Question on legalese and process

[DecentDad]

Hi Soc,

Refresher, the course of the past few proceedings was:

A. Ex Parte by mom to terminate overnights in my home.  No finding of irreparable harm, and OSC was continued 2 weeks to let me respond.

B.  OSC started to go my way.  Ten minutes into the hearing, OC abruptly introduced "suicidal kindergartener" concept, which exploded everything.  GAL was appointed.  Therapy was ordered for child.  Overnights in my home were terminated until review hearing 30 days later.

C.  Review hearing.  Judge restored everything I had lost a month prior, gave me a little more, and stated, "Expanding time in dad's home is part of the solution here."

At the OSC (#B above), on my responsive declaration form, I had checked the option "Does not agree to request but agrees to:" and filled in what I wanted (i.e., 50/50 schedule, per 730 recommendation to begin in 2006).

I filed my supplemental declaration for #C above, but I hadn't requested any new relief for that hearing.

In going back over our most recent hearing (#C above), I note the judge specifically asked, "Is dad asking for any affirmative relief here?"

OC said no.  I tried to point judge to my responsive declaration from #B above, where I had checked that box.  Judge didn't seem to hear me, was mostly listening to OC and GAL.

1.  What is "affirmative relief"?  Is it not the same to check "Does not agree but instead agrees to" versus filing my own OSC to occur on the same day?

2.  With another judge, I experienced that requesting a modification of issue XYZ seemed to open the door for the judge to exercise discretion to resolve/modify issue XYZ in a way neither parent requested.  I had been assuming that if the moving party requests to modify XYZ, responding party can RESPOND with a request to modify it in another way (if responding party doesn't like status quo); mainly because of the insinuation to say "I want something different" on the responsive dec form.  Incorrect assumption?

3.  Why would the judge specifically ask that, anyway?

Thanks for the clarification.

DD

[socrateaser]

>1.  What is "affirmative relief"?  Is it not the same to check
>"Does not agree but instead agrees to" versus filing my own
>OSC to occur on the same day?

In an ordinary civil law and motion hearing, petitioner/movant moves for specific relief and respondent opposes that relief.

In a family law OSC (i.e., a motion for an order commanding the other party to appear at a hearing and show cause as to why the petitioner's requested relief should not be granted), CA rules permit the responding party to request affirmative relief, i.e., to move for something completely different, and not merely oppose the other party's motion).

So, if you asked for affirmative relief, and the court failed to address it, then that relief is technically unresolved and you are still legally entitled to a ruling by the court. The fact that OC and the GAL basically brushed aside your requests violates due process and frankly is grounds for a complaint both against the judge and the other two attorneys.

Of course, if your requested relief was rendered moot by the decision, and/or you don't really care about the affirmative relief anymore, then I wouldn't make a federal case about it (although, under the civil rights act, a violation of due process does, in fact raise an action against the court and the two attorneys which is redressable in federal court -- but, let's not go there).

>
>2.  With another judge, I experienced that requesting a
>modification of issue XYZ seemed to open the door for the
>judge to exercise discretion to resolve/modify issue XYZ in a
>way neither parent requested.  I had been assuming that if the
>moving party requests to modify XYZ, responding party can
>RESPOND with a request to modify it in another way (if
>responding party doesn't like status quo); mainly because of
>the insinuation to say "I want something different" on the
>responsive dec form.  Incorrect assumption?

See above.

>
>3.  Why would the judge specifically ask that, anyway?

Judge doesn't want to ask you, because he/she doesn't want to acknowledge that you are good enough to beat a licensed member of the State Bar of CA, pro se (self esteem issue, in my lay opinion).

[DecentDad]

Okay, thanks for the clarification on ability to request relief in a response in CA family law.

I'm still confused on how the TIMING of everything played a role.

We had the OSC (the middle hearing), at which biomom prevailed and got the relief she requested.  I had responded with request for different relief, but orders went to biomom.

But then we had the 30-day review hearing per the court's own order at the OSC.

So, I wasn't sure if that the 30-day review hearing was like an extension of the original OSC (where I HAD specified affirmative relief), or was a new hearing unto itself at which anything could happen (and I hadn't filed anything anew seeking relief).

GAL largely shut up after his 10-minute report, given that he was somewhat ill-prepared (and OC was slamming that GAL waited until 3 days before the hearing to do anything) added to the judge poopoo'ing the GAL's recommendation to ease back into the prior parenting plan.  Judge saw no need for soft transition back into it.  

As soon as GAL reported child wasn't suicidal or depressed (per the psychologist's report to GAL), it was then just a bunch of debate between OC and judge with some tidbits from GAL; and the judge kept hushing me (I'm now thinking it was probably because in his eyes, I had already won?).

So, OC is the only one who told judge I wasn't seeking affirmative relief.

1.  Technically... did my request for relief at the OSC carry-over to the review hearing, or should I have filed something anew?  Or is this just gray area, where the review hearing MAY have been a continuance, or MAY have been a new hearing?

[socrateaser]

>1.  Technically... did my request for relief at the OSC
>carry-over to the review hearing, or should I have filed
>something anew?  Or is this just gray area, where the review
>hearing MAY have been a continuance, or MAY have been a new
>hearing?

Your request for relief should have been considered at the hearing that ordered the 30 day review, but as it didn't, then yes it carried over, which is why the judge asked if you were asking for more -- because you were entitled to a ruling.

By saying nothing, and by the court ordering nothing, you are still entitled, but, when you file your order after hearing and the judge signs, that will terminate the controversy, because you will have effectively waived your right to any affirmative relief by not objecting to the order on grounds that it doesn't cover all the issues raised.

[DecentDad]

At the OSC (during which the 30-day review was ordered), biomom prevailed due to the suddenly introduced hearsay testimony of child's suicide threat.  So, overnights in my home were terminated.

My relief sought at that same hearing was to move to 50/50 (i.e., increasing overnights in my home), supported by my responsive dec.  I couldn't foresee the suicide thing made at time of hearing.

So, it seems the court's ruling for biomom (at the OSC) DID make my request moot (i.e., even though orders after that hearing didn't mention my request specifically, it had orders made for that exact same issue).

At the 30-day review hearing ordered on its own, the court then switched it all back + a little gravy for dad.

The review hearing disposition was based upon the court's own orders (and not either side's motion), and it went back to prior orders after realizing the hearsay testimony was not founded.  So... it seems neither side had any requested relief going into that review hearing?

Do I have this all correct now?

I'm only asking because... well, I'm sure I'll get served with something new in a few months and come heck or high water, I'm going to know this process inside-out before the kid is 18.

[Dez]

DD,

You sound like you have a pretty good handle on the 'pro se' thing. Bravo! It's not easy by any stretch.

Reading your posts, and figuring out the abbreviations got me to thinking. It would probably make Soc's life a lot simpler if we had a glossary of acceptable terms and abbreviations to post here. Just a thought. What do you think? Soc?

Good luck with your case.

[socrateaser]

>Do I have this all correct now?

Well, not really. If the court is to provide the required due process, then it has an obligation to expressly rule for or against every motion, unless withdrawn by the movant. So, the final order should actually state what the court orders, and also what the court denies. Since you requested some affirmative relief, the final order should deny that relief, something like this:

The court hereby orders as follows:

1. Mother's request for termination of father's parenting time is hereby denied.

2. Father's request for increased parenting time substantially equal to mother's is hereby denied.

3. The temporary orders are hereby terminated, the prior permanent orders reinstated, except that father shall enjoy an additional week during summer with the child.

That was sloppy, but you get the idea. If you were in Federal Court, you could expect a ruling like the above -- but State courts are simply too busy and the judges are not as capable, generally speaking (in my opinion, of course).

[socrateaser]

>DD,
>
>You sound like you have a pretty good handle on the 'pro se'
>thing. Bravo! It's not easy by any stretch.
>
>Reading your posts, and figuring out the abbreviations got me
>to thinking. It would probably make Soc's life a lot simpler
>if we had a glossary of acceptable terms and abbreviations to
>post here. Just a thought. What do you think? Soc?
>
>Good luck with your case.

I think it's an excellent idea, but I don't have time to compile a glossary. If someone here wants to do it, I will review it and post it. But, it will need to be maintained, so that someone is taking on a continuing duty (for free).

[DecentDad]

Okay, got it.

Feh, so if the court didn't rule on my responsive request, I guess I left the window open to try again sooner, rather than later, when dragged back in (or something else happens).

Thanks for all the explaining.

[DecentDad]

>Reading your posts, and figuring out the abbreviations got me
>to thinking. It would probably make Soc's life a lot simpler
>if we had a glossary of acceptable terms and abbreviations to
>post here. Just a thought. What do you think? Soc?

Thanks!

There is this list on SPARC... http://www.deltabravo.net/custody/acronyms.php

It doesn't have all the legal terms, but quite a few common ones.

I also don't think I'd be using the abbreviations if I hadn't been posting to Soc every few months for the past few years (and know that he recognizes the abbreviations).