Part 2 of our series about Family Court.
In this post, we’ll continue to provide thoughts as to why you might consider taking an attorney with you if you should be requested, or are requesting an appearance in family court.
There are two ways that you may find yourself in a family court: either you petition the family court yourself or someone else petitions you. If you are not the person starting the family court proceeding, then you are called “the Respondent.” If you are starting the proceeding, then you are called “the petitioner”. The petitioner may also be the Department of Social Services or another agency who is concerned about the well being of a child. Petitioners and respondent are often referred to as “the parties”. You do not need to have an attorney to file the petition and at present, there is no cost to file a petition. All family courts keep sample forms available to the public that can be filed out.
Under certain circumstances in custody, child abuse or neglect proceedings, and in family offense proceedings, the petitioner can also obtain a temporary order from the judge on the day he/she goes to file the petition. That temporary order may contain directives about custody or may consist of an order of protection with directives about conduct and behavior. The temporary order is not intended to be the final result, but rather is intended to provide for a child or petitioner’s immediate safety and well being until further proceedings take place. These are called “ex parte” orders because they are granted with only one person having appeared in court. However to obtain them, the court will often require testimony from a party. You may be frightened, nervous and not sure what to say and thus may not get the information to the judge because you are unprepared and not aware of what facts are important. At attorney can not only guide you but also prepare you for this.
In addition, if you are the party against whom an ex parte order has been granted, you will have a right to see the petition and the temporary order and you have a right to be heard on the matter. Most courts will attempt to place a matter on the calendar quickly if a temporary order is granted with only one party present, however sometimes that can be weeks later. An attorney can assist you with trying to expedite or move up the court date if the temporary relief is extremely burdensome. In addition, many individuals don’t understand how serious a temporary order of protection is. An attorney can explain the consequences of the order and field questions about what you can and can’t do.
Finally, the family court judge or support magistrate you appear first in front of is most likely the individual who will handle your case throughout. When you first appear in front of the court, you will be asked about the petition, if you are the Respondent, and whether you agree or disagree with it. You have the right to disagree. However many people not only disagree, but then continue to say and/or do things in court they should not. This can make a poor impression for you and can impact the outcome of your case. I have seen more than one litigant, who did not have an attorney, go into a tirade, screaming about the other party in front of the judge, arguing that an order of protection was not warranted. If you were the judge and you were deciding on whether or not to continue a temporary order of protection to protect someone’s safety, how convincing do you think those individuals are? If you have an attorney speak for you, the court receives the appropriate information it needs to make its decision and you have an advocate speak for you.
Source: Westlaw – Callagan’s Family Court and Law Practice New York