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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 05-05-2010, 02:16 PM
cate cate is offline
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Default Case Conference

Hi there,

Friend is scheduled for a CC soon. Separated almost 2 years. Joint custody. Child is 10 1/2 and has been going between both homes 50/50. Claims against friend are that she was/is abusive to ex (bio mom) which is a total lie, was never a primary parent (even though she has been one of two primary parents since childs birth), and basically treated ex poorly for the years they were together. The documents to date are full of self absorbed tid bits of information slandering my friend and has absolutely NOTHING to do with the child.

My question: if the ex is so focused on being a victim and not the best interests of the child, does a judge usually see this? My friend has only been concilliatory in responding and keeps it about the child so as not to incite conflict, which will negate joint custody. Everybody can bring up stories from the past about what their ex partners did to them. The child is happy, well adjusted, and doing wonderfully. What can one expect based on the lies and self centeredness of the EX? They have not been together for over 2 years - what happened between them as a couple should have nothing to do with the child's best interests. Is this so?
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Old 05-05-2010, 09:49 PM
DougL DougL is offline
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Hi there Cate. Well, from my extensive experience with accusations, have your friend ask the judge if they need to address any or all of the accusations to date. Ask the judge if not addressing these accusations will result in them not receiving a fair trial if it comes to that. Get this on record one way or the other. Accusations, unfortunately carry just as much weight with a judge unless you can convince them that they are not true. Affidavits often are taken at face value and not questioned which means you need your friend needs to file affidavits countering each and every accusation. I was trying to take the high road thinking that my ex would consider our son ahead of anything else. Sadly, I was wrong. The ex became the victim in the whole thing and was successful getting things that she would not have had my lawyer of the day been on his toes. Again, sadly to say, I have lost all trust in lawyers as a result. I defend myself now and hire a lawyer only when I need legal advice: half hour at a time. You cannot rely on judges either. They will side with at victim ten times over even if they are not. My ex has been a success family court victim for 14 years. Only now are the judges taking notice that she is still making bizarre accusations that I am now addressing on a one to one basis. The fact that in family law, you are entiltled to a fair trial (oxymoron here folks) if accusations will taint the trial, you are entitled to point that out and have them struck from the record as vexatious.
Hope this helps.
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Old 05-05-2010, 10:11 PM
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tugofwar tugofwar is offline
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Is your friend represented by a lawyer and if so what do they think? Your friend needs to stay focused on the child(ren) and state that the child happy and well adjusted and stick to that. And if they are fighting for joint, then no matter what the ex is like, make sure they do everything in their power to try to be co-operative and take the child's best interest at heart. They should focus on a parenting plan in the cc to prove that they put the child first.
As for the rest of the mudslinging, Im sure judges are sick of reading this and don't always take this to be the truth. Maybe get some letters from school, doctor stating the child is doing well in your friends hands and see where it goes from there.
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Old 05-06-2010, 07:51 AM
Mess Mess is offline
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"Get this on record one way or the other." The Case Conference isn't on the record. The judge won't be the judge at your trial, the Case Conference brief is discarded after the conference. Comments by the judge are not admissible at trial and are usually just attempts to reach a compromise. The judge is addressing settlement and therefore is not able to be your trial judge.

As to whether you should respond to rants, yes and no. What you describe are not relevent to the case. At trial, you cannot bring up irrelevent matters. Even if your friend behaved this way, does it affect any of the issues?

Affidavits of this and that without factual support (attaching a document that supports the claim, like an attendance record or a bank statement) have the least weight. If it goes to trial, matters that have brought up in such will be subject to cross-examination on the witness stand. You don't ignore them, you address them logically and take the person apart and compare every statement and point out contradictions and inconsistancies.

Do you need to address everything in your initial response? Yes and no. In my reply I submitted that we were verbally hostile to each other during the last months during the marriage breakdown, but that neither of us had been abusive to each other during the marriage. I addressed it, but didn't bother dwelling on it point by point.

The application/response/reply is a mini debate. The Applicant states what they want to get at the end of the trial, and reasons why, and facts to back up the reason. The Response refutes those arguments and challenges the supposed facts (if possible). Then the Response submits what the Respondant wants to get at the end of the trial, reasons why, and facts to back it up. Then the Reply refutes those arguments and challenges the facts.

These documents are the basis of your trial. Applicant Seeks > Respondant Refutes > Respondant Seeks > Applicant Refutes.

The material must be logical, it must be relevant, it must be admissible. You don't score points by taking things out of context, exagerating, bringing up irrelevant crap. But the Respondant must still take the trouble to point out that something is out of context, exagerated, irrelevant.

The Brief you do for the Conference should not bring up anything new, it should be a short synopsis of the material in the Application/Response/Reply, so the judge can read one or two pages for the purpose of having a conversation.

The Case Conference does not decide anything. The judge will offer a compromise, and will suggest what a likely outcome would be at trial based on the bullshit, sorry I mean arguments, presented. The compromise and the likely outcome will not necessarily be the same thing. You might walk out of the Case Conference with an interim order based on compromise, that doesn't mean the trial would give the same result.

I hope that helps. You don't have to treat a Case Conference like a trial, but you should briefly point out if something is a lie, exageration or irrelevant, and then let it go. Judges aren't idiots, they among the smartest and insightful people you will ever meet.

Edit to add: A comment about the primary caregiver claim, if both parents worked, a judge would find it obvious that there was no primary parent. Of course it is still your responsibility to point this out, and back up what you say, for example by pointing out both work schedules throughout the relationship. Also point out activites that each parent did with the child individually, the bond the child had with each parent, who cared for her on sick days, etc. Show that it was equal or one-sided, but show it, don't just say "I was the primary caregiver" or "She wasn't the primary caregiver" and leave it at that.
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Old 05-06-2010, 08:04 AM
cate cate is offline
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Default such a great help

thank you for all of your replies. i am hoping and asking the universe for a supportive judge who can see through the bullshit, sorry i mean arguments. :-) what i've read is that it is in the best interests of the CHILD and not bringing up factual and non factual stuff that went on between two people 10 years ago. friend has ONLY ever stated what was best for the child and i am hoping i this works in her favour. there has been some legal advise but not so much but that most important advice was to not ever ever ever ever create confict. take the high road, as hard as it is. it sure is natural to want to defend oneself. shocked and dismayed at the behaviour of the lawyer(s) involved. incite conflict, creat a big fight and no joint custody will be awarded.

the child is so happy and doing wonderfully. she knows excatly who her parents are and loves being with them both. it would be a shame that a self abosrbed mother would be able to destroy this. but what goes around comes around and if this was ever to be the case, she will be dealing with one traumatized devestated child.

i suggested my friend bring along reports cards and such just stating how well the child is doing. i will pass along this information.

thanks again. any other advice is welcome!
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Old 05-06-2010, 08:08 AM
cate cate is offline
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thanks tugofwar.....what little advice my frined has received was exactly what you state. take the high road, avoid avoid avoid avoid ALL conflict and give the selfabsorbed ex whatever she asks for. her documents are 'shit' and state nothing about the child. and when you say parenting plan - do you mean friend should outline what she does as a parent?
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