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Periodically, I will post helpful information. My posts are searchable by category, and shared out of a desire to assist you with legal concerns. I invite your comments!
– Curtis W. Daugherty
July 2016
In my last post I talked about the level of certainty required in matters of Family Law, depending on WHAT you need to prove. In this post, I’ll cover HOW to prove what you need to prove.
How can I prove it? It’s a question you may not think to ask yourself until you’re standing in front of a judge, but unless your Ex makes it obvious to the court that they are a problem child, you’ll have a hard time proving their errant behavior if you don’t have documented proof.
What you can do. Keeping a calendar or simply writing down what happened at or near the time of the event is a good first step. Having family or friends observe your interactions with your Ex, then reviewing your calendar entries about these interactions is the best way to make your case. Keep a journal or a calendar to record your Ex’s bad behavior, and record it at or near the time it happens. These constitute what the court refers to as contemporaneous notes, and they carry greater weight with a judge.
But I hate keeping a journal. I get it. Writing everything down is a chore.
If that doesn’t work for you, try this. Let’s say your Ex is getting lax about picking up the kids when he or she is supposed to, or refusing to exercise their visitation, leaving you to wait endlessly because they don’t show up or call. Exchange the kids where you can buy a burger or soda, or fill up the gas tank. In doing this, you get a date/time stamped receipt while taking care of something you need to do anyway. Keep your receipts as proof that you really were at the exchange point, on time, and ready to pickup or drop off your child, and it was your Ex who showed up late (or not at all).
A picture is worth a thousand words, especially if it has a time stamp. If you’re having similar problems but the visitation exchanges take place at your home, just take a picture of them walking away from your Ex’s car. Provided you capture the image with a date and time stamp, you’ve made it very difficult for them to claim they were not late, or it was your fault, or whatever their usual excuse is. Even if they are on time, it will put your Ex on notice that you’re serious about sticking to the schedule, and able to prove it if they aren’t.
The point here is that you can’t wait until you’re standing in front of a judge to come up with the proof for your assertions. Figure out the easiest way for you to document your Ex’s bad behavior, whatever that might be. Dealing with a misbehaving Ex in difficult, but if you prepare, you can significantly improve your chances of things going your way in court.
Different areas of law require different burdens of proof. In Criminal Law, the burden of proof is “beyond a reasonable doubt,” commonly thought of as 99% certainty. For Family Law, the burden of proof is considerably lower, but there are essentially two levels of proof required depending on what you are trying to prove. Let’s look at those two levels:
Preponderance of the Evidence = 51% Certainty. This is the level of proof required in General Assertions. Lets say you are asserting to the court that your Ex owes you money or that you want to modify custody/visitation. The judge may rule in your favor based on a “preponderence of the evidence,” meaning you’ve demonstrated with a 51% certainty (more likely than not) that your Ex really does owe you money or that the requested modification of custody/visitation is in the best interest of the children.
Clear and Convincing Evidence = 75% Certainty. This is the level of proof required in Proving Contempt. In many cases, my clients are coming to me because their Ex is not following a court order, the set of rules handed down in a previous judgment with regard to such issues as child custody, visitation rights, or property division. When someone disobeys a court order, they are “in contempt,” a legal term for someone’s behavior when they knowingly defy the court. This is a serious matter that can lead to jail time, hence the higher burden of proof.
As an Example: Let’s say your Ex has repeatedly denied you visitation as specified on the court order. The challenge now, is to PROVE that your Ex is in contempt.
There are three things that you and your attorney must prove to this higher standard of clear and convincing evidence (75% Certainty):
1. Prove there is a written court order in your case requiring your Ex to fulfill the particular obligation they are failing to fulfill.
2. Prove your Ex KNEW there was a court order requiring them to fulfill the obligation that they are failing to fulfill.
3. Prove your Ex WILLFULLY refused to fulfill the obligation.
In the above example, showing that there is a court order is relatively easy. Showing where your Ex signed the court order is also relatively easy. Showing that they willfully refused to fulfill the obligation is NOT as easy, and must be demonstrated to a 75% certainty.
This brings us to the topic of “contemporaneous notes” a legal term for notes written at or near the time of the event, while the event is fresh in your mind. This adds credibility to your notes. If your notes were made before the current fight began, your notes are more believable.
In the above example, your Ex has refused to turn the kids over to you for your court ordered visitation. Lets say you tell your Ex that he or she is in violation of the court order, and document it that same evening in your journal. You now have a contemporaneous note. The next time your Ex refuses to allow you visitation, you are in a good position to show that your Ex is “in contempt,” because they continued to defy the court order, even after you pointed out to them that they are defying it.
Your Ex’s only recourse, would be a contemporaneous note of their own that counters yours or, more likely, getting one of their family or friends to claim that your Ex did not fail to let you have the kids but that you failed to communicate with your Ex (the it’s not me, it’s them defense – which is all too common). In that case it will come down to text messages or e-mails or phone records. If you can show that you made the contact, your Ex will be unlikely to counter such proof and you will likely prevail.
Understanding how the burden of proof can work FOR you or AGAINST you in Family Law is important.
When your ex throws dirt at you in court, it isn’t always easy to prove that you didn’t do what they are claiming, and because they have a lower burden of proof, 51% in this case, you might find yourself in a difficult position.
So what do you do? If you’re living under a court order, think defensively. Log your fulfillment of court ordered obligations, and keep a journal. Having your own set of “contemporaneous notes” of when you dropped the kids off, and when you picked them up, could come in handy.
June 2016
Our apparent appetite for online communication and its ability to impact the outcome of a divorce makes it a timely and worthwhile topic. The guidelines aren’t as common-sense as you might think, so if you or someone you know is going through a divorce, please read this or pass it on:
No. 1. You’d be amazed at what can end up on Social Media. And you don’t have to be the one to post the picture! Anyone anywhere can take a picture of you and post it online. Just ask a teenager how easy it is to find pictures of yourself doing things you wouldn’t want the court to see. If you tell your Ex you can’t take the kids this weekend, know that he/she just might find the pics that you or somebody else posted of you knocking back drinks on your weekend at the beach and use them against you in court.
No. 2. Social Media and Drinking Don’t Mix. It’s unfortunate that computers don’t come with breathalyzers. Going through a divorce is almost always an emotional ordeal, and texting or posting on social media with lowered inhibitions can lead to Ex-bashing rants, divulging financial information, revealing past behavior, and broadcasting a host of other things that can be used against you in court. Just don’t do it!
No. 3. Don’t Delete the Stupid or Emotional Stuff You Previously Posted on Social Media. You have an obligation not to hide evidence. When you post nasty things about your Ex in an emotional moment, don’t think you can take them down later and get away with it. Once it’s out there, it’s out there, and the court can require you to cough it up, consider it against you, and can sanction you for the destruction of evidence.
No 4. Don’t Unfriend Your Soon To Be Ex on Facebook or Other Social Media. (This is tightly linked to point No. 3.) When you “unfriend” your soon to be Ex on Facebook or prevent them from following you on twitter or whatever social media you use, you are hiding evidence. The court will require you to restore your Ex’s friend status, giving him/her access to the very information you didn’t want them to have in the first place, which they will then use against you in court.
This is the third post in a three part series in which I highlight positive outcomes for cases that I’ve handled over the years and what you can learn from them. This is not a representation of the outcome in your particular case, but rather an explanation of what happened in these specific cases:
In a recent Family Law case, it became apparent that the judge was inclined to grant the opposing party a continuance to gather more evidence. This would mean putting my client through the expense of a contested hearing.
Both sides reviewed the mediator’s report, then I negotiated with the other parent to see if a mutual agreement could be reached now that both sides knew what the mediator had recommended. During negotiations, the other parent indicated that they wanted to end things that day. Knowing this, and sensing that they were concocting allegations with no evidence to back them up, I called their bluff and requested that the judge state reasons for ordering a contested hearing when neither side had requested one.
When the other parent confirmed that they had no additional evidence, the court had no choice but to render its decision immediately based only on the evidence we had presented. Our evidence, specifically designed to disprove the accusations the other parent had concocted without proof, led to a favorable outcome.
Talking to my client to learn about the other party’s tendencies, asking questions designed to elicit information from the other parent, and relying on good instincts, can make the difference between “short and sweet,” or long, drawn-out, expensive litigation. This was a case of taking a calculated risk, but experience, paying attention, and knowing how to read people made the difference.
Negotiations are more than just giving in or giving something up. Often, you can learn things that help while still in the fight. Negotiate when you can, and fight only when you must. But if you must fight, let us fight for you.
This is the second post in a three part series in which I highlight positive outcomes for cases that I’ve handled over the years and what you can learn from them. This is not a representation of the outcome in your particular case, but rather an explanation of what happened in these specific cases:
All custody cases must go through a mediation process in hopes the parents will settle their differences without a trial. Mediators are county employees tasked with hearing each side’s case and writing a report to the Judge based on the mediation session. Their recommendations carry tremendous weight. A Judge MUST: follow the mediator’s recommendation, or cite special circumstances or give good cause for doing something different.
Therefore, how a parent manages their mediation session can have far-reaching consequences.
In a recent case, all previous reports had been unfavorable to my client who was a Father seeking custody of his children. With my coaching, he received his first favorable report and was granted custody of his children during the school year.
Knowing how the system works, and learning how to present yourself can make all the difference. Let me show you how.
This is the first in a series of three posts in which I highlight positive outcomes for cases that I’ve handled over the years and what you can learn from them. This is not a representation of the outcome in your particular case, but rather an explanation of what happened in these specific cases:
I represented a mother whose Ex voluntarily took temporary custody of their child while she fled from an abusive situation with her new spouse. Once she was safe, however, her Ex refused to return the child to her.
This of course was not okay with my client. We were able to gain a positive outcome using a child custody law that runs something like this:
If you are going to move outside the county and take the children with you, you must give the other parent notice in writing and send that notice by certified mail, return receipt requested.
Failure to follow this rule makes a court less likely to permit you to take the children with you. Whether you give notice or not, you must prove that the move is in the children’s best interest.
Because the Father did not follow this rule when he moved to a new county, and because he failed to follow the previously agreed upon visitation plan, this put him in violation of the law. Because of this, I was able to persuade him to comply with the previously agreed upon visitation schedule, thereby avoiding litigation and its expense.
Negotiate when you can. Fight only when you must.