There are a number of occasions that litigants will choose to proceed pro se (without the assistance of an attorney). However, even if one is represented by an attorney, it makes perfect sense to be as informed about the process as you can possibly be. Many lawyers simply do not have the time or the inclination, to explain every aspect of the litigation process to their clients. So it becomes incumbent on the client to look for resources that can help inform him or her about the court process in general, peruse the forms that are available on line so that they can better assist in the preparation of their case and gain valuable insights as to what options are available to them.
One of the most valuable resources in this regard is the New York State Unified Court System website. The site provides invaluable information about the litigation process (not just for cases in Family Court, of course).
If you have a case in Family Court or are considering filing one, you should take the time to click the link below and inform yourself either before or after consulting with an attorney. Personally, I believe it makes more sense to do it before so that you are better prepared with a basic understanding of what to expect and you and your attorney can discuss the unique strategies and nuances of your case rather than wasting precious (and expensive) time going over basics you can learn yourself.
http://www.courts.state.ny.us/home.htm
Wednesday, September 22, 2010
Monday, September 20, 2010
What To Do When Your Child Is Removed From Your Care
There are few events in your life as frightening and traumatic as having your child removed from your home. During these moments we are confronted with a wide array of emotions, none of them good. There is guilt, fear, anger, frustration, profound saddness, concern and anxiety to name just a few. And while this this an event that will forever change your life, as well as your child's, the change need not all be bad. The thing to remember is that this is emphatically not the time to fly into a rage, act desperate or surrender to depression. To be sure, it is a time for reflection, but from a legal standpoint, it is a time to get organized and prepared. The time for half measures is long since past.
Believe it or not, most state agencies are inclined to return children to their parents sooner rather than later. However, if any, and I mean any, lingering doubts remain about your ability to care for your child, the state agency will always err on the side of caution and oppose any return of the child. That is not to suggest that their refusal to return your child is the end of the argument, but if you are going to challenge their determination in court, you had best be prepared.
The first step any parent should take when facing the removal of their child (or any abuse neglect proceeding even when the child has not been removed) is to start and meticulously maintain a diary. This diary needs to contain an accurate log (dates, times, places) of every event involving your child. These events include, but are not necessarily limited to, visits, compliance with court mandated services, drug tests, interactions with case workers, etc. The list is different for every case and too long to list in its entirety for purposes of this entry.
Suffice to say, you need to be prepared to prove you have done everything that has been asked of you to make your home and/or yourself safe for the children to return home.
In order to do that you need to know, immediately, what services, if any the agency is asking you to complete. Agencies can be particularly slow in offering this information (called "referrals") and so it is up to you and your attorney to be diligent in getting that information (in writing whenever possible) so that there is not a significant delay in the time you are charged with abuse or neglect and the time you begin addressing the issues that led to your child's removal. Many of the programs/services that you will be asked to engage in take weeks or months to complete. Unfortunately, this is often time your child will spend in foster care so it is imperative that you engage in those services as soon as it becomes possible to do so.
Having your child removed is devastating. Getting your child back, requires determination, discipline, preparation and consistency, all of which you and your attorney can and should provide.
Believe it or not, most state agencies are inclined to return children to their parents sooner rather than later. However, if any, and I mean any, lingering doubts remain about your ability to care for your child, the state agency will always err on the side of caution and oppose any return of the child. That is not to suggest that their refusal to return your child is the end of the argument, but if you are going to challenge their determination in court, you had best be prepared.
The first step any parent should take when facing the removal of their child (or any abuse neglect proceeding even when the child has not been removed) is to start and meticulously maintain a diary. This diary needs to contain an accurate log (dates, times, places) of every event involving your child. These events include, but are not necessarily limited to, visits, compliance with court mandated services, drug tests, interactions with case workers, etc. The list is different for every case and too long to list in its entirety for purposes of this entry.
Suffice to say, you need to be prepared to prove you have done everything that has been asked of you to make your home and/or yourself safe for the children to return home.
In order to do that you need to know, immediately, what services, if any the agency is asking you to complete. Agencies can be particularly slow in offering this information (called "referrals") and so it is up to you and your attorney to be diligent in getting that information (in writing whenever possible) so that there is not a significant delay in the time you are charged with abuse or neglect and the time you begin addressing the issues that led to your child's removal. Many of the programs/services that you will be asked to engage in take weeks or months to complete. Unfortunately, this is often time your child will spend in foster care so it is imperative that you engage in those services as soon as it becomes possible to do so.
Having your child removed is devastating. Getting your child back, requires determination, discipline, preparation and consistency, all of which you and your attorney can and should provide.
Saturday, September 18, 2010
Alternatives to Litigation
It goes without say that the person in the best position to make an informed decision about your life is you. This is true whether you're considering a career change, moving or getting a new car. So why, one has to wonder, do people entrust one of the most important decisions of their lives to total strangers?
Nonetheless, that is exactly what happens every time two parents refuse to resolve a case in Family Court and entrust the decision as to how their parenting time will be allocated amongst them. Unfortunately, and more times than not, the judges and referees empowered to make these decisions get it wrong. They do so not because of lack of intelligence or good intentions, but because of the natural constraints of time, they cannot possibly take into consideration all of the myriad variables that confront each person's life. The end result is often a patchwork that seeks to arbitrarily assign parents "time slots".
There are times, of course, when a resolution is impossible either because of one party's intractable insistence on unreasonable conditions, or because the parties have a good faith disagreement as to what is in their child's best interest that cannot be decided without the intervention of a neutral third party. These circumstances are rare, however, and most cases can be resolved provided that the parties are willing. However, this willingness to compromise on emotionally explosive issues is often in short supply.
It is for this reason that at the very outset of my representation of a client, during the initial consultation, the possibilities for an expedited resolution are always explored. This is not to suggest that a surrender is contemplated at the outset, but it is critical to organize a client's priorties and expectations in order to adequately represent them. It is equally critical to assess any realistic avenues of resolution to prevent not just the client, but the entire family, the expense, both financial and emotional, of protracted litigation. I have often found that the longer a case drags on the more likely it is that parties will become emotionally invested in the positions they have staked out for themselves. Time and money spent defending these positions is deemed wasted if they settle for anything less than everything they want.
Mediation, particularly at the outset of the case, is often a compelling alternative for clients and attorneys alike. It gives the parties a chance to air out their differences in an informal forum. This conversation can often, in and of itself, have a powerful ameliorative effect on the parties. It is one of the dirty little secrets that most divorce attorneys know that the easiest way to keep parties at war with each other (and paying their fees) is to keep them at arm's length, which is why many insist that all communications take place through the attorneys. It is a lot easier to be vindictive, insensitive and unreasonable when you do not have to look your former spouse/paramour in the eye. And because it is in the financial interests of the attorney to foster continued litigation rather than reach a resolution, the attorney and client will, whether they realize it or not, find themselves with conflicting objectives.
Mediation also has a practical implication for the attorneys, even if the case is not resolved. It enables the attorneys to narrow the issues confronting the parties considerably while simultaneously allowing them to evaluate the other party's credibility, demeanor and character. This information will prove invaluable at later junctures such as future settlement discussions and/or cross examinations. It will also help the attorneys to understand the other side of their own client's story and therefore gain a broader understanding of the needs of the family. Too often, attorneys approach their cases with tunnel vision, seeing only what their own client sees.
In short, litigation in Family Court is an arduous endeavor for anyone. But it particularly difficult for children who are emotionally ill-equipped to cope with the stressors that confront them in court. Moreover, the lingering uncertainty of where they will live, having to choose between two parents they love and being forced to divulge intimately personal information to a bevy of strangers is unnerving at best, catastrophically traumatic at worst.
As parents, it should be your first priority to try to determine, with or without the assistance of an attorney, how to resolve your family's crisis with a minimum of collateral damage. Settlements made by the parties themselves are almost always the best way to accomplish that.
Nonetheless, that is exactly what happens every time two parents refuse to resolve a case in Family Court and entrust the decision as to how their parenting time will be allocated amongst them. Unfortunately, and more times than not, the judges and referees empowered to make these decisions get it wrong. They do so not because of lack of intelligence or good intentions, but because of the natural constraints of time, they cannot possibly take into consideration all of the myriad variables that confront each person's life. The end result is often a patchwork that seeks to arbitrarily assign parents "time slots".
There are times, of course, when a resolution is impossible either because of one party's intractable insistence on unreasonable conditions, or because the parties have a good faith disagreement as to what is in their child's best interest that cannot be decided without the intervention of a neutral third party. These circumstances are rare, however, and most cases can be resolved provided that the parties are willing. However, this willingness to compromise on emotionally explosive issues is often in short supply.
It is for this reason that at the very outset of my representation of a client, during the initial consultation, the possibilities for an expedited resolution are always explored. This is not to suggest that a surrender is contemplated at the outset, but it is critical to organize a client's priorties and expectations in order to adequately represent them. It is equally critical to assess any realistic avenues of resolution to prevent not just the client, but the entire family, the expense, both financial and emotional, of protracted litigation. I have often found that the longer a case drags on the more likely it is that parties will become emotionally invested in the positions they have staked out for themselves. Time and money spent defending these positions is deemed wasted if they settle for anything less than everything they want.
Mediation, particularly at the outset of the case, is often a compelling alternative for clients and attorneys alike. It gives the parties a chance to air out their differences in an informal forum. This conversation can often, in and of itself, have a powerful ameliorative effect on the parties. It is one of the dirty little secrets that most divorce attorneys know that the easiest way to keep parties at war with each other (and paying their fees) is to keep them at arm's length, which is why many insist that all communications take place through the attorneys. It is a lot easier to be vindictive, insensitive and unreasonable when you do not have to look your former spouse/paramour in the eye. And because it is in the financial interests of the attorney to foster continued litigation rather than reach a resolution, the attorney and client will, whether they realize it or not, find themselves with conflicting objectives.
Mediation also has a practical implication for the attorneys, even if the case is not resolved. It enables the attorneys to narrow the issues confronting the parties considerably while simultaneously allowing them to evaluate the other party's credibility, demeanor and character. This information will prove invaluable at later junctures such as future settlement discussions and/or cross examinations. It will also help the attorneys to understand the other side of their own client's story and therefore gain a broader understanding of the needs of the family. Too often, attorneys approach their cases with tunnel vision, seeing only what their own client sees.
In short, litigation in Family Court is an arduous endeavor for anyone. But it particularly difficult for children who are emotionally ill-equipped to cope with the stressors that confront them in court. Moreover, the lingering uncertainty of where they will live, having to choose between two parents they love and being forced to divulge intimately personal information to a bevy of strangers is unnerving at best, catastrophically traumatic at worst.
As parents, it should be your first priority to try to determine, with or without the assistance of an attorney, how to resolve your family's crisis with a minimum of collateral damage. Settlements made by the parties themselves are almost always the best way to accomplish that.
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