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Author Topic: Procedural for Pro Se  (Read 1322 times)

Windd

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Procedural for Pro Se
« on: Apr 05, 2006, 10:41:27 AM »
Father(CP) retained counsel for contempt charges(about 30 accumulative ) and motion to modify.

Mother(pro-se) filed motion for mediation for issues that are cannot be addressed via mediation and need  a judge to be dealt with i.e. reduction is support, changing schools. Mother filed motion and had a hearing date in 6 days.

Father had retained attorney a few weeks prior and faxed attorney copy of motion 4-days prior to hearing. Attorney asked judge for time to respond. Nothing else father has retained counsel for has been initiated. This concerns me.

Father is thinking of going pro-se as already $800.00 for review of information, calls and appearance to ask for time to respond and status 30 days out.

If father goes pro se he will ask for motion for mediation to be stricken as issues need to be addressed by someone who has the authority to bind and hold in contempt.

Looking for proper procedure:

1)Can father ask for hearing date for rule to show cause and modification at same time asking for motion to be stricken?

2)Does father need to have motion for rule to shoe cause and modification ready at this time?  What paperwork needs to be filed if a hearing date is set?

At hearing evidence is presented by both parties.

3)Does the judge decide at that point or is it referred for a trial?



socrateaser

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RE: Procedural for Pro Se
« Reply #1 on: Apr 05, 2006, 01:43:21 PM »
>Father(CP) retained counsel for contempt charges(about 30
>accumulative ) and motion to modify.
>
>Mother(pro-se) filed motion for mediation for issues that are
>cannot be addressed via mediation and need  a judge to be
>dealt with i.e. reduction is support, changing schools. Mother
>filed motion and had a hearing date in 6 days.
>
>Father had retained attorney a few weeks prior and faxed
>attorney copy of motion 4-days prior to hearing. Attorney
>asked judge for time to respond. Nothing else father has
>retained counsel for has been initiated. This concerns me.
>
>Father is thinking of going pro-se as already $800.00 for
>review of information, calls and appearance to ask for time to
>respond and status 30 days out.
>
>If father goes pro se he will ask for motion for mediation to
>be stricken as issues need to be addressed by someone who has
>the authority to bind and hold in contempt.
>
>Looking for proper procedure:
>
>1)Can father ask for hearing date for rule to show cause and
>modification at same time asking for motion to be stricken?

I don't know if understand your facts. If you have a hearing in 6 days from now on the question of mediation, then you should appear and ask the court to deny the motion on grounds that the parties are too estranged and the case is far too adversarial to be mediated. Then present your argument and let the judge decide.

>2)Does father need to have motion for rule to shoe cause and
>modification ready at this time?  What paperwork needs to be
>filed if a hearing date is set?

I have no idea what your show cause is about. Please rewrite your post and tell me precisely what is pending before the court, when it is pending on the calendar, whether the parties have both addressed the issue in pleadings, how they have addressed it, and what the ultimate issue is for each pleading.

>3)Does the judge decide at that point or is it referred for a
>trial?

Depends on the type of hearing, the issue, the facts, etc. I think you may be panicing unnecessarily, or due to the outlay of funds. If you're gonna go pro se you need to learn more about how the process works. Your posts indicate that you're a little too far in the dark at the moment to be able to represent yourself effectively in a court.

Windd

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RE: Procedural for Pro Se
« Reply #2 on: Apr 05, 2006, 04:05:02 PM »
Yes I am in the dark about legal procedings but I figuire I can do just as well as the mom who is pro se and does not have to pay funds. My funds are limited also. I would have no problem arguing my issues , it's the procedings that I am unclear about. In the past I have felt mom had this unbridled tongue while I was limited in what I could say because I had counsel. That's an akward feeling. Frankly my feelings are to go pro se now or I can wait till I am in the hole and counsel bows out.

At any rate:

1)The mom filed motion to request mediation 3/14/06 to be heard 3/21/06. I received motion 3/16/06 and faxed to my attorney 3/17/06. At the hearing I asked my atty to squash it as the issues were not things going to mediation would help. My attorney asked judge for time to respond and date was set for status 30 days out.

I was concerned because it was not squashed but set for status.

2)My attorney was/is in the process of preparing pleading for my rule to show cause and motion to modify for the last month.
-Show Cause: 8-9 reports filed for failure to bring childback at court ordered time or not at all
- Blows off court order therapy for child when she is supposed to take him
- Child missed multiple days of school when mom is supposed to take child

-Refusal to pay court ordered equal share of fees,afterschool care, music fees
-Shows up where dad and kids are on days not scheduled for her visitation. This dramatically increases child anxiety level

There are a couple more provisions violated also.

Modification will ask to limit days so child can not miss school and so child can get therapy as mom is affirmatively acting against best interest of child.



Thanks for all your work on this board, it is so noble.

socrateaser

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RE: Procedural for Pro Se
« Reply #3 on: Apr 05, 2006, 05:30:38 PM »
A status conference is nothing more than an opportunity to tell the judge if the parties have reached a settlement or whether a trial is required. The judge doesn't want to hold a contempt hearing unless he absolutely must. It's a big deal, because contempt is a quasi-criminal action, plaintiff has the burden of proving all the facts beyond reasonable doubt, and defendant is entitled to a public defender at the county's expense, and she cannot be compelled to testify against herself.

Thus if you go pro se, you will be up against a professional in a case where you must prove your facts beyond reasonable doubt, and I can practically guarantee that you will lose. It will be trying to golf wrong handed against Tiger Woods.

Windd

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RE: Procedural for Pro Se
« Reply #4 on: Apr 06, 2006, 11:03:22 AM »
That’s part of my concern, that none of my issues have been brought to the table. I’d like to be on the offensive (action not smell) not the defensive. The request for mediation is minor compared to the other issues and I would rather have my counsel’s expertise put to more effective use. Heck, I bet the judge would toss the request for mediation if he knew what I was bringing to the table because then he could see and in my opinion say to the mom, follow the orders of the court first before you start this frivolous request for mediation.

All of the issues I bring can be proven beyond a reasonable doubt. Court order says go right; mom consistently goes left or just sits - willfully and with disregard for the authority of the orders. Mom wants her support reduced but has refused to pay her part of other expenses per order of the court. She never provided her tax information for the previous year in which support was initiated, so no one knew what her true income was.  Also, when mom was the primary residential parent she lied to the state that she was not getting child support even when an order existed (fraud) and I have a copy of the signed paper work indicating such. I have current attendance records from school that show 90% of days missed are day (Friday) mom is ordered to take child to school. There is a span of 2.5 months where child missed every Friday.

I know bias still exists in the system because if the father were to do the above things, his access to his children would cease or be very limited or he’d be incarcerated. I see the systems ease in persecuting one gender over another. The under tones are frightening. Even in this case it appears no one, attorneys or judicial, wants to “pull the trigger” on the mom as if they are governed by some unwritten rule/force. In a democratic society it’s scary and gives one gender/race/class a feeling of superiority while trying to make the other second-class.  And it’s spreading down like a cancer through the school system in the treatment and education of boys and girls.

Thanks again Soc for your insight and wisdom.

As the judge told the mom and I before custody trial, if you want to proceed you are rolling the dice, so think about it seriously for a few minutes. I thought about it for a second because no matter how the dice turned out, it was better than what I had been getting.




Soc I was just reading your response to the poster above where the CP would not get the child and I have a question.

Court order says parents are to share equally in afterschool care and the NCP does not pay.

Should the CP go back to family court to collect or go to small claims court? What would be the advantages to either?


socrateaser

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RE: Procedural for Pro Se
« Reply #5 on: Apr 06, 2006, 01:04:14 PM »
>Court order says parents are to share equally in afterschool
>care and the NCP does not pay.
>
>Should the CP go back to family court to collect or go to
>small claims court? What would be the advantages to either?

In family court, you need to prove contempt of the existing court order to get money ordered. Your burden is proof beyond all reasonable doubt, the defendant cannot be compelled to testify against him/herself, and is entitled to court appointed counsel if he/she can't afford one.

This means your case must be air tight, and provable without any interrogation of the defendant. Hard to do for most cases, except where the court orders and the defendant's acts and ommissions are clear and unambiguous. Also, and this is very important in cases where the defendant parent has committed something really onerous, if you lose, double jeopardy attaches, and the DA cannot prosecute any criminal wrongdoing tried as part of the contempt action.

If you win, however, you can do the one thing that you cannot achieve in civil court, if the issue is child support -- you can ask for incarceration, because the 13th Amendment prohibition against involuntary servitude, and derivatively, against debtor's prison, does not apply to a child support debt. Also you have much greater ability to collect, priority in front of all other creditors and bankruptcy filings (except tax liens), and assistance from the State child support enforcement agency. So, the court has much bigger teeth, because it's all about the "innocent child," so the legal theory goes.

In small claims, you only need prove your case by a preponderance of evidence, i.e., that it is more likely than not that the other parent is liable. The other parent must testify if called, no appointed counsel is available (parties must represent themselves), and no double jeopardy.

However, if you win, you can only get an ordinary civil money judgment. Such a judgment does not have priority over other debts, it can be extinguished in bankruptcy, it requires ordinary garnishment process, which is extremely cumbersome and difficult to effect, and you will get no help from the State to collect. You can't ask to have the other parent jailed for refusing to comply, because imprisonment for ordinary debt is prohibited by the 13th Amendment.

Also, in small claims, if the action is the equivalent of a contempt violation, rather than the breach of some contractual agreement between the parents, then you are not suing for contempt, and you need a different legal theory to operate on.

In your example, you say that the other parent violated the orders by not sharing the court ordered cost of afterschool care. In order to make a case, you must pay the bill and then sue the other parent under a quasi-contract theory, which basically says: "Defendant was court ordered to share this expense. Defendant failed to do so. Plaintiff paid the entire expense,and consequently Defendant was thus unjustly enriched at Plaintiff's expense, because he/she avoided a payment which he/she would otherwise have had to make, and Plaintiff should be entitled to reimbursement for the unjust benefit received at Plaintiff's expense."

Can you win on such a theory? Yep. But, you have to know how to plead it, and up until this instant, you didn't know, and most laypeople who don't come to my site and ask will never know.

Actually, most attorneys, don't even think about this as a cheap alternative, because it cuts them out of the deal. But, it's entirely legal and you can do it. You just have to be prepared to deal with what can be a very difficult and sometimes impossible collection effort.

However, if the other parent has an employer or a home with equity or substantial assets in an investment account, that will cover your bill, then you can usually collect -- although with a home, there is usually a minimum amount below which the sheriff cannot seize the home and sell it to cover your judgment ($3,000 is typical). So, if you don't get $3K from small claims, then you're stuck with a judgment lien that can only be executed if the other parent sells their property. Then you'll get your money from the escrow company on sale, because no lender will fund against a home with a lien on title.

Anyway, by now you can see that there are a lot of reasons to go to family court for relief -- and a lot of reasons not to.

 

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