Mediation Blog » Going to Trial

Children’s Involvement in the Legal Process

admin — Tue, 18 Jan 2011 12:00:58 +0000

Although children may be integrally involved in the violence cycle at home, from a legal standpoint, it is extremely unusual for a child to actually be called as a witness in family court. Typically, a family court judge will let you testify about what your child said or did in an abuse situation, even though technically such testimony is considered “hearsay” and is therefore inadmissible. Most family court judges feel that protecting children is a more important goal than excluding hearsay evidence, and will let you testify. Click here for an article on child witnesses.

In the event that a judge decides that your child ought to testify, your child will be appointed his or her own attorney, or a guardian ad litem. The role of these children’s representatives is discussed in Chapter 9. The court may also make special arrangements to protect your children, such as closing the courtroom, or having the child testify in the judge’s chambers rather than in court. Again, such practices are quite rare. Children’s attorneys, guardians ad litem, Family Relations Studies and psychological studies have made the necessity of children’s testimony almost obsolete. Click here for another interesting article.

Even when the “children” are actually adults, the damage that such testimony can do to a family is oftentimes not worth the benefit derived. Asking children to testify, or scaring children into thinking they might have to testify, makes them choose one parent over another, and is potentially damaging for them emotionally. Do not do it.

What if My Child is the One Being Abused?

Violence toward a spouse is often a precursor to direct child abuse. Nearly half of the men who abuse their partners also abuse their children. Children who both witness violence and are abused themselves suffer the most negative long term consequences. These children are at highest risk when the marriage is dissolving, the couple has separated, and the father is committed to continuing to assert control over the lives of his wife and children. Some men, after their initial rage, let go. Others become more enraged as they fear their victims leaving their control. These men are the most dangerous to their children. Older children face the special problem of being assaulted when they try to intervene to protect their mothers and to stop the abuse. Daughters are more likely than sons to become their fathers’ next victims. They may experience physical or sexual abuse.

Compounding this problem, women who are abused are less able to care for their children. Researcher Lenore Walker reports that eight times as many women report using physical discipline on their children while living with their batterer than when living alone or in a non-battering relationship.

Symptoms experienced by abused children are similar to those described above for children who witness their parents’ violence. Their problems at all levels are more severe.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com

Use of Therapists as Witnesses

admin — Wed, 17 Nov 2010 12:00:30 +0000

Asking your therapist to testify in court on your behalf, or to speak to a court-appointed evaluator, can greatly assist you in your case. Your therapist knows you well, and will be able to comment on your concerns about your children’s well-being, your efforts as a parent, and your problem-solving abilities. Judges typically find that therapists who testify on their own client’s behalf, and who do not testify about the other spouse if they have not interviewed him or her first hand, are helpful to the court. Click here for more information.

There are limitations and drawbacks to using a therapist to testify, however: your therapist probably has not met your spouse, and may not have met your children. He or she therefore can only comment on you, and not on someone that he or she has not met.

By calling your therapist to testify, you are waiving your therapist-patient privilege, i.e., the confidentiality of your discussions with your therapist. Prior to calling your therapist to testify on your behalf, everything that you and your therapist discussed was covered by a special doctor-patient privilege, and was confidential. Your therapist cannot be called to testify without your permission, except in a few very limited circumstances.

By calling your therapist to testify for you, you are giving your permission for your spouse or his or her attorney to question your therapist about your diagnosis, relationship, and treatment. Before you ask your therapist to testify for you, decide whether or not you feel comfortable giving up your confidentiality. Sometimes people are surprised by what they learn when their therapist testifies. If your therapist is not experienced in giving testimony, it is easy for him or her to be caught off guard by the opposing lawyer, and to have difficulty explaining to your advantage. Also, many very competent therapists will strongly encourage you to leave them out of the dispute, so that they can be most helpful to you in the ways for which they are best trained, and which is most respectful of the confidentiality of your relationship.

If the court-appointed evaluator wishes to speak to your therapist, you will also lose your confidentiality privilege. Under these circumstances, however, it is usually best to permit your therapist to speak to the evaluator unless there is a compelling reason to preserve the confidentiality of your relationship.

Unless and until you put your own mental health into question, your relationship with your therapist is strictly confidential.

For example, if you are claiming that you need alimony because you are unable to work because of a psychiatric disability, you have put your own mental health into question as part of your divorce case. In addition, most courts have determined that by pursuing a custody matter you have also voluntarily put your mental health into question, and therefore your prior therapeutic records may lose their protected status with respect to confidentiality. This is because your mental health is generally perceived to affect your parenting. Therefore when you make a custody claim, assume your mental health is necessarily involved. Click here for another terrific article.

For more information contact Peace Talks www.peace-talks.com

In the Event of a Trial

admin — Mon, 15 Nov 2010 12:00:02 +0000

As in any trial circumstance, collect material evidence whenever possible so you can offer viewpoints other than your own, which is obviously biased. Daycare providers often have sign in and sign out sheets which reflect which parent dropped off and picked up a child. Doctors’ records, school attendance records, report cards, teacher reports, and receipts are sources of evidence. Journals and diaries can be useful, as well. For example, if you are separated and your wife always gets the children to school late on the days she’s responsible for their transportation, the school attendance records coupled with your visitation schedule can be evidence of her irresponsibility. If the teacher’s notes say that your child never has his homework with him on the days after he’s spent time at his father’s house, then this is evidence that his father isn’t taking his parental responsibilities seriously with respect to school work. Click here for an article about what to expect during a trial.

Think of people who could be witnesses to your activities with your child. If you are your child’s soccer coach, perhaps an assistant coach would be willing to write a letter or testify, if need be. Neighbors, daycare providers, friends, relatives, and everyone else who has seen you be a parent to your child are all possible witnesses. People who have seen you often, and know you as a parent, are the best witnesses. Any one example is not sufficient in itself, but when you have multiple examples that indicate regularity, consistency, and familiarity, witnesses matter. Non-relatives are better than relatives, for obvious reasons, but relatives can serve as witnesses, too.

You will need to be careful in how you approach potential witnesses, as many of them may know both you and your spouse and will be reluctant to get involved. Perhaps those who are reluctant would be willing to vouch for your abilities as a parent, without criticizing your spouse. Those who are familiar with your circumstances, have known you well for a period of years, and who are willing to speak out about inappropriate behavior on your spouse’s part are the best witnesses, but explore the possibility of asking others to come forward to help you as well. A handful of well-selected witnesses is more powerful than a laundry list of mediocre ones. Have your witnesses work with your lawyer about how to describe things accurately and adequately, so that your story is clear and convincing.

Some witnesses may provide a letter to the court supporting your position. An example of a helpful letter is:

I have known Jennifer for 15 years. We are neighbors, and our children play together and go to the same school. I am also acquainted with her husband, Ralph. Last year Jennifer and I served as room mothers for her daughter Betsy’s class. This entailed chaperoning on 3 field trips, assisting with 2 craft projects, and providing refreshments for 3 in-school parties. Jennifer is always willing to help….etc., etc., etc.

I also know Jennifer’s husband, Ralph. Last summer I saw him scream at Ralph Jr. when Ralph Jr. fell off his bicycle. Ralph Jr. began to cry, but Ralph Sr. continued to yell. I was concerned, so I went over……..I saw similar events on four other occasions, which began to make me worry about Ralph Jr..

Judith Neighbor
Address + Telephone Number

Click here for more information on divorce trials.

For more information contact Peace Talks www.peace-talks.com

Operating as a Family after the Trial

admin — Mon, 04 Oct 2010 12:00:31 +0000

After the trial, after listening to all of that testimony, win or lose, you have to continue to operate as a family. You will have to attend your children’s Bar Mitzvahs, First Communions, school plays, soccer games, and even their weddings….a whole lifetime of activities in which your children need both you and your spouse to participate. Maintaining a civil relationship will be very difficult after a contested custody trial. Click here for some advice from Dr. Phil.

In order to consider what you need a trial, you can visit the court and ask the clerk where and when any custody trials will be held. Most cases are open to the public, and you can sit in and watch the proceedings.

Assuming you’ve considered the costs to your children and yourself, examined your own motivations, and still decided it’s best to proceed with a contested custody case, you have a great deal of planning and work to do to assist your chances of success. That planning requires understanding exactly what a contested custody case entails.

Telling Your Children About Why You Are Involved in a Court Battle

You should explain to your child that Mom (or Dad) and you have become very angry at each other, and that you are no longer able to make decisions together right now. The one thing you agree on is that you both want very much to have the child in your life as much as possible from day to day. You know the child can’t be in two places at once, so you are asking the judge to help you make a plan. The court will make the decisions, and Mom and Dad have agreed to abide by them. If the situation includes a mental illness, you might wish to add, if your child is capable of understanding, that Mom/Dad is not well (describe the type of illness) and is not able to make good decisions right now. You have asked the court to help you because the court is neutral and will help find the least detrimental situation for your child. Reassure your child that the decision is not in his or her hands. Click here for another terrific article.

For more information contact Peace Talks www.peace-talks.com

Personal Assessment: Going to Trial

admin — Thu, 08 Apr 2010 12:00:29 +0000

Is a trial really needed to resolve these issues? Is there nothing left to give in on? If so, then I have prepared myself thoroughly by orchestrating the best evidence, and the fullest documentation, in my power. Click here for an article on what to do 100 days before your trial. Have I selected the most appropriate witnesses for my case? Are they people who are interested in helping me or my children because they believe in me, rather than because they are friendly with me? I have found people whose opinions are based on experience with me and/or my spouse, and who do not have an axe of their own to grind.

Am I being as truthful and straightforward as possible? If my spouse is not, how am I dealing with it? I hope I am not becoming consumed with revenge or proving the truth. I am keeping my eye on the big picture, and I am taking steps to end my spouse’s ability to distort facts about me by separating our lives in as civilized way as possible.

Am I being motivated by fear? How is it affecting my behavior, in and out of court? I am taking the time to understand my fears, and to put them into proper perspective. I am acting out of a position of strength, not fear. Click here for an article on overcoming the fears of divorce.

For more information contact Peace Talks www.peace-talks.com

When Fear of Losing Clouds Your Judgment

admin — Mon, 05 Apr 2010 11:00:13 +0000

Marvin recognized that he was being inflammatory. Every time he entered the therapy office with his wife, he would begin by saying, “I don’t want to be here and work on this, I just want to hurt her for her infidelity to me. I want her to pay for all the pain she has caused me. And I know just what to say that will make her crazy when we are close to settling our problems. I know that’s not productive, but I can’t help myself. Why should I make her life any happier? I am afraid she’ll just find someone new and I’ll be stuck with all the heartache.” Click here to read five keys to overcoming fear.

Marvin didn’t realize how much he was losing until the divorce process got too far underway to turn back. Many times during this middle phase of divorce the leaver is struck with how much she or he is losing, having focused previously only on what would be gained by divorce. By the time Marvin’s wife began to reconsider whether or not she wanted the divorce, Marvin had been so hurtful toward her that she no longer considered reconciliation an option. Whether you are the leaver or the left, the amount of loss in divorce becomes tangible – changes in residence, neighborhood, friends, family, economics, routines, traditions, identity (being known as “so and so’s spouse”), dreams, a future that is predictable in some respects. The post divorce realities fill one with a sense of dread, of fears that all humans experience – of being lonely, not having enough money, making decisions without input, dating, being single in a world too often oriented to couples and two parent families.

Couples who go to trial are more likely to experience multiple losses and the fears that accompany them. Yet it is these fears that often underlie the interactions that lead couples down the path toward a legal battle. Mothers fight to have their children stay only in one home during all school days, not only out of concern for the child, but because the house is so quiet without them that it engenders panic about not knowing exactly what her child is doing. They experience the emptiness of missing the bedtime story and the predictable fight to turn out the light. Fathers fight to have more weekend time, even when their children say they need the time with their friends, because the feeling that their parental role has slipped away prevents them from giving in on this point. For these fathers, the last thing they wanted was to be a Dad whose child doesn’t want to be with him, but they can’t find another solution without fear of losing their chance to affect their child’s development in a significant way.

These fears can result in failure to find an arrangement with which everyone can live comfortably. Instead, you stick stubbornly to your ground, making up excuse after excuse not to reach an acceptable resolution. Click here for an entire website about dealing with fear

Be honest with yourself about your fears, write them down, and then face them. Walk through the legal walls you have been hiding behind. Your judgment will suddenly improve, and you’ll recall what it feels like to see the first ray of sun after a summer storm.

For more information contact Peace Talks www.peace-talks.com

Holding Your Ground without Conflict

admin — Mon, 29 Mar 2010 12:00:37 +0000

The fear of losing one’s property or children becomes a central motivator to fight back, the way an animal strikes out blindly when it senses its personal or familial security is threatened. As the conflict increases, each person becomes more certain that they cannot trust the other, and therefore must turn to an outside party to police their interactions. The legal system is brought in for its protective functions. However, this view of the legal system stems from its functions in a criminal situation. In the civil realm, the court has few protections that it can enforce. It may be able to stop spouses from being violent or stealing property from each other. But it is a slow and cumbersome process, and often it does too little too late to be of assistance. The threat of the court’s authority keeps people afraid. They fear that their spouse will somehow prevail, they will succeed in unleashing their wrath legally, and the power of the court will be used to condone it. Click here for some excellent conflict management techniques.

If it is early enough in the conflict, you can stop this cycle by refusing to engage. Don’t fight back. Click here for a great article about walking away from conflict. Hold your ground but do what you can not to inflame your spouse. Make small concessions, and bend over backwards not to fight. It means turning the other cheek and letting the other person have their way, but having the fighting stop will work to your advantage later. If you are already fighting over issues you cannot concede to, like sole custody of your child, then you must use the legal process but be sure to work with an attorney who understands your important bottom lines and what is worth fighting for, rather than an attorney who’s interested in supporting the fight. Sometimes an attorney is well meaning, and encourages you to fight because he or she agrees you have been wronged. Such support does not always work to your advantage, despite the best of intentions. Your attorney should help you decide what not to fight about, as well.

For more information contact Peace Talks www.peace-talks.com

What am I Likely to be Feeling During the Trial?

admin — Wed, 24 Mar 2010 12:00:38 +0000

There are often wild emotional dips and turns pulsating throughout the trial process. Spouses act increasingly outrageous, upping the ante associated with settlement until realistic strategies have been replaced by tantrums, aggressions, and shutting down that looks like the movie The War of the Roses. Both spouses feel the other is a stranger and a caricature of his or her worst qualities. Many times people can barely recognize themselves, let alone their spouse. People will say they want to stop the fighting, yet they can’t get off the wild flight they are on. It seems to pick up speed until they are acting on automatic pilot. There is a commonly described “out-of-body” sensation that goes along with a traumatic experience. It is as if you are outside of your own body and life, watching yourself act and react, yet feeling powerless to control yourself. For some wonderful podcasts about aspects of divorce, click here.

If you are in this position, it helps to look at some of the underlying motivations for such behavior.

My Own Behavior is Dreadful, but I am Afraid Not to Keep Fighting

Jennie entered her therapist’s office and said, “I know I’m being a total wretch, and I can’t stand myself. I look in the mirror sometimes and think, ‘Who are you?’ I know I am fighting about every little thing, making it impossible not to drag this all out in trial. I have been prepping all of our friends and any one I can to take my side, I feel like a politician banging on doors saying ‘vote for me’.” The real problem for Jennie was that she couldn’t trust her husband Ben not to lie and change his story. She was afraid that if she acted civilly he would use it to get more money and more time with the kids, and to leave her with nothing. She knows he’s angry because she initiated the divorce, and she’s not sure how far he’ll go to punish her. Since she also feels guilty about the situation, she feels like she has to defend herself, including justifying all of her actions.

However, Ben was feeling very similarly. The more Jennie acted crazy and furious, the more he thought that if she was willing to get a divorce so suddenly, who knows what else she is capable of? The lack of trust that accompanies many divorces spirals into believing that everything your spouse is doing is aimed to make you mad or hurt. Often the other person sees the same picture very differently. Both spouses are locked into a blaming cycle that escalates using the legal system as the battleground. Click here for an article on how you can trust again after a divorce.

For more information contact Peace Talks www.peace-talks.com

If I Did Something That May Hurt My Case, Should I Lie?

admin — Thu, 18 Mar 2010 12:00:57 +0000

Your credibility is the most important element of your case. Deceit is rampant in divorce cases, and judges have little patience for such behavior. If there is a weak point in your case, meet the problem head on. All people make mistakes, and you can describe an incident as a lapse of judgment under trying conditions. If you are sincere and convincing, it will damage your case less than lying would. For an article about what not to do during your divorce, click here.

The importance of truthfulness holds true when the issue is infidelity within the marriage. It is best to admit to obvious affairs and deal with the problem on the stand to take the punch out of your spouse’s argument about an affair. That’s not to say that complete confession during the negotiation phase is optimal. Certainly, each case is different, but telling the truth to a judge in a straight forward and brief fashion at a trial can be much less damaging than ignoring the scenario and waiting for it to be raised by your spouse’s attorney, or having your spouse parade a series of witnesses of photographs through the court after you have not been truthful about a new relationship.

Bud is an attorney who was on trial for divorce. He had been unhappy in his marriage to Janice for many years but had not had an affair. During the final months before separating, Bud fell in love with Samantha, a co–worker, and became sexually involved with her. He never told Janice about the relationship and his intent to marry his new partner, but he was pretty sure she suspected something since he was unwilling to consider counseling or reconciliation. At the trial, he readily admitted to being involved before Janice could accuse him, discussing his loneliness and the new happiness that Samantha breathed into his life. He depicted the new relationship as unfortunate (because it started before his marriage ended) but loving and positive, and expressed the importance to him that Janice not suffer needlessly for it. Despite the high degree of animosity between the couple, the judge believed Bud’s account and rendered the affair as inconsequential compared to the other issues in the divorce.

Once you’ve admitted the relationship, photographs or Valentine’s cards lose their significance as evidence against you. The judge probably doesn’t care much about them at all. However, if you lied, then the lie becomes a credibility issue that affects your entire case.

If you are tempted to lie at any point during your divorce remember that your spouse may have a photograph or document that proves your statement is untrue. You could then be in the unenviable position of attempting to retract testimony that is undercut by the contents of a document, photograph, videotape, or tape recording. Once a judge decides you’re lying about one issue, all of your testimony becomes suspect. As a consequence, you may be punished in the property settlement or alimony aspects of your case. Click here for an article about perjury in divorce cases.

Lying under oath is perjury. Perjury is a crime. Many judges refer perjury in divorce cases to the prosecutor’s office. Judges may also refer matters involving drugs, false tax returns, or other crimes. If these are issues in your case strongly consider settling with your spouse out of court rather than take the chance of facing criminal prosecution along with your divorce case.

If you are tempted to lie about a situation in your case, you speak with your lawyer in advance so that you can decide together the best way to handle it. No reputable lawyer will permit you to lie or will condone a suggestion to lie on the stand, but will assist you in a legal way to minimize any ill effects that you might experience because of the scenario that presents itself.

For more information contact Peace Talks www.peace-talks.com

Expert Witness and Valuations

admin — Thu, 11 Mar 2010 12:00:29 +0000

If you have had an expert appraise your home, review your income figures, perform a custody evaluation, a business valuation or analyze other types of evidence, but you are unable to reach an agreement on these matters with your spouse, the expert witness may need to be called to testify in court. This testimony will aid the judge in making a decision about the matters in dispute.

The expert must be disclosed to the opposing side, meaning that his or her name, address, business telephone number, as well as a summary his or her conclusions must be provided in advance of the trial. If the expert has prepared a copy of a report, such as an appraisal or written evaluation, that must also be provided. If the opposing sides wishes to depose the expert, he or she may do so. Click here for an article on expert witnesses.

If you need to have an expert testify in court, the expert’s fees are your responsibility unless the court makes orders otherwise. Click here for an article on expert witness’ fees.

What Kinds of Discovery Can be Used at Trial as Evidence?

In addition to documents and live witnesses, you can also use depositions and prior testimony as evidence in trial.

Depositions and Prior Testimony

Depositions are sworn testimony taken under oath prior to a trial or hearing. They were discussed in detail in Chapter 5, and a set of sample deposition questions appears in the appendix. Because the testimony at a deposition is obtained under oath, recorded by a court-authorized professional, and all parties have had an opportunity to be present for testimony, a deposition can later be used in court under certain circumstances:

If you depose a witness who is not available at the time of the trial (i.e., out of state, in the hospital, deceased) the deposition can be entered into evidence in lieu of that person’s testimony

If you depose a witness who testifies in court with answers that are different than those given in the deposition, you can use the deposition in court to show that the witness’ testimony is contradictory. Your goal is to indicate to the court that the witness is either lying in court, or has lied previously under oath.

For more information contact Peace Talks www.peace-talks.com