Continuance if evaluator isn't done & judge is crotchety?

[DecentDad]

Hi Soc,

I'm entering fourth month of 730 evaluation in California with a private evaluator.

The deeper the evaluator goes, the more advantageous it is for me.  We're in a "he said she said" environment, and most of the "he said" is backed by evidence, if evaluator reviews it all.

Opposing side benefits by having a faster eval, or no report at all.  Keeping the status quo is to her advantage.

Trial date is February 27.  Original trial date was Sept 2003, but evaluations hadn't yet started yet for variety of reasons.  Judge seemed annoyed but granted continuance to the new date.

I've been gung-ho with the eval process, made appts with the evaluator ASAP, turned in all my questionnaires back to him ASAP, took my psych tests ASAP, etc.

Near end of January, my ex finally provided him with a mound of her "evidence", which is primarily narrative that is loosely tied to facts taken utterly out of context.  She didn't bother to address most of what I had already provided.

I put together materials and evidence to refute most of what her narrative claims and submitted to evaluator a few days after hers arrived.

Evaluator told me that he won't be able to go through all this in time for trial.  I told him that my attorney had already mentioned that to me and anticipated we'd need a continuance, as it's important for evaluator to read through everything.

My attorney called opposing counsel to see if he'd be friendly to a continuance.

Opposing counsel wasn't too friendly to the idea.  Aside from his client's best interest in rushing the evals, I don't think he's getting paid any longer.

My attorney is suggesting we may have to argue it before the court.

1.  Judge was ticked off at the first continuance.  Does he have discretion to ignore that the custody evaluator wants more time, and hence refuse to grant a continuance?

2.  Would opposing counsel really fight a motion for continuance?  It'd seem to me that this would suggest opposing counsel is attempting to undermine the spirit of the court order for completion of the evaluation, and would suggest opposing side is fearful of the report.

Thanks for your thoughts, as always.

DD

[socrateaser]

>1.  Judge was ticked off at the first continuance.  Does he
>have discretion to ignore that the custody evaluator wants
>more time, and hence refuse to grant a continuance?

Yes.

>2.  Would opposing counsel really fight a motion for
>continuance?  It'd seem to me that this would suggest opposing
>counsel is attempting to undermine the spirit of the court
>order for completion of the evaluation, and would suggest
>opposing side is fearful of the report.

You're thinking too hard. The judge isn't gonna sanction opposing counsel for arguing that his client wants to go on with her life and that the evaluator has had sufficient time.

You may have to drag the evaluator into court to explain why more time is required. This particular motion seems to me to be a coin toss.

[DecentDad]

Biomom was largely responsible for dragging out the process?... waiting a month to pay her share, waiting two months before her first interview with him, waiting until a month before trial before giving him any evidence?

Thanks,
DD

[socrateaser]

Never forget that the judge gets paid the same money whether he hears your case or not. If the judge thinks that he can dispose of the matter quickly, and get it into the outbox, then he will deny the continuance, if he thinks that there's a good chance of a settlement before trial, then he will allow it.

This is what's really going on, most of the time.

[DecentDad]

Ah, so I'm approaching it wrong.  Instead...

Your Honor, both parties have already stipulated to establish foundation for this privately hired clinical psychologist on the court's list of evaluators, who has 20 years experience, and who has already invested 30 hours into this case.

As you know, this paternity action has been open for nearly 3 years, during which time there have been seven hearings of one sort or another, largely based on he-said-she-said arguments and which have sometimes irritated this court.  We're going into our custody trial now, and we want to avoid a long drawn-out he-said-she-said process.

Allowing for the completion of a thorough evaluator's report evaluation will provide all parties, including the court, with a better understanding of what's going on; with recommendations that can help reduce future litigation and appearing before this court; and perhaps with opportunity for the attorneys to encourage settlement before trial.  

If not, at least the court will have a much easier time ruling on custody if provided the evaluator's report.  All we need is 8 weeks, based upon what the evaluator has suggested.


Is that the more appealing approach?  :)

[socrateaser]

yeah,but have your lawyer ask for a conference with the judge in chambers so he can just say, "your honor, we believe that the evaluation will strongly favor the father, and that this could lead to a likely settlement without trial."

Her attorney will probably agree out of earshot of the client.