What Are My Chances If I Go To Trail?

What are my chances of winning at trial? I have many clients ask me that question. I like what James J. Gross an attorney tells his clients. He quotes Hans Solo and then gives a list of obstacles that demonstrates why it is hard to answer that question intelligently.

“Never tell me the odds, Kid.” That’s what Hans Solo said to Luke Skywalker just before they flew through the asteroids in Star Wars.


First, the Code of Professional Responsibility prohibits me from giving you percentages, because each case is unique with its own set of facts.

Second, the judge weighs the testimony and credibility of the witnesses, and there is no lie detector at the bench.

Third, the judge doesn’t always get it right.

Fourth, you might win or you might lose, or it might be something in the middle. Usually there is a least one thing in the judge’s decision to feel bad about.

Fifth, my crystal ball is cloudy.

Sixth, two judges trying the same set of facts, will give different opinions.

Seventh, judges have their own filters, feelings, history and perceptions. Did the judge have an absent father and nurturing mother? Is the judge divorced and mad about having to pay alimony? Did the judge have a good breakfast or an argument with their spouse on the morning of your trial?

So your chances of winning? It all depends.

An Interesting Case: Is Drug Use Ok Prior to Visitation Acceptable?

In a recent case in the New Jersey Superior Court, Appellate Division, Case Number: A-2571-10T4, filed: December 21, 2011 declared that not all instances of drug ingestion of a parent will serve to substantiate a finding of child abuse or neglect. The court was addressing a case involving a father with supervised visitation with his daughter due to charges of assault and child abuse.

The Division of Youth and Family Services had obtained an order restricting the father's contact with his daughter to division-supervised visits. He was also ordered to attend substance abuse treatment and submit to urine testing.

At supervised visits, the father tested positive for cocaine and marijuana, and later admitted using such drugs two days prior to the visits. (The test results came back several days after the visits, which the visitation supervisor reported were uneventful, with the father acting appropriately and showing no signs of impairment.)

Finding that the father had not fully cooperated with the recommended drug treatment, the trial court held that he had exposed the 11-year-old daughter to a substantial risk of harm during the visits by testing positive for cocaine and marijuana, and concluded that the division had proven by a preponderance of the evidence that he had neglected her.
Reversing, Judge Ellen L. Koblitz accepted the trial court's factual findings, but disagreed that such behavior inherently created a substantial risk of harm to the child. The Court of Appeals noted that the Division reported that the father behaved appropriately at both supervised visits and demonstrated no indicia of impairment. Thus, the State had not demonstrated any risk, let alone one of a substantial nature, to his daughter.

“Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.”

“We recognize that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired. However, Title 9 [incorporating the state child abuse statutes] is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

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When is the Best Time to File for Divorce?

Everyone facing a divorce will wonder to some extent if it's the right time to file. I read an interesting article in the county bar’s newsletter written by an attorney, and he says that if any of the following conditions exist, you should seriously consider filing for divorce – after seeking legal advice.


1. Violence. If there has been violence directed against you or your children, you probably need to get out. You may be able to get your spouse kicked out, but you should take whatever steps are necessary for the safety of you and your kids.

2. Abandonment. If your spouse has left, that's a pretty clear signal that the marriage is over. You should file to protect yourself financially and to take care of your kids (if you have any).

3. Hiding of Assets. If you discover, or suspect, that your spouse is hiding assets from you.

4. Wasting or Disposing of Assets. If your spouse is spending money irresponsibly or getting rid of assets, you need to put a stop to it.

5. Your Gut Feeling. Sometimes you just know that the time is right. You may not be able to put your finger on a specific reason or cause, but you know it's time.

6. Counseling Doesn't Work. You've tried counseling and you just didn't get the issues resolved. Often the party not initiating counseling is resistant and won't put in the effort to make changes. It's usually a good idea to try working with a counselor, but (as you undoubtedly know) you can't make your spouse change unless he or she wants to.

7. Hiding the Kids. If this is going on, you need to act right away.

8. Alienating the Kids. This is less obvious, but you may start seeing signs if the kids suddenly start avoiding you or saying hateful things to you. You need to get into court, get the kids into counseling and get some controls over your spouse. It is very difficult to stop and undo such behavior.

9. Running Away. If your spouse has run away with the kids, you need to get into court and get an order to get the kids back. You don't want to wait and allow your spouse to establish legal residence somewhere else.

10. Spouse is About to File. If you find out your spouse is about to file for divorce, you need to decide whether to try to beat your spouse to the courthouse or just prepare for a first court hearing.

Hopefully, this list will help you think about the decision of when to file.

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Tips for Self Representation in Court: The Objection

By: Susan Minsberg

The purpose of a deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible. Rather,can it lead to admissible evidence?

• Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is so far afield, a relevance objection may be warranted.

• Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition.

For example, if you ask the deponent, “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. You can determine based on the answer whether you should take Jane’s deposition and you can then ask Jane directly.

If Jane’s testimony is important, you can call Jane as a witness to testify at trial.

• Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence.

• Calls for an opinion. You do not need to lay foundation to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion. Those answers can lead to discoverable evidence.

• Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections.

Objections should be stated succinctly in a non-argumentative and non-suggestive manner.

Privilege. This is the big one. It must be made or it is waived. This covers any privilege such as attorney-client and physician-client. You can ask, “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is the one rare case in which a deponent should be instructed to refuse to answer.

• Form of the question. This objection is usually asserted to make a clear record. For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.

• Mischaracterizes earlier testimony. This is also to make sure there is a clear
record.

• Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.

• Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.

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Consider Fairness After Divorce

By BERNEY WILKINSON

In my last column, I presented one of the most common pitfalls following a divorce. Today we will focus on another issue related to parenting following a divorce.

Last week's issue related to how much time the children spend with each parent. This often creates a great deal of strife, stress and frustration for the parents and the children. Children do not always understand they cannot do something because it would cut out "time" they would spend with their mom or dad.

In fact, when I talk with these kids, they often say "all we do is sit around the house anyway, why can't I go do something that I want to do?" The kids have a point. However, because parents are so hung up on time, they cannot see what it is doing to their children. The parents get stuck on the issue of fairness, which just so happens to be the second pitfall.

Though related to the issue of time, the issue of "fairness" often complicates life following a divorce. For parents, fairness usually includes two things: time-sharing and money. In regard to time-sharing, parents often voice the same issues discussed last week related to time. That is, the most "fair" time-sharing schedule is 50/50. While that schedule works very well for some children, it is not at all recommended for others. Many children need consistency that includes sleeping in the same bed more nights than not.

When parents are so stuck on fairness, they have difficulty seeing what is best for the child, as opposed to what is "fair" for the parent. In these situations, I remind parents of life before the divorce.

Prior to the divorce, how much time each night did each parent spend, one-on-one, with the child? Probably not a lot of time, unless they were helping him/her with homework or eating dinner together.

Most of the time, the child is playing (outside or with video games) or doing homework between the time they get home from school and preparing for bed. I have never met a parent who spends four hours of one-on-one time each night with their child. It just does not happen.

So why is it such an issue after the divorce that parents are willing to have an ongoing court battle over it that could last years? It just is not healthy for the child.

The second issue of "fairness" relates to money. As the family dynamics change, so do financial resources for the respective parents. While one parent may have the ability to take the children to Disney, the other may not. While one parent can buy the children "everything they want," the other parent may be financially limited. When these situations occur, I often hear from parents claiming, "My son's father buys him whatever he wants, and I can't. He is trying to turn my son against me." To these parents, I find myself saying, "You're right, it is not fair. But who ever said it would be?"

Nothing about these situations are fair, they just are what they are. If the father (or mother) is able to turn the son against the other parent by buying him things, work needs to be done on the parent-child relationship. But that is not necessarily the other parent's fault. Does that happen? Sure, there are times when the intent is to jade the child in one direction or another. But that is not typical.

When it comes to "fairness" after a divorce, parents must consider what is "fair" for the child. Is it "fair" the child has to split his time between his parents? Is it fair the child does not get to sleep in the same bed every night? Is it fair the child feels pulled in two directions because he wants both parents to be happy?

Parents are encouraged to consider how their personal views of fairness may affect their child (positively or negatively). What may feel fair to them may be unfair to the one who did not have a choice in the divorce.

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Grandparents Visitation

One of the most important issues facing families these days is the issue of grandparents' rights with respect to their grandchildren. In some situations, grandparents seek to have visitation with their grandchildren and in other situations, they seek to have full custody of the children instead of the natural parents.

When a grandparent seeks visitation with a grandchild in Arizona , such a request is made pursuant to the law. In considering a request for grandparent visitation, the Court must consider if the requested visitation is in the best interests of a child. A grandparent can only request visitation if they meet one of the following three situations: if the marriage of the parents of the child has been dissolved for at least three months, if a parent of the child has been deceased or has been missing for at least three months, or the child was born out of wedlock.

In determining what amount of visitation, if any, is in a child's best interests, the court must also consider the historical relationship, if any, between the child and the person seeking visitation, the motivation of the requesting party in seeking visitation, the motivation of the person denying visitation, the quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities, and if one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

Under Arizona law, the family court must also apply the presumption that a fit parent acts in his or her child's best interest in decisions concerning the child's care, custody and control, including decisions concerning grandparent visitation. Therefore the court must give special weight to a fit parent's determination of whether visitation is in the child's best interest.

If a grandparent wishes to seek custody of a minor child, such a request can be filed in the family court. In order for a grandparent to be awarded custody or a minor child, the court must find that the grandparent stands in place of a parent and that the child and grandparent have formed a normal child-parent relationship, that It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody, and that the parents were not married to each other or one of them is deceased. If a person other than a child's legal parent is seeking custody there is a reputable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

For more information visit DiscountDivorcePro.com or call 602-896-9020.

Understanding the Differences Between Sole Custody and Joint Custody

In a divorce in Arizona, the way that legal custody is structured will ultimately have a significant impact on how future decisions affecting children will be made. Physical custody impacts where the child will live. Legal custody impacts day-to-day decisions such as health care, religion, education and other major issues. Custody arrangements may also impact visitation rights, child support and other matters.

Understanding the differences between sole custody and joint custody is important for parents going through a divorce or family law matter.

The concept of joint legal custody does not necessarily imply that the time spent with each parent will be equal, but it does mean that parents will consult with one another on important issues pertaining to their children. Parents with joint custody are encouraged to resolve disagreements amicably but may also petition the court to make a decision that is in the best interests of the child when agreement is not possible.

Since the courts in Arizona prefer that both parents have a relationship with their children, sole custody is much rarer than joint custody. When one parent is considered unfit, however, sole custody may be the best solution for the child. Sole custody does not automatically limit visitation rights, but the sole custodial parent is allowed to make the ultimate decisions on many issues even over the objection of the non-custodial parent.

For more information visit discountdivorcepro.com or call 602-896-9020 and speak with a paralegal.

Process Serving in Mexico: Do it Right the First Time

A default order entered against a Mexican father in his ex-wife's action under the Hague Convention on child abduction for the return of their child to Texas is void, where she did not effect proper service of process on him in Mexico. Finding that the mother was required to serve the father in accordance with the Hague Convention on Service of Process Abroad, the court determined that she had failed to serve him either through Mexico's Central Authority or in compliance with the internal law of Mexico regarding service of documents from abroad, as mandated by the Service Convention.

The father filed a special appearance, contending that the order was void because the mother had failed to show proper service of process on him. She acknowledged that he was not served through Mexico's Central Authority, as required by The Hague Service Convention, but argued that he had been served in accordance with the internal laws of Mexico, which allow for service on a party's designated agent.

The Judge held that for the mother to establish that service on the father complied with Article 19 (of the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents), she was required to show that the service she employed complied with the internal law of Mexico providing for service of documents coming from abroad.


In re J.P.L. Texas Court of Appeals Case Number: No. 04-10-00646-CV Date Filed: 11/23/11

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Gambling and Dirty Underwear Lead to Divorce

I came across an interesting case out of a court in Mississippi and thought I would share. Husband's conduct constituted habitual cruelty as ground for divorce; husband committed intentional, often dishonest, and possibly criminal acts, through which he dissipated the parties' assets to fund his gambling addiction, and his sexual and personal hygiene issues rendered the relationship revolting to wife.

The Court found that Husband‘s behavior taken as a whole, constitutes habitual cruelty. His qualifying conduct includes not only his gambling losses of over $300,000, but his series of intentional, often dishonest, and possibly criminal acts, through which he dissipated the parties‘ assets to fund his gambling addiction.

Further, the Court found that his sexual and personal-hygiene issues rendered the relationship ―revolting. Wife testified Husband had ―loose bowels and would often get into bed with her wearing soiled underwear. Wife claimed Husband ―refused to wash, clean up. And this was at least five times a week most weeks. Even after Wife laid out clean underwear for Husband, he refused to change out of his soiled ones. Wife explained the odor was so revolting to her that she frequently slept in a separate room.

Husband also claimed that since Wife accompanied him to the casino about six times, she condoned the vast majority of his substantial gambling debt. However, the Court did not find his argument compelling.