Family Law in a Libertarian World

Introduction Part I

WILD WILD WEST

Family law is often referred to as the “wild west” where rules don’t seem to apply and this time the dads are tied up on a runaway locomotive hijacked by a rogue judge.

The truth is, this perception is right and yet completely wrong. As a family law attorney in California and a libertarian, I wanted to try and unravel some of the misnomers about family law. You can check out some of my comments on my podcast with episode #60 below.

When I got more deeply involved in libertarian circles I started to have discussions about how fathers were treated unfairly and their rights weren’t being protected and I started to wonder what could be done from a libertarian perspective to fix this obviously broken system. Yet my own experience in this judicial meat-grinder didn’t quite jive with all the criticism. In fact, I work in the courthouse featured in the documentary Divorce Corp.

My problems with the Divorce Corp documentary are many because each case has two sides and this film doesn’t present them. When I take on a new client I’ve learned to avoid jumping to legal conclusions until I’ve read the entire file, all the rulings, pleadings and transcripts. Often, the new client misrepresents what took place or misunderstood fully what was going on in the courtroom. With this in mind, you can still make a difference in your case even if the system is against you.

COURTS of EQUITY & LAW

The verbiage “wild west” also gives a feeling that family law is not based on rules, laws or statutes. But this is wrong as well. Courts are divided between courts of equity and courts of law. Family Law is technically a court of equity but is really a mix where a judge must follow the law and other situations where they have discretion to make decisions based on what they deem is equitable or “fair.” This gives the sense that anything goes, and sometimes it does. However, often a judge makes multiple rulings in a single hearing where one order is based strictly on the law and the other ruling on equity. This can give the sense of the party believing the judge has it out for them when really the judge is making a technical legal ruling when the party believes it’s based on “fairness.” If you know the differences for your situation, it can drastically help you prepare and also live with the outcome.

The system needs a complete overhaul, I understand that. But until we get a massive change, it’s probably best to understand what you can do to make the best of the situation you’ve found yourself. Since the state is now involved in your family relationship, you need to minimize the burden it can impose and lessen the degree to which it can control or ruin your life.

JURISDICTIONS

It should be noted that each state is different and therefore your personal experience will vary accordingly. Oddly, the more “blue” a state is, the better they seem to be for father’s rights. California for example, starts out with the assumption that parents should each have a 50/50 custody percentage and then move off of that arrangement based on the situations of each parent, the child’s best interests, age etc. Therefore, most men get an equal shot at custody when the case starts. This is not the case for many other states where it’s presumed the mom has a bond with the child and therefore the father is in an upward battle to get on equal footing.

No matter where you live, the best you can do for yourself and your child is to become familiar with the local rules, judges and know the issues before you file. If you can afford an attorney, I suggest you do your research and find one that is familiar with the court you will be in.

For me, I mostly work in four (4) different counties and almost never venture outside of them. The smaller the county, the more vital it is that you can get a local attorney who knows the judges, the clerk, bailiff, the procedures and the local rules. The local rules can be the hurdle you need to get over or a shield to hold off the other party from getting the upper hand on you.

For example, one county I work in issues a “tentative ruling” the day before your court date. They release the ruling at 2pm and you have until 4pm to notify the other party, by phone, to request oral arguments the next day. The message must be in person or by phone (not email) and it must be explicit about the place, time and issue you want to make arguments on. If you don’t request oral arguments in the 2 hr window and as described herein, the judge won’t even hear you the next day and the tentative ruling will be the Court Order.

If you are playing in the world of family law, the results can be severe and you had better know the rules to the game. When I get a potential client for a county I don’t work in, I always tell them to first look for a local attorney and then come to me if they can’t find one. I am very good in the counties I frequent and other attorneys should be more adept in the counties they frequent as well. Knowing a judge and how they tend to rule can also make or break your case.

WHAT ARE THE ISSUES?

In most jurisdictions, you file a petition to start the case and then nothing happens until YOU or the other party make a request to the court. This is called a “motion” and requires the moving party to indicate what you want the court to make a ruling on. The issues can be almost anything pertaining to your case, but they have to be outlined and described in detail. The moving party must serve the other party within a specific time frame before the hearing with their motion showing the date and time and location of the hearing.

When you go into court, the judge will only hear arguments on the issues raised in the moving party’s papers. Therefore, make sure you are prepared for the issues they raised and for the most part, only those issues. Don’t get bogged down by making arguments not raised and having the judge think you can’t focus. Or worse, get into an argument with the judge about these issues he/she literally can’t make rulings on at this time.

The internet has answers to everything, so look up the issues raised and find out what attorney’s are saying about it online.

STANDARDS OF PROOF

Many legal issues are broken down into “elements” which are basically a list of check-boxes that need to be full-filled before the judge will rule one way or another. In addition, there are many legal standards in play depending on what type of case you are involved in. Criminal has “beyond a reasonable doubt” while civil has a mix of "Preponderance of the Evidence” and “clear and convincing evidence.”

“Beyond a Reasonable Doubt” standard is used in criminal cases and not a part of family law.

Preponderance of the evidence is met if the trier of fact (judge or jury) believes the evidence shows the defendant is more likely than not—more than 50% likely to be—responsible.

Whereas, "Clear and convincing" means the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984).

Family law is considered “civil law” and therefore some of the issues will be under the preponderance standard and some under the clear and convincing standard. Know which one applies to your specific issue, prepare and proceed accordingly.

WHAT SHOULD YOU DO?

I’m not your attorney, so this isn’t legal advice, but I think the recommendations that follow should help you in your case.

The biggest problems I encounter with my male clients is not preparing for litigation as soon as they might have a suspicion it could be coming. Most men are in the mode of working hard, earning money for their family and not really making a concerted effort to know the schedule and daily activity of their kids - in detail. This isn’t a knock, it’s just the reality and the way we are wired. When dad and mom are together, they usually have distinct roles and mom usually is the one more focused on the kids day-to-day activities with down to the minute knowledge of their day.

Therefore, when you separate and are heading to court, make sure you can articulate your kids daily, weekly and monthly schedule. I’ve had dad’s come in saying they want 50/50 custody while working out of town most of the month. This just isn’t possible. Further, if you expect a judge to think the dad can take care of his kid’s on a daily basis but doesn’t know their schedule or their mom’s, then you aren’t getting very far.

Have a game plan, think about what you can do, what your kids need and what the other parent’s schedule is and work something out that has everyone in mind. It will serve you well. One of the best things I did in my own life was to put all the kids activities in my phone calendar and make sure it’s up to date. Little details like this can go a long way.

Preparation For Litigation

Part of knowing what to do is realizing early on that you might be in court and preparing for it accordingly. This means knowing that all communication with the other party, your social media and with friends/family could be used against you in court. Therefore, make sure you don’t let your emotions get out of control by saying or writing something you’ll regret in court later. This also means, keep all that information from the other party yourself. Take screen shots of texts, keep emails and letters, all for the purpose of protecting yourself in court.

At some point you might need counsel to help you get these documents into court under the rules of evidence, but for mediation and initial motions most jurisdictions allow these documents in. If you are paying the other party money, do it in a way that can be tracked rather than with cash. It’s not great to pay the other party as required, in cash, and then have them claim you didn’t, in court.

Since so much of family law is “he said, she said”, you’ll win the day when you have documented evidence supporting your claims.

DON’T BE A VICTIM

While this is great advice for everyone everyday, it’s especially poignant if you’ve made mistakes in the past or the baby-mama has a new man (for example). Unless you have concrete evidence the new boyfriend is dangerous to the kids, you’re better served by ignoring him altogether in court and focusing on the best interests of the kids. A judge doesn’t want to hear about how the kids mom cheated on you, unless if cheating on you involved a drug cartel in her bedroom while the kids were present. If you’ve made a mistake that is undeniable in court, own up to it, indicate how you’ve learned from it and move on. While it might be used against you temporarily, fighting it will often set you back longer than just dealing and moving on. I’ve also had judges reward a parent for taking ownership rather than making excuses.

Not being a victim also means don’t act like an ass in court. Take the situation seriously and expect to have the opposing party say some pretty nasty things about you in court. The key is to not react. Don’t shake your head, roll your eyes, mockingly laugh, interrupt or disrespect the judge. The judge, opposing party or counsel, might be the worst person on the planet but since the judge will be making the decisions in your case, don’t cross them.

I have crossed the line with a judge on occasion (I once told a judge his statement about my client was hyperbolic), but it’s usually calculated and done in a way to make sure my client is defended yet without having the judge take their ire out on the client and instead focus on me. Your attorney is less invested in the case emotionally and so their arguments should be more reasoned. I’ve seen where a client or opposing party is so emotional they can’t properly make their case, and this doesn’t serve them well.

The key here is, try to remove the emotion by being prepared for the worst and treat the hearing like it’s business and you are making arguments at work before your boss rather than your jilted ex-lover. If you can’t do that, then you really do need an attorney.

NEVER… PROMISE… CRAZY A BABY

It might be too late for this advice regarding the child(ren) you are in court over currently, but you can still learn from your mistakes. The key is to not compound mistakes or difficulties going forward by being with someone batshit crazy. If you aren’t in court currently and don’t have kids, now is your chance to get your shit together and make sure you don’t slam it with a certifiable wank. Three minutes of fun can end up with 18 years of hell.

OUT OF COURT AGREEMENTS

Even though you involved the state in your relationship, you can still make agreements without going to court. I’ve found almost all judges appreciate when parties come to court with an agreement and don’t have to argue. In fact, you know the situation best and therefore its always prudent if you make decisions that work best for you rather than having a stranger (judge) rule on your behalf.

It’s legal and encouraged for the parties to try and work out an agreement out of court so if you can still communicate, do it.

If you have a restraining order, against you or against the other party, don’t communicate at all.

However, if you do make an agreement, get it in writing and get it entered as a court order. An email or text agreement will usually hold up in court, but its always best to have the agreement memorialized as a court order. You can draft the agreement, both sign it (get it notarized) and have it entered with a small fee (California only charges $20).

I will continue writing on the subject of family law and what changes need to be made to the system, so keep checking back for more. But until these changes are made, you’ll need to navigate the courts and following some of the recommendations above might help.