THE RIGHT TO DUE PROCESS

This may be a surprise to those of of you who are caught in the jaws of a high conflict divorce against an abuser where you face injustice daily, but you actually have a constitutional  right to "due process" when you are in court. 

According to the free dictionary dot com, this means that you have "A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property." 

It also includes "a constitutional guarantee that a law not be unreasonable, arbitrary, or capricious." 

The right to due process has its basis in the due process clause of the 5th Amendment (ratified in 1791) which asserts that "no person shall be deprived of life, liberty or property without due process of law" and applies to the actions of the Federal Government.  The due process clause of the 14th Amendment (ratified in 1868) limits the actions of State Government declaring "Nor shall any State deprive any person of life, liberty, or property, without due process of law."   

Apparently, according to the free dictionary dot com, the concept of due process originated in English Common Law with the rule that "individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves." 

This concept reappeared in The Magna Charter signed in 1215 by the infamous King John and stated "No free man shall be seized, or imprisoned...except by the lawful judgment of his peers, or by the law of the land." The phrase "law of the land" was eventually replaced by the phrase "due process of law" and, by the 17th century, the American Colonies were incorporating the phrase "due process of law" into their legal statutes.  

From there the concept of Due Process is then divided into categories:  1. substantive due process and 2. procedural due process.  Substantive due process has to do with creating, defining, and regulating the right to due process, whereas procedural due process has to do with enforcing those rights or seeking redress when they are violated. 

So, why am I bringing this up? 

Well, I am bringing this up because due process is violated all the time when you are in Connecticut Family Court and I want you all to know what it is so you can protest when a violation of due process occurs in any of your cases.  If you do, you may get some very successful results.  Because, after all, let's be reasonable, the judge knows all about due process too.  It's just he was hoping you wouldn't know anything about it.  Once you show that you are familiar with the concept, my best guess is he or she will at least try to behave a little bit better.

Like many of you, I was so ignorant when I started out in family court that it went right over my head when I was denied due process, and it only occurred to me that my right to due process was being consistently violated after a couple of years had gone by in my case. Once I started to speak up and point out that my due process rights were being violated by such behavior, that's when the incidents were, not totally stopped, but at least reduced substantially.

Just so you don't have to wait a few years like me before you figure out what due process is, here are some situations where you can find your right to due process violated and you need to protest. 

How about, you walk into Court for a hearing on child support and the opposing attorney hands you a Motion to Reconsider Alimony (or something like that) within minutes before the hearing and then demands that the Judge discuss the motion, even though you haven't ever had a chance to see it before. 

How about, you are actually in the middle of a hearing, and the opposing attorney starts to hand out a Motion on a totally different issue, sometimes even accompanied by a Memorandum of Law and you have never seen either before.  Wait a minute!  You have the right to due process, which means that if you haven't seen a motion or memorandum of law prior to the hearing, you have the right to request a continuance so that you can prepare your response. 

Absolutely. 

How about, you are in the middle of a hearing and the witness on the stand begins to make accusations against you and you have never heard these accusations against you before.  Again, you have the right to have the opportunity to prepare your response to any new accusations and so you can request that the hearing be discontinued until you have the opportunity to prepare a response to the new accusations that you haven't heard before. 

In other words, in the State of Connecticut, according to Costello v. Costello, 186 Conn. 773, 776-777, 443 A.2d (1982) "It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved."

Litigants, supposedly--I mean this is Connecticut Family Court, after all, where junk happens all the time--can't bypass the rules, they can't jump ahead of the procedural line in order to railroad their opponents so that they end up losing life, liberty or property.  That is what is meant by fairness. 

Every time you go to court, think about fairness, think about what the regulations state about how matters are to be handled.  Is what is happening unreasonable?  Is it arbitrary? Is it capricious? Do you feel that you are being bullied and pushed around?  If so, speak up!  Consider using the right to due process as a means to fight back!  Say, "Your honor, what is going on here is a violation of my right to due process because..."  Hey, it never hurts to try.  Trying is what it is all about!