Attempting to settle before Case Conference

[informedmom]

My boyfriend's ex served us with a Form 15: Motion to Change. She is seeking sole custody and Section 7 expenses (outrageous expenses we were not consulted on). Currently, the separation agreement states Joint Custody although the ex has worked really hard at interfering or controlling access time for quite some time. Their child is now 13.

We are self-representing; she has a lawyer. Our Case Conference is set for the first week of July.

In our reading of Family Law and procedure, we read that the each Case Conference is about 30 minutes and the purpose is to settle the issues, not argue them. Is that correct?

Secondly, can we respond to her motion directly to her lawyer and provide evidence to support our side of the issue in an attempt to settle? We can counter every claim she is making with documentation. If so, are emails considered fair documentation?

Lastly, she wants any access to be determined by the child's wishes, the child's schedule (which she controls). Is that allowed? He has just turned 13.

[HappyMomma]

I just went through a case conference recently. A case conference is basically he-said, she-said. You each tell your side on the forms and you can provide supporting documentation via an affidavit.

Her lawyer will want to talk to your ex before you go in to see the judge to try to settle the issues. Be well prepared with your arguments and be ready to be reasonable. And make sure your arguments are based on law and not your personal opinion. The judge will be much happier if you manage to solve some of the issues before going in. If you don't solve everything, and you get a good judge, he/she will recommend a solution - hopefully your ex will listen.

How long have you had joint custody? In my case my ex tried to go for sole custody after 3 years of joint. He tried to say that it is impossible to co-parent because I will only communicate with him via email. Judge didn't care and made it pretty clear that there was no reason to change a status quo after 3 years. However, my ex also settled this issue before the judge said that. My point is tho - if joint has been the status quo for some time then you shouldn't have a problem keeping it. At 13 your son will probably have some say as to where he wants to live (access) but he wouldn't have any say in the joint/sole custody decision.

I'm no expert but what I can tell you is that if there is a decision made re: custody - ask the judge to have a final order written up ASAP so she can't go back on it.

Good luck!

[Mess]

The Case Conference is for the case to be reviewed, briefly and superficially, by a judge. The judge should give an opinion of what the outcome of the case might be.

Be aware that the judge spends minutes, not hours, not days, going over your case and the opinion is very basic. You don't get to challenge the other party's assertions and little or no evidence is examined.

The judge will go over the financial disclosures, but won't examine supporting statements in any depth.

The judge will encourage you settle, but cannot force you to. The judge will come across as VERY assertive, but cannot make an order without both parties' consent. There are some exceptions to this, if there is missing documentation, like bank statements etc, you may ask for an order to produce the statements, this type of order doesn't need consent. but otherwise, the judge cannot force any kind of settlement on you.

You may ask the judge for court ordered mediation at this point to avoid trial. The court's mediators are usually cheaper and they won't drag out the process to pad their billing. It's not a bad idea if you are considering mediation to ask for this, especially if you are on a tight budget. (We are all on a tight budget, but if you are earning six figure salaries, the judge will probably suggest you hire your own.)

If you have any problems with your ex's documentation it is a good strategy to ask for a judge's order to produce supporting documents or redo the financials. This is because almost everything from the Case Conference is "off the record" and most of the paperwork will be disposed of, it doesn't carry on to the trial. But if you get an order because your ex is trying to hide things, not producing supporting statements, etc., the judge's order can be refered to later to show that the ex is being unco-operative or was trying to hide income or assets, etc.

I would say that if you just catch this stuff verbally, and the ex produces it later, they will claim it was a mistake, but if you get an order then you can show they were hiding things. This may be a small thing or a big thing, but it is one of the few tools you can use to carry the issue forward, otherwise the Case Conference is mostly "Without Prejudice."

Similarly with mediation. You can have open or closed mediation. Closed means it's off the record. In most cases I would suggest open. Mediation is a situation where you are both putting your issues and arguments on the table. If your ex is completely unco-operative and being deceptive, manipulating facts, withholding information, then open mediation allows you to show this later. With closed mediation, your ex can be completely unco-operative, waste time and money, produce nonsense documentation, etc. and there is nothing you can carry out of the situation.

The issue is credibility and willingness to settle, if your ex is playing games then you need to be able to show this.

Before you go to the Case Conference be very clear what your boundaries are, what you are will to bend on, what you absolutely have to come away with, and WRITE IT DOWN FOR YOURSELF. The ex's lawyer will talk your head off and convince you the world is flat. The judge will come across as god and you may feel intimidated into agreeing to something you regret later, based on information that you find out later was false. Know when to bend and when to stand your ground, and keep a boundary between the two.

Have very detailed notes and copies of any documents and statements in a binder, separated by clearly labeled tabs so that you can find anything and everything in a moment. Don't hesitate to refer to your notes but don't try to turn the Conference into a trial. This is a situation to present your side, not to argue against the other side.

[billiechic]

Great advice Mess! Just what I needed to read. My CC is in 2 weeks.

[informedmom]

Thank you so much. What great information. I think we are pretty clear on the Case Conference now.

Can we attempt to settle some of the issues prior to the Case Conference? Can we send documentation to her lawyer to counter her claims?

We were served with a Form 15: Motion to Change as well as a Form 10: Answer to our General Application and issues around access.

In her Form 10: Answer she states that she does not agree with our initial claim. Her reasons are outrageous as she is trying to paint a picture of a deadbeat dad.

My boyfriend and his ex have had joint custody since their agreement was signed in 2005. He has always paid child support on-time and has provided full disclosure of his income. He has always paid the table amount and attempted to be part of his son's life in every way. We have documentation to prove this.

Also, we can counter everyone of her claims in her Motion to Change. The majority of her claims have no basis and are completely false. Given the nature of the Case Conference, we want an opportunity to counter her claims and settle some of the issues prior to going. What are our options?

[Mess]

informedmom, I found it was pointless to send documentation to the other lawyer. Your ex knows the truth, you aren't proving anything to the ex, and their lawyer is just doing what they are told.

Unfortunately when you get to this point it is also a bit of a poker game. Don't reveal everything in your hand. If you have proof that your ex is lieing, or at least mistaken, let them write the false info on official court submissions where it counts, THEN show your documentation to the court, not to the other lawyer.

If your ex is lieing or manipulating facts, let them dig their own grave.

If there is genuine effort to be amicable and settle, and they are just under a misunderstanding, then by all means offer to show the documentation, but don't give away all your own ammunition.

As I said above, a lot of what matters in court is credibility. Let your ex destroy their own credibility, then show your documentation.

*Note if this is financial disclosure, you have to make clear and complete disclosure of income, expenses, and assets. But submit it to the court and let the ex's lawyer find it in the court submissions.

[Mess]

Also, we can counter everyone of her claims in her Motion to Change. The majority of her claims have no basis and are completely false. Given the nature of the Case Conference, we want an opportunity to counter her claims and settle some of the issues prior to going. What are our options?

You should be filing an answer to her motion, you should be countering her claims in your answer, and attaching an affidavit with appropriate documentation to back you up in your answer.

What you submit for your case conference brief should a summary of what you gave in your answer. If you have new information or documents then you should be filing that as an additional affidavit with your Motion answer.

[informedmom]

You should be filing an answer to her motion, you should be countering her claims in your answer, and attaching an affidavit with appropriate documentation to back you up in your answer.

When we file the answer, how much documentation should we reply with? Should we be holding back some for court at a later date?

Now what about her Form 10 (Answer)? We know we can file a Form 10a (Reply) but how long do we have to do this? What do we do if they refer to evidence that was not attached? Also, if she is including a claim on the Form 10 in regards to Section 7 expenses, do we have to file a full financial statement?

[Mess]

No you put everything in your answer. At a motion hearing you won't have any opportunity to add anything new.

What I mean is, don't send anything to your ex's lawyer ahead of time and tip your hand. But your court documents should be complete.

If they refer to any evidence that isn't attached, then it doesn't exist as far as the judge is concerned. However you should also point this out, state that any claim without factual evidence is unsupported and should be disregarded, and where possible provide evidence to dispute the claim.

[informedmom]

In preparing our Form 10a(Answer), I was wondering when we could include evidence that supports our original claims?

Looking back on the Form 8 (General Application), I realized the proof of our claims should have been included there...but it wasn't. What now? Can we amend our Form 8 or should we include our support for our claims as part of our response to her claims in her Form 10.

We have so much information to use but are learning as we go along. Any advice is appreciated.