some point and be familiar with what they're supposed to be doing and and be you know prepared I didn't cover everybody I think who's left court attorneys with the court attorneys and the attorneys for the parties obviously yeah well well you know a little control over them more control over the court attorney or at least you know where the court attorneys is looking at Gabriella right but what how judges use court attorneys varies and is very different depending on the judge number one and depending upon what kind of part is sitting in if you're sitting in a part that deals with what we call visa knows custody visitation access and family offense the court attorney will spend a lot of time talking to the parties and a attorney if there are attorneys to try to size up the case to see if it can be settled on on some basis if you're in a part we're doing other things for example presiding over juvenile delinquency cases the court attorney would do much more research in writing and they would in a custody and found the Family Violence part and before you take the bench how much training did you receive on domestic violence well I worked in programs that dealt with domestic violence so I did have training and and you know knowledge of domestic violence and how I I thought and ideas as to how I thought it ought to be dealt with but judges come from different backgrounds I mean there is training for judges on the bench and there is some training involving domestic violence for for judges and how about your perspective from the bench regarding pro bono attorneys volunteer attorneys since a lot of people I think listening today and watching the video will be volunteering did you have a perspective on volunteer pro bono attorneys versus the institutional providers you mentioned before well I thought they were great I thought they were great because they they had the resources to work up a case ahead of time they clearly knew what the law was and what the facts were you know the case was well prepared you know the downside was that most pro bono attorneys hadn't spent much time in Family Court and didn't know you know on a day-to-day practical level how the place operated so the institutional lawyers knew that and could could play that but I think the III always wanted pro bono attorneys I thought it was great I think most of my colleagues felt the same way frankly I think the institutional lawyers and the people who were in family court all day long sometimes felt envious that they didn't have the resources available to pro bono attorneys and didn't have the time to spend working up a particular case in the same way a pro bono attorney did but I thought it was clearly positive for for me personally the the cases I was presiding over in the system in general do you have any suggestions for volunteer attorneys getting back to what you said earlier that you've got and incredibly have a caseload that the court officers are trying to juggle these institution attorneys who all over the building and trying to get everybody in the same place at the same time for you to hear the case that often results in delays and hearing cases do you have any suggestions for volunteer attorneys about how they might try to manage that if that's manageable who they should appeal to should they be waiting four hours for their appearance in front well you know that's the family court experience that you go to whether you're an attorney or litigant you go down there and you spend hours in the place and all of a sudden the court officer comes running out of the courtrooms yells your name you jump up you run it to the courtroom and like two minutes later the whole experience is over you know and I've had I've had as a lawyer I've had litigants say to me what happened in there and I said I have no idea there's no know you're the lawyer you must really know I said well it's kind of hard to sort out exactly what's going on except that it's the system is enormous lease slow sometimes it's too fast but mostly once cases get going it's it's too slow look I think the only thing you can do you have you can't change the system yeah I learned that after about 30 days on the bench I was going to change the whole place and this and then I learned that I wasn't changing very much at all except that you know I had the ability to rule on the case that was presiding over but what pro bono attorneys might do is find out where the other lawyers are stay in communication with them and try to assemble you know the lawyers that needed to be there if they could if there's anything they could do to get lawyers there or to help the court officer out in that regard you can get your case call quicker but it's kind of hard to avoid spending a lot of time at family court and how about some of the other things that can happen in that forum that can be a bit confusing what about when a judge insists or really wants to speak directly to a litigant as opposed to the attorney when do you think that's appropriate and is there a way for the attorney to redirect the judge to themselves even in the courtroom itself yes on the record well there are there are judges who believe that speaking directly to the litigant would have a you know significant impact and and and I'm sure that judges direct comments right to a litigant because they think maybe they can get them to change whatever they're doing that the judge wants them to do differently and and maybe facilitate a settlement of some kind but look it's very if a judge wants to speak to a litigant I know you may not want the judge to do that for variety reasons but there's not much you can do I mean you could say judge I'm the attorney please direct your comments to me you know whether that's a good idea or not I leave to you but I would say it's it's hard you're not going to reform the judge and get the judge to do things very much differently simply because you squawk a little bit so you have to pick your battles and now whether you want to pick that battle on out I'll leave that to you in the circumstances and similarly what about settlement negotiations before the judge is it a good idea to have that conversation before the judge and I think the concern behind this question is what if settlement doesn't occur and then you're proceeding with the case and those options have been put in front of the judge who's then deciding them I understand the problem I mean you know you don't want the judge to find out all the bad facts in the case you know the judge will or hear about evidence that may never be offered because there's some problem with its admissibility I mean I understand the problem but if you actually if you look at the court rules there are court rules that apply to family court in any event there's a specific rule and it's 22 New York odo rules and regulations I think it's 205 point 7 or there abouts it says that the judge can hold conferences and at the conference the judge can do a number of things including figuring out what discovery is necessary to the extent there is discovery in family court but one of the main things that's listed that a judge can address at a conference is settlement so I mean the court system itself recognizes that judges can hear about the case you know in a conference and hear about what the evidence might be even though you don't like that very much the best you can do I think is simply try to advocate your position in that context as best you can and tell your clients story as best you can you litigate is nothing but story tell us and you have to tell a compelling story and you can do that in that environment as well in a settlement conference or some kind of conference with the judge and similarly what about off-the-record conversations when do you think it's appropriate or likely to have an off-the-record conversation and is there anything an attorney can do if they want to get that conversation back on the record yeah I think that it's it's fairly common a family whether it's right or wrong it's a fairly common practice for judges to go off the record either they take or they take the lawyers into the back and go off the record or you go up sidebar and they turn off the machine or tell the court reporter to don't don't take anything down is it right no you know the question is how can a court of record conduct proceedings that are off the record you know it's oxymoronic right it doesn't make any sense there's so I think that if you want to make that an issue you can and I think that most judges would respond they may not be happy about it because they want to talk off the record why do they talk off the record because they think you're gonna get the real information at that point you know they're going to find out what's really going on without a record being made and they think that'll help this facility or at least facilitate a disposition of some kind but I think you can say that the judge looked judge I respectfully I object I'd like to have this all done on the record if you don't mind can we please do that and I can't imagine it judge may not be happy about it and make grimace or give you you know not a nice look but I but my feeling is whenever I've done that that judges will go on the record because they know they have to and what about we talked about delay is just the delay of the spending a day in family court that cases are called at different times what about delays because parties may not be responding deadlines is there any way that attorneys can get the court to address that and can you explain why there's at least a perception I'm on a lot of volunteer attorneys I think that missing deadlines is not taken particularly seriously in the Family Court so but just give me an example what kind of deadlines do an answer that they an any projection of evidence or I mean it happens excuse me more often than not in our child support cases which you know as a practitioner I think that you could speak to oftentimes you know the the respondent is advised to produce his financial disclosure affidavit produced you know statements regarding his income and from court appearance to court appearance months pass and and he there's no productions over at that point when does the courts say okay we're moving this forward or at war you know allows you to make a motion to compel because we've talked about discovery issues so I think that's where that that comes from well you can make a motion you can make a motion to compel certainly but the remedies that the employed may be problematic because I can tell you that the Appellate Division doesn't like Family Court judges deciding cases on technicalities they want if they haven't said it directly that's what I've learned over the years least by implication they they want you to rule on cases on the merits so you can't say okay you're precluded at this point you can try that but ultimately that's going to be given a lot of scrutiny on appeal if it goes up but you know the the experience as you know the experience and family okay the experience in family court okay the experience is thanks the experience in Family Court is as I said it's overwhelmed I mean everybody's overwhelmed the judges overwhelmed the lawyers overwhelm the parties probably overwhelmed too but everybody's overwhelmed because of the numbers of cases and the limited resources in the court and all the things that could go bad in family court and are problematic and not good for litigants I mean yes it's true you should you you have to I'm not suggesting that deadlines shouldn't be upheld but it's way down on the list of things that need to be addressed in a particular case so and plus you've got so many cases competing for a support magistrates time that they tend to say okay I'll give you more time to do it is it right no but it's a it's what happens in family court I keep on pushing the point and I think eventually you know you'll get you you'll get what you want without an artificial sanction then no one's going to preclude anybody preclude evidence or in any of those remedies under CPLR 3126 I think it is but eventually though you'll wind up getting the information that you want just as a follow-up if I may Amy you know we talked about also a lot of issues that do come up is there's been a trial a hearings been held all the witnesses and and no decision has been rendered and it takes some judges in in many of our boroughs many many months to to write a decision and we were wondering if you maybe you can talk a little bit about why that happens well it it happens for the same reasons that I that I mentioned means too many cases not enough resources and one of the pieces of advice that I got when I started on the bench actually from Judge Judy was that don't don't reserve decision in a lot of cases because she'll forget everything that happened and and and then the case will sit there then you have to get the transcripts and I never I never wanted to be transcripts I had to sit through the thing once I don't want to read about it twice you know I just want to want to remember what people said but you know there are judges who just get fired up and want to write a decision and then it sits there for a while and then it never gets done I was always so deathly afraid of having so many cases you know submitted with decisions that I don't think that I I could count on one hand the amount of times I didn't release decisions written decisions within a week of the submission just because I was so afraid that I would get so many of them and I couldn't remember but it's a function of lack of resources being overloaded and you know judge having too much to do maybe it's better to do more on the record sometimes but that happens now so then what do you do you don't get a decision it goes on and on and on everybody rephrase to bring it to the attention of the judge say oh my god if I do that the judge is gonna be angry it's definitely gonna rule against me I can tell you that that's not the case in my opinion I don't think that's true at all I think that you can call up the court attorney asked the court attorney to kindly raise it with the judge have been waiting as problematic there's no decision this happens in in Supreme Court as well I mean I had a case not long ago where there was a year after divorce trial no decision so we started to make some noise and yeah sure enough we finally got the decision a couple weeks later and we won so you have to worry about losing forever by complaining great thank you are there any questions I'm gonna pause for a moment and see if there any questions from the room about anything we've toast gusts so far no yes in the back I've heard the place in the court calendar to see if any of the cases have settled or need to be sent out for mediation or settlement of any sort I saw what was the question there you haven't heard about the place in the court talent where where the judge says now have any of you settled or go out in the hall you know or I'll take the uncontested cases first so I guess your question is does that happen or what what okay so so how in this system and just repeating the question if I get it right I hope where is there a place in the system to encourage settlement or mediation well it may not be on the calendar but I can tell you that the number one well it's not the number one one of the high priorities that every judge has is to settle a case if it can be settled to explore what's going on to see if there's any compromise possible no matter what kind of case it is you can walk into the US District Court the first words out of the judges mouth are going to be can the case be settled image two SEC automatic I think so it may they're not segregated on the calendar as such but I think that once the case is reached in some fashion every judge will will size up whether the case can be settled or if it couldn't be settled before it can it be settled now anything else incensed when you don't already read their mind and know that they want some things filed in this order whatever like if I guess the question will be like why isn't there more uniformity or oversight to make it so that you can walk into it new judges courtroom wouldn't know what to expect and and how like light is the cross communication like around cases and interpretations of the law and procedure so just to restate the question as has been mentioned it does seem as though depending on which judge you go in front of there are lots of different expectations decisions can be made different very differently and not just the subjectivity of the decision but actually the procedures in the way in which the judge expects the proceeding to happen in front of them what is done within the court to create some level of uniformity is anything done to create some level of uniformity among the Family Court judges well I don't think on that level but I tell you that I when I started practicing in family court a long time ago I had the same experience you know you'd walk into a courtroom and the every judge had a different procedure if you didn't immediately understand what they were doing they would say well they were it would seem that you were at fault because somehow you don't know what's going on as opposed to this ten judges in this Court has to deal with things about 15 different ways so nothing you can do about that that's that's it's the way it is and and judges I mean most of what look domestic relations involves a load of discretion in general what happens in family court is even you know it's also highly discretionary and judges tend to view things from different perspectives you know I think and you know in and honestly so I mean they may honestly want to apply the law as well but they come to a different conclusion based on the facts or they consider a particular factor in a custody case more significant than other judges might it's just what happens that's why form shopping is a time-honored tradition in American jurisprudence yes going back to the question of delay sometimes it seems especially if you're representing a sir mystic violence that the user uses delay or additional motions as another way to try to exercise control or power over the survivor and sometimes it seems like the delay itself is not in the best interests of the child so how do you because it creates uncertainty and disruption to keep coming back to family heard over and over again so how do you bring those issues to the poor in a way that a judge will be receptive to them given what you said about one can hear it so the question was regarding delays in particular with domestic violence cases when sometimes the delay in the proceedings and a custodial matter for example can be negatively impacting the child just the delay itself can be harming the child and therefore not in the best interest of the child and the perpetrator may be using those delays as a form of power and control over his or her partner how do you bring those issues in front of the judge well there's no question the delay is bad for everybody delay is in domestic violence cases delay isn't good for the petitioner it's good for nobody in custody cases certainly delay is not good for kids it shouldn't have to take a year or more to sort out a custody case I mean you know it's just bad for everybody the here again the problem is lack of resources in the in the Family Court you're not going to be able to eliminate it what you can do is is try to convince the judge has serious this case is as opposed to all the other cases that that judge may be presiding over and argue that it's really damaging to the child we need to do this faster etc and you know if you say respectfully I don't see any downside to that it's just that you may not be very successful given the system we're dealing with here can I follow up and just push on that a little bit if there are delays that seem like unnecessary delays and we've talked before about how sometimes the judges will permit delays if you will because they too have an overloaded case calendar and may be happy to push things off it starts to feel sometimes to a domestic-violence litigant that you know the judge and the the other party are supporting delay when the domestic violence victim is trying to prevent delay so is there some way to bring that complicated connection to the attention of the court well what I did is yes I would say look again every judge does it differently what I what I would do is I would say look the trials going to start there's no settlement we're just going to set a date we're gonna do it but typically as you know what happens in state courts both the Supreme Court and the Family Court where there are bench trials the judge takes a little testimony kicks it over for who knows how long you know two months and then keeps going and it can take forever to drive the case I didn't do that actually well I thought it was bad but also for selfish reasons because I wouldn't remember whatever I said three months ago so if I started a trial I would continue that trial as much today today as I possibly could even if there was only a little time in the afternoon to get the case I would the people would all squawk the lawyers would carry on but I see not me coming back the trial started and we're gonna do it and we're gonna get it done and and I as a result the vast majority of the cases I presided over we're done you know quicker than they might have been otherwise if I just going along with the program and I turned it for months but you know some judges are better with a calendar than other judges doesn't matter what court you're in where you are it's it's you know sometimes it's just very very slow but there are times when we want there to be a fact-finding for example as I practice immigration as well and sometimes you want a fact-finding so that we can ultimately maybe get a certification for the crime that was committed the order of protection or them so if it gets pushed towards settlement and because of the delay I mean how much can we as practitioners push back and say no we actually want effect money if one side is say well settle and well I understand the reason why I want the fact-finding and I mean it's at least theoretically possible to have a consent fact-finding although that's never going to happen because the respondent won't agree to it or usually wouldn't agree to it most the time I insisted upon that in child protection proceedings where people made admissions I want a specific admissions to specific facts but look I think if you explain to the judge why you need a fact-finding and that you can't settle the case on some general basis we'll just give you an order protection for you know for however long I think the judge will understand and besides which even if the judge doesn't understand the petitioner filed the lawsuit has a right to an adjudication so as much as the judge and everybody else carry on about how your position doesn't make any sense you can say no it does make sense and it may take more time but I'm gonna be here and we're gonna try this case and eventually it will be great so I think Diane you are gonna move on to some courtroom etiquette and procedure question I know that we have many of you are seasoned family law practitioners in the audience but part of our program was going to be geared toward talking about the practical courtroom etiquette for new practitioners and we've all been there at some point in our lives or we're just starting out walking to the courtroom for the first time so what I wanted to talk to you about in this section judge is I walk into a courtroom depending upon the size am where do I sit when there's no indication to sit sometimes in no chairs right so so what what do we do is new practitioners if you you know do you have any guidance as to when we walk into a courtroom how do we familiarize ourselves with the settings and and really what is the setting in the courtroom well okay in in family court if you're the petitioner as you face the judge you're gonna sit on the far right the respondent as you face the judge is on the left and if there's an attorney for the child sometimes I kind of sit wherever but they might be even further to the left more typically at the at the end of the table so and that that's how it sets up if you're not sure you can always ask the court officer any of these questions before you you see the court ups are coming and going you up to them said look I'm new to the family court can you just explain to me the following you know where do I stand what do i do how do I get a copy of the court order an investigation for example you know can you give it to me now don't have to wait to go inside yes yes the court officers and they're happy to happy to help you the only time where that set up in the courtroom may be different is if you wind up in an ID V part which is a Supreme Court part and you're in a court room of the jury box the plaintiff petitioner the people in a criminal case all sit closest to the jury box and the respondent defendants sit on the other side that's the only exception so for example in Brooklyn I think that may be the case but you'll find courtroom so that's the case the jury box may be on one side or the other okay great and I know that when I was first starting out in private practice it was always taught to me that I'm always addressing whenever I addressed the court I'm to stand speak directly to the judge is there a particular way is there a particular preference that you had when practitioners entered your courtroom and spoke to you and address the court well okay you should anytime you address the judge you should stand up I mean I didn't I didn't need the you know it wasn't for me personally it's the institution but the presumption should be you stand up unless the judge tells you otherwise no sometimes the judge will say no no this is just a conference you don't have to jump up just feel free to stay seated then you could stay seated otherwise you stand up what you call a judge it's not what you call the judge outside the courtroom they have to say your honor or judge judge is fine so if I'm the petitioner in the case do I joy start speaking to you directly as soon as you take the bench do I do I wait until you begin talking and addressing the courtroom how does that all play out okay well if I had my judge's hat on I would say no I don't want you to say a word unless I ask you to say something but I've spent a career because of being a lawyer in which I've jumped up like a jack-in-the-box and tried to grab the floor before anybody else because I want to be seen as the most knowledgeable person in the courtroom the person the judge is gonna look to to know what's going on in the case you know I'm telling in that sense I'm telling my clients story because after all we're storytellers that's all we do is litigate us whether you're arguing before a jury writing a brief for the second department at a conference trying a case whatever it is you're a storyteller so that's what you do so I know that often times we all run into difficult adversaries where a lot of I'm sorry meaning what you do is you try to jump up and grab the floor that's what I meant I'm sorry I don't mean to interrupt you what's the worst that can happen the judge says if I ask you to say anything please sit down okay so you sit down you're not going to jail okay you're not a real lawyer until you get yelled at by a judge so that's your initiation we have kiddingly I mean as a legal services lawyer I used to say if the judge wasn't angry with me at least every half an hour I wasn't doing my job you know so so I'm you know on on that note it's getting a little slack from the judges okay but what about if you are dealing with a difficult adversary and that adversary is really not allowing any kind of communication outside the courtroom and you're only moving the case forward from court appearance to court appearance which drags out the case also how do you deal with adversaries who are either not responsive or not willing to communicate in ultimately settling the case because most of the time often they're not we as practitioners want cases to settle depending upon the circumstances of course but how do you deal with with someone who is not responsive to - outside courtroom discussion yeah well that happens because you have institutional lawyers who you know only deal with the case when it actually gets called but there's a way around that because we all know the judge wants cases to settle so at some point depending on the circumstances when the court attorney comes out you can say look we're really trying to settle this case it can be settled and we hope it can be settled certainly reasonable to conclude that it might be settled but I'm having trouble talking to the other lawyer you know can you help me out the court attorney will either go take care of it or involve the judge and tell the judge you can tell the judge directly in a conference look judge we've been trying to make settlement proposals here in the other lawyer I can't get all of them I'm not criticizing him but is there you know something we can do about this the judge will will go for the bait believe me and and and indicate to the lawyer to start talking okay I think that's how you deal with it is there any way is it at any point appropriate for it under that circumstance for example is it any way appropriate to contact the court by their telephone call or by letter advising your adversary of the time of the call that you're going to be placed into the court or advising the adversary by CC'ing in a letter is there any point where that type of correspondence is okay to the court well you should never write to the judge you might get away with writing to the court attorney who will immediately tell a judge so it's really the same thing but no you're not supposed to engage in ex parte communications at all I think letters are found directly to the judge certainly are frowned upon unless the judge indicates otherwise you know the judge says let me know by letter copy the other side if something happens and go ahead and do it but otherwise no I wouldn't and as far as telephone calls are concerned most you're never gonna get the judge in a Family Court part it's much easy to get well you just like often yeah get the judge either in a Supreme Court divorce case or or Family Court they're too busy they're on the bench and most judges court attorneys are not taking a call ex parte if both you're on the phone okay you may have a shot but don't call up yourself they'll just yell at you and that took won't talk to you okay great and at some point we didn't begin we should probably talked about this a little bit earlier but maybe you can explain the difference between the support magistrate the court attorney referee and of course the judge I mean we know a little bit about what the judges role is but what is the difference between those three individuals in the court house well okay I mean obviously the judge is a judge under state state law a sport magistrate is not but by statute they exist and preside over support cases subject to objections from a final order to a family court judge but they really have complete power to try the case issue subpoenas do whatever the only thing they can't do is lock anybody up they can make findings with respect to contempt but it has to go to a judge to confirm and to actually lock somebody up and I don't believe they can issue a warrant Seether I think a judge has to do that although I may be wrong about that at this point but did that change you know yeah I don't think I only thought a judge could yeah I think it's only only a judge a referee naw love this is a function of too many cases not enough judges so the court system kind of comes up with other types of judicial personnel to try cases to move cases through the through the courthouse so that's what a support magistrate is limited to support litigation and it's varieties of same referees our court attorney referees who are straight-up referees under Cpl our article 41 I think it is there's two kinds of referees one is to hear and report which means they can try the case and make a decision and subject to confirmation or rejection by the judge and one is to hear and decide which means there the judge at that point and but whether you have one of the other depends upon you because you have to agree to have a referee involved in your case and they may pretend otherwise in family court but that's really the law and you can agree that they'll hear report or hear and decide just as a follow up to that because I know that many of us have come across judges who may be busy and can't hear a trial when when it is time to try a case and they'll refer the case to a court attorney referee and/or a special part who will hear those trials more expeditiously than than the judge what's the downside of that happening because as a practitioner I know I worry about well this judge that I was before for a year knows the facts knows the parties knows the issues what's gonna happen now that it's going to a completely different person to here well actually may be good you don't may not like the judge your client I'm getting back to my off hand comment about forum shopping this is just variety of form shopping so I whenever I get a new case as and whenever I've gotten a new case as an attorney I I do as much as I can to find out about the attorneys on the other side and who the judges are I look him up on Westlaw I put him through some of these sites where virtually whoever ones won the case thinks the judge is great in whoever law says the judge a complete you know but but it's worth looking at some information there ask colleagues whether they've dealt with this charge and try it in to the extent that you can maneuver a case to somebody else because you can't stand the judge or vice versa you you do it I know so it would certainly be a bad thing I mean I don't think so I think the referees are good I mean some of the referees in my opinion is better than some of the judges I mean I it's just that they're not judges do they have the same training or offered the same training as judges no they don't go to the judicial programs but certainly you know they come to Family Court with background and knowledge and you know and some referees recently one of the referees in New York County became a judge just one other last question about courtroom etiquette and procedure I know that a lot of us and we're handling cost and visitation cases come across court-ordered investigations those reports are accessible but how are they disseminated by the court by the judge it's strictly up to the it's up to the judge the you know is the attorney over here said why do judges have different procedures well this isn't one of those different procedures so if you go to go into the idv part in Brooklyn if there's a report from ACS the they'll give it to you right at the outset when you sign in because they have that procedure sometimes in family court the court officers will just hand it out I mean the judge will say make sure everybody gets a copy of this here you go and the court officer will give it to you some some judges want to pass it out after the case is called and give it to you then it's just judge specific but know it no problem asking the court officer or the parts division clerk how do I get a copy of the COI and they'll tell you in that part and similarly in terms of handing up information let's say you have an affidavit of service and you need to hand it up quote-unquote to whom do you hand it that's a good question okay.i to make sure that the judge actually gets it you have to assume that the judge some judges are more interested in that than others but if wanna make sure the judge gets it I would hand it up in the courtroom when the cases case is called otherwise you could file it ahead of time and make sure you know I would say anything you file in Family Court make sure you have a copy that the clerk can stamp to it as proof that you actually filed the thing because it's not unknown that stuff gets lost in the Family Court give them given the caseloads and you know how busy it is and I just wanted to follow up from her Justice's perspective a lot of these questions about the differences among the judges those are the kinds of questions that our mentors will answer and I'm sure mentors from other legal services organizations do the same so it's a perfectly good question if you're a volunteer attorney to ask the person who's helping you on a case not just questions about the law but actually about what the judge you're in front of is going to be expecting because it does vary by judge do we have any questions at this time because I think we'll be moving into talking a little bit about the attorney for the child yes special considerations when one of the litigants is pro se either for the attorney for the other side or for the judge well I would say you know so many people do appear pro se in family court so it's it's much more common for that to happen but I would say in virtually any court and I've seen pro se litigants everywhere from housing court family court up to the Second Circuit no no judge likes to deal with a pro se litigant because they don't know what they're dealing with they may not know what they're dealing with the lawyer but at least it's a lawyer you know so a lot of their you know you know it sound like Forrest Gump but you don't know what you got you know they're so so then they're certainly not gonna take a litigant back into the back for these conferences everything's probably gonna be done on the record it tends to slow things down although you know I did a lot of things with pro se litigants people who often would waive counsel and family defense proceedings and I'd take testimony and decide the case yeah so but but if the case we'll be will be dealt with differently by the judge for sure so just moving on to the attorney for the child we talked about different players in the courtroom attorney for the child is a very significant player as we all know in in a custody and visitation case or in a family offense case for that matter how and I know that as attorneys we have special you know ethical rules that we have to abide by are there any special ethical rules that apply to the attorney for the child okay if you want to know about attorneys for the child you should look at the court rules and which you may be aware of already of course but look at 22 NYC our our section 7.2 and these are this is a rule under the broader caption of law guardians which is what they used to be called but this rule says the function of the attorney for the child and the rule among other things says that the attorney for the child is subject to the ethical requirements applicable to all lawyers including but not limited to constraints on ex parte communication disclosure of client confidence is an attorney work product conflicts of interest and becoming a witness in the litigation so the attorney for the child is just like any other attorney in that regard okay great and I know that there are different views about the attorney for the child and the role that that attorney plays in the case with respect to gathering information and really being almost someone that the court really relies upon for it for their opinion how do you view the attorney for the child in a custody and visitation case well you know I go back far enough that there was some substantial ambiguity as to what the role was of the law guarding when I started practicing I mean some law guardian slash attorneys for the child would act like a guardian ad litem meaning they weren't there primarily to represent the child's advanced the child's position they were there more to assess what was the appropriate outcome like a mirror judge of some kind and this all became far more clarified when Judge Judith Kaye the chief judge of the Court of Appeals got involved with this and these rules started to be enacted to provide some clarity look I think that nowadays you'll find certainly in some divorce parts the judges are reluctant for a variety of reasons - or one is readily appoint attorneys for the kids as might happen a family court for a couple reasons one is somebody has to pay for it if they have any resources at all but secondly attorneys for the child now under this rule I just recited another section says that you're supposed to advance and advocate the child stated position even if you think it's contrary to the child's best interest well you can exercise independent judgment if if you as an attorney for the child you come to the conclusion that the child lacks the capacity for knowing voluntary and considered judgment or that following the child's wishes is likely to result in a substantial risk of imminent serious harm to the child and and if you decide that you're not going to advocate what the child wants to do under this rule you're permitted to advocate otherwise but you still have to let the judge know what did you what the kid's position is well all right all this being the case it's not necessarily helpful to the judge as a fact-finder simply to have an advocate there I mean there there's the it's more like they're on an even footing with the parents at that point of the simply advocating positions it doesn't really necessarily help me reach a disposition that I think is best for this kid in these circumstances now nobody knows you know it's children come from the age of just pushed out of Mom's womb to age 18 once they become 18 legally there's no more custody or visitation even though you get to pay for them until they're 21 in the child support order so nobody knows when so if you do if you're representing an infant obviously the attorney is just going to advocate what they think is best for this child if you're dealing with a 16 year old that 16 year old has a right to counsel and to have his or her position advocated even if it's half-baked you know where it tips the tipping point nobody knows you know nine ten I don't know and legal aid says eight but nobody nobody knows it might depends on the child I think and how strong is the court's reliance on the recommendation made by the attorney for the child well if I know they're simply advocating a position that isn't necessarily what is in the best interests of the child I'm not going to pay as much attention to it as you might think okay and is there a point where you would reject the the court attorneys recommendation I mean the the attorney for the child's recommendation at some point and what are the under what circumstance well if I was if I look my kid used to come home and want candy for dinner I mean she's now Natalie I know she's for dinner anymore but but but but she wanted chocolate I don't give I didn't give her chocolate for dinner because she wanted it so my job is to sort out what I think is best regardless of what the parents are yelling at me telling me to do what the child essentially is yelling at me and telling me to do you know I have to sort out I'm supposed to be the mature adult in the room you know make the wise intelligent decision it's best that I can so I'm perfectly prepared to reject everybody's position doesn't have equal opportunity yeah I'm gonna do what I think is best so if in in custody and visitation cases specifically if for a month under what factual circumstances would you agree to no visitation at all for either one of the parties so you have one parent who's saying something another child a child who's saying something else another parent who's giving a different version of the story under what circumstances or state of facts would you say no visitation well it's so enormous ly complicated I mean children can be saying they don't want visitation for a variety reasons that you know it's got really nothing to do with their safety but I mean the law is that if if the parent presents a severe imminent risk of physical or emotional harm of some kind even even if the visitation is supervised then in those circumstances you have the discretion to disallow visitation always in my opinion at least always with a plan as to how we're going to get past that and resume visitation what needs to be done to get this going it's certainly not an except to me and I think to most virtually every judge not an acceptable disposition not to have any visitation at all although sometimes in practice that that that happens now where you draw the line is judged specific you know what might get some judge to say I'm not going to order visitation right now it's not where another judge would would would come to the same conclusion just up to the judge and under under those types of in in those types of difficult cases is the court more likely than not going to appoint a forensic evaluator in those types of cases or is there more of a reluctance to do so entirely judge specific I tell you that as an attorney I didn't like forensic assessments because I thought I was losing control of the case and I wasn't sure I like the forensic expert you know variety reasons as a judge I only appointed people that I that I knew were really competent because a bad forensic expert can really screw up the case for a long period of time so you know the hardest would have input that there would be a group of people who I thought were confident that they could choose from but as a judge I thought they were really helpful now you order forensic assessments where there's either some significant psychopathology going on in the family somebody's you know has some some issues or maybe more than one person or every you can't say everybody is is mentally ill for sure but you want some idea as to what the dynamics are what's going on so I I like them a lot I don't think I ever tried a serious custody case without a forensic expert having conducted an assessment okay great but many of the judges feel otherwise so it's very very judged Pacific okay and can you describe a bit under what circumstances discovery would be allowed in custody and visitation cases which is often not done downstate and more so or New York State yes better listening in right well in fact there is is some discovery I mean to the extent that the judge orders a forensic assessment that's a form of discovery I would say but but look bottom line is it's even upstate it's a special proceeding and a might and the rules in the CPL are governing special proceedings article 4 of the CPL are say that with the exception of a notice to admit there's no discovery except by leave of court so if there actually is a need maybe a deposition of a non-party parties might agree that in lieu of coming to court the transcript to be admissible I mean that kind of thing you make a motion if you think that it's something legitimate fine but I can tell you that you're not going to depose the parties at least downstate I don't think that Court would judge would readily do that but if there's some other type of discover you think is appropriate document discovery from a non party that kind of thing move for it I mean I I would say that the some judges view the discovery process is is kind of a negative that it slows the process down it's just lawyers being lawyers I have a different point of view I think the discovery is is is valuable and the more of it the better frankly it doesn't mean I'm gonna authorize depositions of everybody but you know I've got you know an open mind but here again judges have different points of view which are all legitimate from a practical perspective I think that you know going through that discovery phase would help settle a case as well in a upon the facts that do come out so I think I think it's a valid point to say that discovery is important in those types of cases if if there the parties do come to a settlement is there at any point where under what circumstances would a court reject a stipulation of you know regarding custody and visitation between the parties again it's judge specific some judges if they know the they won't say this but if they know the attorneys and trust the attorneys will you know probably sign off on virtually not maybe not everything but virtually any settlement that's proposed that looks reasonable on its face but there are judges in New York City and upstate that that you know get much more involved and are not willing to add their name to a consent order a consent judgment that they don't like so they're going to say they don't like this and the other thing and it's got to go back and negotiate it okay and what about what what if domestic violence was was was a key factor in one of the custody and visitation cases that you were hearing and the stipulation of settlement regarding custody and visitation allowed for joint custody or even further joint legal during shared custody I mean would that be a factor that would play into possibly or potentially undoing a settlement yeah I would say absolutely I mean ultimately the judge you asking a judge to sign on to a consent custody order that that and the child has to be safe and has to be good for the child so if there's something that extreme that you feel hasn't been addressed yes I can definitely see a judge saying look I'm not signing off on this you know you could drop the case go to another court but whatever you do I'm not signing off on it you know and then there could be more discussion as to what the judge might sign off on and if testimony is heard during a trial about domestic violence would the court why do courts I mean we've seen it as practitioners courts are are just still willing to order joint custody even after hearing that there is some domestic violence in encases what is your position about that well look use one is a mechanical position one is that under 242 the domestic relations law your if the claim is raised you're obligated to try it make factual findings and assess how it's impacting on the child's best interest now the last part is where you get different perspectives I mean it's judge's treat different factual scenarios differently so I mean my own opinion is that to the extent that there is a finding that domestic violence occurred that that's a significant factor in assessing parental fitness you know that somebody would employ this as some method of resolving disputes or otherwise or it's just angry you know is is a serious issue with visa vie parental fitness I know that we are close to time and I just want to open up the floor to see if there were any questions from the audience at this point regarding custody and visitation cases or the attorney for the child and online if folks have questions please do send them in we're for the child under what circumstances will the Corps consider appointing a lawyer for the child when in order protection case as a constituency visitation case regarding appointment of lawyers for the children when would the court consider appointing a lawyer for the child in a custody visitation case as opposed to an order of protection case well of course it's discretionary I mean I I think I've heard of it happening sometimes you know I think it's judge specific but the the judge might want to know if there's a companion custody case is going to be filed or has been filed and there's already a custody position and I could see it happening if you're interested in having that you should ask the judge but the judge will have a point of view right away as to whether he or she is going to do it you mentioned idv part a bit earlier just one question about that how are the cases heard in ID V for those that may not be familiar or or consistent practitioners in in the integrated domestic violence part our all cases heard simultaneously is the criminal court case heard first can you speak a little bit about that well of course I never sat there but I've certainly have appeared there as an attorney and here again it's judge specific but my experience is at least in New York City that the cases will all be held together because eventually the assumption is it'll be settled on some basis so the the the criminal aspect of it will just be carried along and the people will appear and the there may be a misdemeanors are greater you know cases they're tribal by jury but the they'll be held in as they were filed until the settlement is made or if you have to try it typically a nameís to me to be reduced to a B so it can be a bench trial and it'll it'll go forward not all you can't try I don't you know my experience is that you're not gonna try them simultaneously that's for sure because the different burdens of proof and it just can't do it so at that point they they may be dealt with separately but until a bitter end through the settlor try they're going to be held together in a family offense trial what do you feel is the best type of evidence is it just your clients test is the the petitioners testimony is that something more due to like hearing from witnesses oh yeah the more witnesses the better I mean look it certainly is certainly sufficient evidence if they justify I mean if there's no other evidence except the petitioner testifies as to the allegations in the petition that'll survive a motion to dismiss even if you don't believe what they're really saying I'm it's prima facie sufficient but eyewitnesses absolutely you try to bring that we know it's difficult people get a subpoena and they throw it in the garbage and you know I mean you have to make some judgment as to as to what you're going to try to do but if there are eyewitnesses or cops you know get the judge to so order some subpoenas for some of these people that are that really know something about what happened okay great before we get into a few questions about child support and that's where we're gonna be probably asking you to put on your practitioner had to talk about some issues that deal with financial support are there any other questions either online or in the audience about custody visitation or the attorney for the child at this point yes in the back I have a question about attorneys for the child up and when we file guardianship cases in Family Court in particularly upstate even though we as the attorneys for the children filed the case we've encountered that a family court judge will appoint a second attorney to as the attorney for the child and I'm just curious what your thoughts are on that practice and when that's appropriate this is a question from an immigration attorney who's talking about appearing outside of New York City as the attorney for the child and oftentimes the judge will then appoint another attorney for the child and that proceeding do you have an opinion about that practice I don't I'm sorry I don't understand you were already the attorney for the child the child so the clarification with an upstate if you're the only panel attorneys represent children apparently in upstate family courts and so if you're not a panel attorney even if you're bringing a case on behalf of a child they will appoint a panel attorney for the child as well I mean you can try to argue as you see you're suggesting it may not be necessary how do you avoid that I mean in my practice it's been even when that's happened I'm doing all the work and the other yes so certainly that's important for your client you know you're just showing up and helping the other attorney I mean that's that's certainly valuable but you know understand that if you step back from family court in any County in the state I mean the Upstate counties may have more cases per judge than then in some of the New York City counties believe it or not so everybody's overworked overburdened and since everybody's overworked overwhelmed overburden there are systems to guide the cases through the through the courthouse and you're just getting mixed up in one of those systems that's what they're going to do is now what you can do to prevent it except try to talk them out of it say it's unnecessary upstate you can say look it's costing everybody a lot of money you know let's save some funds here it's not necessary Josh might respond to that judges are elected upstate judge we have a question from online what is the best way to lay a foundation for evidence from another court for example a transcript from a criminal court sentencing hearing in which a party and family court makes statements contrary to the position being asserted in the family court that's a complicated question but okay I mean to the extent that you have documents from another court that you want to put into evidence get certified copies and if they're relevant the judge will their cell phone to ke ting on that basis and the judge should accept them now if you're asking part of the question was how to use it to demonstrate prior inconsistent statements actually what is the best way to lay a foundation for evidence from another well okay if you just want to offer it into evidence as evidence in chief I would get it all certified and judge judge has to take it on that basis if if I mean there's a whole process that you go through to if you're dealing with a prior inconsistent statement and you have to them of what they said set it up and ask them if they remember being a deposition we asked the following question gave the following answer yes then and then you know didn't you say this and the other thing and then if it's a prior inconsistent statement it should be received limited to the issue of credibility of the witness not as evidence in chief best things just get the things certified if you want to put in evidence thank you I just wanted to ask about in-camera interviews with children do you have a position on when that is there is an appropriate in an or a custody and visitation case well certainly they have to be old enough to articulate some something I mean you know where that is I don't know it's discretionary with the judge the process the ability to interview children goes way back to a time before which forensic assessment played such a more prominent role in deciding custody litigation the theory as I understand it is that the judge was the wise compassionate you know parent who was going to interview the child and find out what's going on it was a case the case authorizing this process is Lincoln versus Lincoln decided by the Court of Appeals I think in the 60s I never thought I was I was certainly never trained to interview children by anybody and I'll hold a degree in social work or psychology I thought it was difficult and I always had trouble trying to sort out why I thought kids were saying what they were saying but and and there's some law that says you don't have to if you think it might be distressing to the child to bring the child in but most of the time it can't hurt and it's judged specific and if I was asked to do it I mean I'd raise the issue and if everybody wanted me to do it I would do it so just one or two questions relating to to financial support in the Family Court because we want to just touch holistically on every poor every area of the family court to the extent that we can so under the new maintenance laws and spouse I actually spousal support laws have you practically speaking have had any any success with that statute has it is it effective well I actually testified for the law revision Commission before the and in between the temporary statute and the permanent statute and I you know they did give up enhanced earning capacity and consideration for which they got the present maintenance statutes and so I think the the idea was that it was probably more beneficial for lower income mainly what spouses then than it was for higher income spouses but yeah I mean I've we've had my firm has had cases in family court where we saw it spousal maintenance and we're successful doing it I mean it's look the more some people would argue that today sent as a formula you're not paying attention to the details of the case but I think formulas are helpful I think the idea that that there is going to be maintenance and here's how long and here's how much is is helpful given the history of typically how women were treated and and got virtually nothing so I think it's positive step great and have you ever had a case where there's been a long history of non-payment by the non-custodial parent where you've you've sought incarceration and and have been successful and asking for incarceration as a remedy yeah look it has to be really egregious for a judge to lock somebody up and I could count on one hand how many times that I actually did lock somebody up for non-support and I think with only one exception before they left the lockup in the courthouse money came from somewhere I don't know where it was from but somebody can now some money and paid off you know the payee so so I don't know so tell me again what was it it's just how long have a history of non-payment got to be a long time and it's got to be really egregious and then you may get a judge to do it the the hearing the examiner the support magistrate is supposed to make the findings judge is supposed to confirm them and lock up the person for up to six months and have you ever seen a support magistrate take into account illegal income for instance drug dealing gambling things like that or where the court has relied upon that income as a source for yes respond I've had experience with that I mean income as income but the the issue is how do you prove it guys a drug dealer you're not gonna prove it except maybe through his admissions I don't know how is the support magistrate dealt with that issue if you were if you were I think they're I think they're uncomfortable because they the proof is usually pretty sketchy you know and they may just say look there's not enough evidence here for me to conclude that this is what the income is knowing full well that there is income or some summers stronger than others if there's no disclosure they can make findings based on need as opposed to the CSS a formula there's a lot of different options so that might be the way to go if you can't prove it if he doesn't honestly disclose what he's got argue that the support order should be based on the children's needs okay I mean are there certain factors that might cause the support magistrate to reject a settlement that's outside of or deviates from the CSS a the child support Standards Act there's my experience is that if you articulate something they're gonna accept it that's my experience at least you know you have to say why you're departing from the you know you see this in marital separation of yours all the time you know they come up with something one would I support magistrate reject that something that you've come up with my experience is that you if you say virtually anything they're going to approve it that's just my experience okay sure yeah I'm paying for this he's paying for that I don't know therefore we've come to the following you know agreement I must I see virtually all the time it's gonna be probably gonna be approved now I could be wrong I mean there are support magistrates that may step in and said this really doesn't pass muster under the statute I'm not going to do it okay are there any questions from the floor regarding child support I know we are very over time but I wanted to take some questions that there were any either through the web or no you

Channel: inMotion training

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Id: UtEDdS2q0yE

Length: 78min 24sec (4704 seconds)

Published: Mon Sep 18 2017