The Family Court Process
May 4, 2021
No one wants to have to go to Court to have to obtain what is felt to be a natural right - the right to be a parent. The right to make decisions regarding their children. The right to take their children to the Doctor, attend school functions, extra-curricular activities, spend quality and quantity of time with them. In my 26 years of practice in the Family Law arena, there has come to be a common theme in the past decade or so. One parent acts as if they own the child or children and that parent is "allowing" the other parent time, as if it were some sort of a gift or something. Or, perhaps, a parent appears to act this way because they are trying hard to protect the children from possible harm it is believed could come to the children due to things that have happened while the children were in the other parent's care.
This is to explain how Family Court works and why it can take so long. A Petition must be filed to get a case started in Court. Paternity is the easiest. There is a first appearance, a DNA test is ordered and the matter is adjourned for the results. With DNA tests being so accurate these days, the results are typically 0% likelihood of paternity and the Petition is dismissed or 99.99% likelihood of paternity and the parties consent to an "Order of Filiation". If the parties do not consent, there is a very short hearing held right then, the DNA test results are admitted into evidence, and that makes the decision for the Judge or Magistrate easy. An Order of Dismissal or Filiation is rendered based upon the results of the test.
The following applies to the rest of Family Law proceedings, although Child Support is typically less lengthy as it is more about income and numbers. The first time you appear is only considered a "first appearance". Does anyone need/want an Attorney? If you can't afford one, you are NOT entitled to an Assigned Attorney (where the County pays for it) in Paternity establishment or in Child Support Proceedings (unless you are accused of not paying support - a Violation Petition - and risk jail time). In Custody and Visitation proceedings, YOU CAN be entitled to a Court-appointed Attorney if you have a low income. You are always entitled to hire your own Attorney in all of these proceedings and are allowed the time to do so unless you have asked for repeated adjournments to obtain an Attorney and the Court feels you have had enough time to hire one. An Attorney will also be appointed to represent your child or children.
*Please note that years ago, there were "Law Guardians". These were Attorneys who would interview Mom, Dad, any other caretakers, visit the home, perhaps consult with principals, teachers, other family members and then they would make a report to the Court as to what they thought was in the children's best interests. The Court often adopted the Law Guardian's recommendations. When I became a children's Attorney over a decade ago, the law had changed. Now we are called "Attorneys For the Children" (AFCs). An AFC is your child or children's Attorney only and represents them just like your Attorney represents you. If the child is very young and cannot speak or make reasonable decisions/requests for themselves, the AFC can substitute their judgment for your child's. Substituted Judgment can only be used otherwise if there is a substantial risk of serious, imminent harm to the child. Otherwise, the AFC must tell the Court what your child is seeking in the matter.
**Please also note that I have had extensive experience in representing Mothers, Fathers and Children. I am not just an AFC.
The only instance in which the case ends at the first appearance is if the parties are in agreement, do not wish to have Attorneys, or they are already present with them, and the issue is simply to have what the parties want to be put in a Court Order. Otherwise, the matter is adjourned to another date and time for the parties to obtain Attorneys, consult with them or if no Attorneys are requested, to see if the parties can solve the issues between them for the next Court appearance.
At the next Court appearance, the Judge looks to see if the parties have been able to come to an agreement on the issues and had time to consult with or obtain their own Attorneys. If not, and there is some other issue or issues that have come about of law or fact, there can be an adjournment of that Court date. The following Court date is to see if the parties have resolved come to any agreement and/or to see if the previous issues have been resolved. If not, the case will be put on for another date. This is generally a Pre-Trial appearance - another appearance to see if the matter has been resolved and/or if there can be an agreement as to any of the facts or issues to narrow down what needs to be resolved at a trial. At this appearance, a Trial date is usually set.
If at any of the above mentioned-appearances the parties have come to an agreement, it is put on the record, there is a Court order and there is no need for further appearances. If no agreements, all of these adjournments and putting a trial date on the calendar can take many months. Judges' calendars are very backlogged because so many people file into Court regarding issues with their children due to the inability to communicate with each other and therefore there are many, many cases for Judges to hear. If there is an eventual trial on the matter, Judges can have their Courts only available for trial dates sometimes 6 months down the road. Please be prepared for this. The trial itself, if not resolved or finished in one day can be put off for another couple of weeks or months for sometimes 2 - 6 days of trial. The Court must coordinate its schedule with that of both parties' Attorneys and the AFC's. This is not easy.
A final bit about how the process works: There can be adjournments in between all of the above-mentioned Court dates if the Judge or an Attorney ends up with a conflict with 2 cases at the same date and time or other conflicting circumstances.
Please feel free to ask any questions regarding the above.