An Overview of Family Court Proceedings
When a person goes to court for a family law case, oftentimes it is important to understand how the court system operates generally. A family law case can be filed in either State Court or Federal Court. Most cases are filed in State Court. You generally have the right to have the case decided in the jurisdiction of residence for the parties. For example, if you have divorced in Texas as a Texas resident, you cannot later file your case in California.
A family law case is divided into several phases or proceedings as follows: The first phase is the pleading phase where a party obtains a family court case number and a judge is assigned to the case. After the pleadings have been filed and served, there is often a status conference or scheduling conference where the judge sets out a schedule for discovery and hearing dates. The second phase is the case management phase where the parties seek to obtain information from the other party by filing written requests for discovery or oral depositions. The third phase is the temporary hearing phase where the parties ask for temporary relief from the judge before the case is resolved. For example , a party may seek child support, visitation or exclusive use and possession of the marital residence. The fourth phase occurs after discovery is completed and most often the parties move the court to strike the opposing party’s pleadings or to seek protective orders if there are public policy issues that need to be resolved before trial. The fifth phase is the mediation phase. The parties attend mediation in an effort to settle the case. If the case does not settle at mediation, the sixth phase is the trial phase. At trial, the parties and witnesses present evidence to the family law judge. In some states, the trial judge may render a decision at the end of the trial or he may take the case under submission and later render his decision on a later date. The final phase is the post trial phase where the losing party can appeal the judge’s decision within certain time limits.
Common Issues Relating to Constitutional Rights
In family court proceedings, grievances about constitutional rights are not uncommon. Unfortunately, this is an area where a lot of misunderstanding occurs, both at the hands of attorneys and law professionals who are supposed to truly understand the law. As many cases involving the alleged violation of constitutional rights will make clear, arguments involving constitutional rights in family court can often be somewhat weak with regards to the actual merit of the argument. Here are some common examples of how constitutional rights might be in question in family court: Due Process- Due process arguments are typically the most common in family court. Typical due process violations, as found in case law, include allegations that specific procedural safeguards were not in place prior to a given ruling. A usual example of this is when one party (often the non-custodial or non-primary custodial parent) alleges that the other party (often the primary custodial parent) did not have proper notice and, thus, their due process rights were violated when the decision was made for primary custody to be awarded to a different party. Freedom of Speech- Family courts do not, and should not, have jurisdiction over the activities performed by citizens in the public sphere. It is well established in case law across the country that a decision based on free speech issues is a violation of citizen’s rights, and that family court and domestic relations courts do not generally have authority to make these decisions. Right to Privacy- There are numerous cases that have found adequacies and inadequacies to the right to privacy. Despite the fact that this is a constitutionally granted right, family courts often struggle in situations where they have to decide on a case involving paperwork that some may find intrusive.
Cases of Constitutional Violations
To add substance to these theoretical violations, we examined a number of recent cases that have either broken new ground or set legal precedents in the area of constitutional rights in family court.
In Davis v. Family Court (No. 42035, 8/29/2000), the Supreme Court of New Jersey held that a trial judge may utilize any of three dispositions available in R. 5:24-10(a) in order to give guidance to a litigant who is held in civil contempt by a judge for the failure to obey a support or custody order. In this case, the language of R. 5:24-10(a) permits three different avenues of restitution of support when there had been a contempt finding. In this case, the path followed was the "purge-type" of nonsupport contempt order, which required the defendant to pay a specified sum with entry of a Civil Contempt finding. Not only is this case significant for the legal precedents set regarding the allowance of purge orders, but also it is a groundbreaking decision in that the Supreme Court of New Jersey used the word "parent" instead of "father," thus acknowledging the modern family unit and the rights of the custodial father.
Morris v. Morris, 2:00-CV-36 (S.D. W.V. 1/28/2002). Mrs. Morris, a physician with three children, was awarded custody of the children. After leaving West Virginia to move to Texas with her children, the trial judge awarded temporary custody to Mr. Morris, the father, and imposed a $10,000 fine for her refusal to comply with the lower court’s order granting him interim custody. The plaintiff appealed the lower court’s ruling. Upon review, the Court determined the trial court had exceeded its discretion. The Court relied on the first Amendment, the Supremacy Clause of Article IV and the Parental Kidnapping Prevention Act (PKPA) to determine the state with jurisdiction over the children. In this case, the trial court relied on it’s own personal disfavor of the fact that the plaintiff fled West Virginia with the children, even though the PKPA specifically prohibited such consideration. The Court of Appeals found that the lower court did not have jurisdiction to modify its original enhancement order, absent a showing of exceptional circumstances required by PKPA.
In re Marriage of Bentivegna, 291 Ill. App. 3d 955, 683 N.E.2d 979 (1997). Plaintiff appealed the trial court’s order, finding her in civil contempt and fining her $500 for violating Support Orders and allowing Mr. Bentivegna visitation, which she adamantly refused to do. On appeal, the court found that the $500 fine for the plaintiff withholding visitation was improper. This decision, in agreement with the Law v. Law case, gave support to the argument that Courts are unwilling to violate Constitutional Rights in order to enforce visitation rights against a non-custodial parent.
Legal Remedies and Avenues of Recourse
There are a few legal recourses for divorcing individuals and litigants in other family law contexts who feel their constitutional rights have been violated by a family court justice. One option is to file an appeal of the family court decision with the Court of Special Appeals. Appeal must be made within 30 days of the order or judgement being entered. The appeal will then be heard at the Court of Special Appeals, which has jurisdiction only over the decisions of state circuit courts, such as family and divorce courts. Almost invariably, this appeals process takes over six months to conclude, and in many cases, appeals never result in a successful reversal of the original order.
If the case involves an issue of interpretation of the United States or Maryland constitutions, then a litigant may seek judicial review from the Court of Special Appeals or the Maryland Court of Appeals (the state’s highest court). A request for review originates in the Maryland Circuit Court, which Recommends or Denies the Petition for Rehearing. In these situations, the review petition is submitted directly to one of the two appellate courts.
Both review options are highly restrictive. For first-degree review from the Court of Appeals, cases must be both a matter of continuing public interest and a significant legal or policy consideration. In practice, almost all first-degree review is limited to matters of public interest, such as redistricting, religious liberty , or capital punishment, that tend to affect large populations rather than seek remedies for individual litigant injustices. Second-degree review of intermediate appellate court decisions is even more restrictive, limited to those involving the death penalty, incarceration for minors, or other significant criminal sentencing issues that may require clarification.
It is important to note that these options may not be available to everyone. For example, under Maryland Family Law Code ยง 12-201, a petition for review of a child custody order or modification of that order may not be filed if the order either involved only temporary child custody; remains in effect for less than one year; could be decided upon by another governmental agency with jurisdiction over child custody issues; had been issued by the child’s home state and not the child’s present state; or is otherwise a temporary custody order. In other words, judicial review is not a remedy in all family law matters and does not result in a new judgment. Instead – usually – Court review is limited to assessing whether the record includes sufficient evidence to support the lower court’s judgment.
Given the various restrictions and time investment often associated with judicial review proceedings, alternative legal remedies may be a more prudent route for litigants who want swift redress in instances where they believe their constitutional rights have been violated.
Preserving Your Rights: Advice for Families
To preserve your constitutional rights in family court, it’s essential to have an attorney who is familiar with all of the relevant case law and who can help you understand what your rights are at every stage of the proceedings. Knowledge is power, and when it comes to matters impacting your liberty, your safety, or your parenting time, you absolutely have to know how the law works.
One way to learn more about your rights is to conduct interviews with potential attorneys. No lawyer will go into the booking a case they plan to ethically abandon; good representation is not abandoning your clients. When you interview potential attorneys, make sure you ask about their experience with cases like yours, how many years they’ve been in practice, how often they’ve been to trial, how many times they’ve won cases like yours, and if they’ve ever lost cases like yours.
Another important part of ensuring that your rights aren’t violated during family court proceedings is to take control now by being as prepared as possible. You must exercise your right to discovery, be present at motions, prepare for trial, attend any depositions that are scheduled, and work with your lawyer to ensure that you have all of the evidence available to you to be successful in asserting your rights in court.
Finally, one of the most critical things to remember when you’re going through family court proceedings is that you must be able to distinguish between what the law says you can’t do and what you may just be able to do pending an investigation. For example, you may not have the right to keep your children from seeing the spouse or ex-spouse who became abusive, but depending on the circumstances, you may be able to move to a different state or take a trip out of the country with your children without getting permission from the court. The law does provide certain protections to victims of domestic violence – protections that aren’t automatically afforded to the abuser just because you were married – and those protections should be exercised to the fullest.
The law is a complex system of rights and regulations, and while the power that you hold as an individual under the Bill of Rights is enormous – and difficult to infringe upon – that doesn’t mean it isn’t important to have someone on your side who can ensure that the law is being followed. Even if you believe that you’re always right, you owe it to yourself to ensure that your case is handled properly by a professional and by a passionate advocate for your rights and interests.
The Promise of Future Constitutional Protections in Family Court
There is hope for the strengthening of constitutional protections in family courts, as advocacy groups and organizations work to raise awareness and bring about much-needed reforms. Recent legislative efforts have aimed to address concerns about due process and ensure that individuals receive fair treatment within the family court system. Some states have implemented laws requiring judges to undergo training on constitutional issues, while others have established commissions to study the problem and develop recommendations for reform. Courts, too, have made strides in recognizing and correcting such subtle, yet significant violations of due process. For example, Florida’s Second District Court of Appeals recently reversed a contempt order against a father who was jailed for failing to pay child support due to a decrease in income, finding that the father’s constitutional rights under the Fourteenth Amendment were violated. Due to a recent move to recede the pocket parts of the Family Law Manuals, it is unclear how many other appellate courts are reversing self-enforcing orders for similar due process violations. However , there are reports from multiple Sixth Circuit Court judges in Florida confirming the existence of similar due process violation issues in their courtrooms. Litigation challenging the constitutionality of family court proceedings continues to be an important tool for protecting individual rights. By raising attention to systemic issues and pushing for reform, these cases help to advance the cause of justice and fairness in family court. In some jurisdictions, there is growing movement among judges and practitioners to adopt best practices that promote due process for all parties involved. This includes improved case management systems, better training for judges and clerks, and increased access to resources for low-income litigants. Despite these steps, there is still much work to be done to ensure that parents and children receive the full protection of their constitutional rights in family court settings. Courts, legislatures, and advocates must continue to work together to identify and address the many challenges that exist in this area. Only then can individuals be assured of truly fair proceedings in their cases.