Conflict of Interest?

[HelpingHands]

Va Appeals Case. Mother in Va. Father & child reside in TN.
Mother and Father have joint custody, Father awarded Primary Residential Custody, Mother has Visitation Schedule. Mother filed appeal. Paperwork received today states: XXXX court is the court from which this case is appealed. This case is scheduled in the XXX court at the address shown above on Oct. xx 2006.  for the following purpose:

"Scheduling a date on which this case will be tried you must be present and ready to set this case at the hearing"

Signed by the Circuit Clerk

CC: to the parties, the GAL for the child and the attorney's name the other party listed when filing the original motion to appeal.

1. The attorney the other party listed is partners with an attorney I once had a phone consultation re: ongoing  child/ visitation/ custody issues involving same parties  in 2004 or perhaps 2005. Is that a conflict of interest?

2. If that's considered a conflict of interest, how can it be brought to the judge's attention that counsel is partners with an attorney that has provided a consulation regarding this same child previously and may have access to confidential information and that I want to prevent that attorney from being involved in this case?

3. Will it make a difference to try to get the attorney dismissed for conflict of interests??

4. What exactly does ' be prepared to set this case at the hearing' mean?  

5. Should we  bring evidence of the child's current school attendance, progress reports, counseling dates, etc to show that an appeal would NOT be in the child's best interest, as she is already established and doing well in her environment?

6. Should we bring ALL OLD evidence to this date to counteract opposing parties argument to why the appeal request should be granted and set for trial?

7. If I can not find an attorney (nobody wants to take a case at this level) to represent me in this case- in time, can I request a continuance in order to try to find legal representation, IF they allow the appeals to go through?

8. The law states that the parties can submit oral argument, can the GAL give her own ORAL arguments/ motions to the court re: the appeals request on behalf of the child, since she is representing the child and the child's best interests and is ordered to be present during the hearing as well?

9 Can we ask for the fees associated with the LAST case and this case when/if the judge denies her appeals request?

Thank you.

[socrateaser]

>1. The attorney the other party listed is partners with an
>attorney I once had a phone consultation re: ongoing  child/
>visitation/ custody issues involving same parties  in 2004 or
>perhaps 2005. Is that a conflict of interest?

If you told the attorney confidential information relevant to this case then yes, and you can ask the court to disqualify the attorney.

>
>2. If that's considered a conflict of interest, how can it be
>brought to the judge's attention that counsel is partners with
>an attorney that has provided a consulation regarding this
>same child previously and may have access to confidential
>information and that I want to prevent that attorney from
>being involved in this case?

Motion to disqualify opposing counsel for conflict of interest, on grounds that attorney is privy to privileged information obtained during a conversation with the opposing party on ??/??/????, concerning the issues of this case.

>
>3. Will it make a difference to try to get the attorney
>dismissed for conflict of interests??

I don't know. Will it?

>
>4. What exactly does ' be prepared to set this case at the
>hearing' mean?  

You should be prepared to tell the judge how long it will require you to present your case in chief at trial, so the judge can estimate the amount of time to set on the calendar.

>
>5. Should we  bring evidence of the child's current school
>attendance, progress reports, counseling dates, etc to show
>that an appeal would NOT be in the child's best interest, as
>she is already established and doing well in her environment?

Nope.

>
>6. Should we bring ALL OLD evidence to this date to counteract
>opposing parties argument to why the appeal request should be
>granted and set for trial?

There's nothing in the order that suggests you have the option. It appears that the trial de novo is non optional. There may be some statute that would permit you to object and gain a dismissal, but it would be local to VA and I would have no way of knowing what it is (without a lot of research, and you can't afford that).

>
>7. If I can not find an attorney (nobody wants to take a case
>at this level) to represent me in this case- in time, can I
>request a continuance in order to try to find legal
>representation, IF they allow the appeals to go through?

You still have time to find counsel prior to the hearing. Explain to the judge that you've been unable to find anyone who is willing to represent you and that you would like the trial set far enough away so that you can find counsel -- or in the alternative, the court should appoint a qualified local counsel as no one seems willing to represent you, even for compensation.

>
>8. The law states that the parties can submit oral argument,
>can the GAL give her own ORAL arguments/ motions to the court
>re: the appeals request on behalf of the child, since she is
>representing the child and the child's best interests and is
>ordered to be present during the hearing as well?

Yes, but I don't know VA civil procedure, so I can't guess what sort of motion that the GAL might bring for a dismissal.

>
>9 Can we ask for the fees associated with the LAST case and
>this case when/if the judge denies her appeals request?

You seem pretty certain that this motion to dismiss will be part of the hearing. I'm not so sure of this, but maybe so. However, assuming that the court denies the new trial, then you can move for attorney fees, and the court will likely order the parties to each submit briefs explaining why they should get attorney fees and costs of suit.

[dipper]

Helping Hands,

Is this an appeal from a recent custody battle?  In Virginia, you have ten days from the time an order is signed to appeal the decision.  The case was originally heard in district court and when an appeal is filed, the person automatically gets it....there is no proof that it is necessary....the case is heard all over again in a circuit court.  

Now, if a party is unsatisfied by the outcome in circuit court, they can then appeal to the state appeals court.

[HelpingHands]

Yes, it was just heard in August '06. She did file within the 10 day limit. The original hearing was heard in Juvenile and Domestic Relations District Court  and is now Appealed to Circuit Court.

Thank You for answering.