Talking Points

One reason I coach people and I will read through their court documents, often at no charge, is because I can get a sense of how the court is thinking as a body.  Lawyers, who should be your advocate, sometimes get caught up in looking good for the court.  There are lawyers who absolutely act as your advocate, no matter what, but there are some who, for whatever reason, play politics.  They would rather that the judge like them, rather than be concerned about what their clients think of them.  You really should do your homework when hiring an attorney.  Ask for client references, if possible.  My last lawyer (I had several over the years) truly was my advocate.  We made a great team together.  He told me what we could and could not do.  I did not waste time on non-winnable issues and he told me straight up truths about what was going to happen.  He also fought very hard for me.  I knew that he really did want me to win.

The entire court system is always changing.  Our judiciary latches on to new themes or phrases.  This trickles down to attorneys, whether they know it or not.  When they hear things often enough, they go along to get along.  Good lawyers know the judge on your case and how they think.  My attorney did not know our judge very well and I paid him for half a day to discuss my case and how to present it to the judge because his partner knew the judge very well.  If your attorney has never been before a particular judge before, things can go horribly bad for you.

What do I mean about the courts latching onto themes or phrases?  There are groups out there, domestic abuse groups, father’s rights groups, etc., who advocate the court system and legislature for change.  When the groups contain large numbers of people or start to speak very loudly, the judiciary listens.  The unfortunate thing about this is that there are laws in family court, but there is also judicial discretion and the entire judiciary can decide that they are going to use their discretion, rather than follow the laws.  Is this wrong?  I think so, but I have yet to figure out how to fight it.  These groups are impatient.  They do not want to wait years to achieve their goals.  Changing laws can take years and when you send a bill to the legislature, you cannot know how that bill will come out when it is changed and voted on as law.  Our legislature can change a bill from what it was intended to do, to something all together different.

Because laws can take a long time to get on the books, and because they may not come out as originally intended, when judges have been convinced that the court needs to get with the times, they will use their discretion to create law from the bench, meaning that, as a body, they decide what will be their discretion where they can deviate from the law.  They will start by changing how they rule, and allow the law to catch up later.

Some examples of this are the term visitation was changed to parenting time.  They did not think that parents should be considered visitors of their children.  Another example is sole custody.  The courts have decided that both parents are equal and have equal rights to their children, no matter where the child lives.  Many people have left court with sole physical custody with joint legal, thinking that it meant they would have more say about their child, only to find out that the joint legal gives the other parent as much say about where the child goes to school or the doctor, etc.  I know many moms who worked out parenting time schedules when their child was an infant and found out just how important joint legal is when it came time for the child to start school.  They assumed that because the child lived with them that they would attend school in the district they lived in.  They found out that Dad had other ideas and a court battle began.

What you will find in family court is that your thinking is wrong.  It is based on what little you know about divorce from someone who divorced years ago.  Things are much different now.  Your lawyer most likely will tell you your chances of winning your motion and they will try to convince you of the court talking points.  If they tell you that you cannot do something, ask them to explain why or why not.  If they cannot explain something to you to your satisfaction, you may want to find a lawyer who will.  However, if your lawyer tells you that your judge thinks a certain way, you have to trust them on this.  While I am not saying it is right, the reality is that if your lawyer tells you a judge leans a certain way, even though the law reads differently, you should really consider if you want to do the battle with this judge, because often times, losing in court can cause ongoing difficulties and out you deeper into a system that can be unpredictable.  So many people come in confident about the law on their side, and often times it is on your side, but the problem occurs when the judge is not on your side.

If you can get a sense of the current family law talking points, you may be able to get ahead of it and keep yourself from being on the losing end.  Some battles are worth fighting and some are not.

Image courtesy of Grant cochrane /

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