MISSED THE DEADLINE? OH, WELL!

I went to my post office recently, and when I opened my box it was only to find it completely filled with a large manilla envelope.  Investigating further, I discovered that it had been sent to me by the court. 

What I'd received were multiple copies of a recent motion I'd submitted to the Court along with the notification that the motion was rejected because I had missed the deadline in which to file it. 

So, instead of just throwing them all in the trash and sending me a letter to let me know, the clerks had sent each and every copy back to me with the date stamps crossed out.

That was an eyeball rolling moment for me.  I mean, couldn't they have at least saved the state the postage?  No, I guess they wanted to let me have the honor of throwing my motion as well as all the copies of the motion in the garbage. 

This motion, by the way, was a motion requesting correction of false and misleading statements that a judge had made in an order in my case.  "False and misleading statements!  Made by a judge!",  you say, "How is that possible!"  Well, trust me, it is possible.  It is possible all the time.

What bothers me is, how can there possibly be a deadline on telling the truth.  The IRS has no deadline on reporting fraud, and that is for good reason.  Fraud is timeless.  So, in my opinion, is the requirement that we adhere to the truth in all statements made on documents created by or presented to the courts.  That is, or should be, a timeless requirement.

So, what did I do about this situation?  Well, I was grumpy and annoyed for the rest of the day.  I mean, I put a lot of time and effort into writing that motion and going into town personally to submit it to the Court.  And, it seemed, all that effort had gone for nothing. 

At that moment it appeared to me that I was going to lose my opportunity to make an important legal point and all because I wasn't watching the darned calendar and made a simple technical mistake.  I'm sure lawyers have all sorts of stories like this where a technical mistake lost them multiple thousands of dollars and it happens to them all the time.  But I am not a lawyer.  I have only this case, my case, and I don't want to lose ground simply because  I missed a stupid deadline. 

Our court system is rife with corruption, as I have explained, and they have numerous ways to evade and avoid litigants such as ourselves who are simply trying to obtain justice.  But in this absurd way, the court system is very systematic and meticulous about how they go about their business, which is a factor that we can take advantage of.  So while there are technicalities that can tie our hands, there are others that can release them.  This means that even though I missed the darned deadline on this motion, I still have the opportunity to file a "Motion For Permission to File Late" and ask the court to agree to accept my earlier motion even though it was late. 

This is the point when it comes to the legal system, if you are blocked off in one way of resolving your problems, there is always another way to go about it, if you have the time and patience.  The best thing to do first is to go to the Clerk and tell the Clerk was happened and ask him or her what to do.  Half the time, they know, or if they don't, they have a good idea of where to look for an answer. That, of course, is assuming you have used common sense and your natural charm to develop a good relationship with the clerk. 

So, there you go, folks, miss the old deadline, file a motion to be excused from the deadline.  It may not always work, but it is worth a try!

APPELLATE COURT: MOTIONS FOR AN EXTENSION OF TIME!

This summer I was traveling out of state when I received a phone call from a friend who was monitoring my mailbox.  He told me that I had received a motion from the opposing attorney in regard to my appeal and that my response needed to be in before I could get back home. 

Deadlines are a particularly important matter in appellate court where they like to keep things moving.  So, what could I do?  I wasn't anywhere near a computer or any of the  documents I needed to write a response.  That answer is, I could file a "Motion For An Extension of Time". 

The most amusing aspect of filing a motion for an extension of time is the court's requirement that you ask the opposing counsel in your case to agree to one.  First off it is a pain in the rear end to approach the opposing counsel with your proposal, and second that counsel is wholly unlikely to agree.  That is WHY you are in appellate court.  Hello!  Chivalry is dead. In my day, I have never had opposing counsel agree to an extension, although, let me tell you, I have allowed opposing counsel extensions of time.  That's because I am a really, really, really nice person.  Ok, I won't go overboard, I'm just a nice person.

Anyway, the format for a motion for an extension of time is in section 6, page 12 of The Handbook of Appellate Procedure made readily available by the Clerk's office at appellate court.  Go get a copy of this book immediately! 

A Motion For An Extension of Time starts with a specific statement of what you need, i.e. an extension of time until such and such a date.  Then it breaks up into three sections as do all motions submitted to appellate court--1) Brief History of the Case; 2. Specific Facts Relied Upon; and 3) Legal Grounds.  Usually your specific facts includes your reasons for requesting the extension of time.  Then your legal grounds would be something like, "The movant relies on Practice Book Section 66-1 which permits the chief clerk to grant motions for extension of time upon a showing of good  cause.  The specific facts demonstrate good cause for a ____ day extension of time. 

Overall, based upon P.B. Sec. 66-1, a motion for an extension of time must include this information:  A.  the reason for the requested extension; B.  a statement indicating whether other parties in the case consent or object (as I said); C. a statement re the current status of the brief or motion in the case to which your extension refers;  D.  the estimated date of completion of the brief or motion to which your extension refers;  E. a demonstration of good cause; E.  certification to all counsel and pro se parties of record based upon P.B. Sec. 62-7 and F. a certification that the formatting of the document is correct pursuat to P.B. Sec. 66-3. If you are worried about meeting these requirements and having the correct format, you have the option of getting sample copies of this motion from the clerk's office at the appellate court the next time you are there.  They usually hand them out with the "Handbook".

You may wish to run by a clerk your reason for requesting an extension to be sure the basis for your request meets the standard of a good cause.  There could be scheduling conflicts with other legal matters going on in your case, the fact that your case has complex issues which make it difficult for you to write your motion, personal reasons such as a medical problem or vacation plans, or any number of things. 

My best advice to you when you bring the matter up with the clerk is to be honest and straightforward.  Overall, I have experienced a general attitude of cooperation from the clerk's office when I have made these kinds of motions so there isn't any particular need that I see to play around. 

When it comes to how much of an extension you need, I generally double the time period I have to respond.  So if I have ten days to respond to a motion, I make the extention of time another ten days. 

You want to be sure to get your request in before your brief or motion is due; otherwise, the clerk is required to deny your motion and you will have to file a different document called a motion for permission to file late.  In the last minute, I have received permission from the clerk over the phone which I then followed up with a motion the very next day.  But I wouldn't try to push your luck in that way that often. 

One final point, how many copies of the document you need is always a big point with the appellate court.  Keep in mind that you are only required to file with the court one original copy of your motion for an extension of time. However, you'd be an idiot if you didn't get a stamped copy for yourself, so make sure you get one. After that the opposing side has five days within which to respond to your motion and then you will get a decision, hopefully in your favor.

So, there you go, folks.  For those who procrastinate or those who are avoidant or overwhelmed, etc., you are now aware of what to do to give yourself some extra time.  Use the knowledge well.

YOUR PSYCHIATRIC RECORDS: HOW CONFIDENTIAL IS CONFIDENTIAL?

Within the first few days of my filing for divorce, my attorney wanted to speak to my therapist just to get a sense of what kind of person I am.  Not long after that, the guardian ad litem in my case insisted that I sign a release giving her permission to speak to my therapist, and subsequently the custody evaluator asked for a release as well. 

The information which my therapist provided to these people played a major role in directing the outcome of my divorce for better and for worse. 

My guess is that if anyone knew the extent to which psychiatric records could be used against them in a court of law, no one would ever see a therapist, or at least, no one would ever let it be known that they see a therapist.  Calling into question your mental health is one of the primary weapons attorney's use in family court.

So what can you do about this? 

The first thing to keep in mind is the fact that you have a statutory right to confidentiality in regard to your private mental health records based upon CT General Statutes Section 52-146e and Rule 501 of the Federal Rules of Evidence, both of which protect the confidentiality of communications between a patient and her psychiatrist.  This is a privilege that is generally considered to be so important that it is recognized in all of the fifty states including the District of Columbia. 

This was affirmed in Jaffee v. Redmond 518, U.S. 1 (1996) where the court stated, "the psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.  The mental health of our citizenry, no less than its physical health, is a public good of transcendant importance." 

Fundamental to the treatment of mental illness is the understanding that it is based upon confidentaility.  Thus, in Jaffee v. Redmond the court stated, "Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment. 

Despite these protections, there are times when an opposing attorney can obtain copies of your mental health records if the court rules that the value of disclosing such information is in the interests of justice.  Still, in Jaffee v. Redmond the court recommended that this exception be very limited stating, "Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." 

If there were a situation where there appeared to be compelling reasons to allow disclosure of private medical records, the likelihood is that the judge would first review the records in camera (in his chambers) in advance to see whether the records had any evidentiary value in the case.  If they didn't, then the disclosure of the material would not be allowed.  Of course, just having the judge who makes the final decision reviewing the material could be prejudicial against your case, particularly since most judges aren't mental health experts and could misinterpret the contents. 

What you need to take away from this discussion is simply that if the opposing attorney asks you to give him copies of your medical records, you are absolutely not required to agree to do so.  In fact, the law supports you in refusing.  If the opposing attorney demands you turn them over, you can simply file a motion for a protective order.  This cannot protect you, however, from a whisper campaign that calls into question your mental health without any evidence to base it on.  That is a much tougher task to handle.  But  to start with, you have the law on your side if you wish to keep your medical records private during divorce proceedings. 

Another point I'd like to make is that if you have a therapist you can trust, if that therapist is loyal to you, he or she can simply refuse to provide any information to the court or to any attorney despite any court orders or requests.  Many therapists have taken just this stand.  Before you get into your divorce, or as early on as you can find out, establish an agreement with your therapist as to what will happen should this situation arise.  At least that way you will know where you stand.

COMMENT REGARDING APPELLATE COURT

I have had folks mention to me that their appeals were sumarily dismissed by the appellate court, that they had no opportunity to submit a brief or present an oral argument.  Please keep in mind that this does not mean the end of the road for your case.  That is exactly the kind of situation where you move forward first with a motion for reconsideration, and if that fails, then with the petition for a writ of certiorari. Again, as I have said, it ain't over until its over.

ARGUMENT BEFORE THE APPELLATE COURT

It was bound to happen eventually! After all my conversation regarding my appeal, I finally ended up before the appellate court arguing my case.  How was it, you want to ask? It was awful, it was gut wrenching, it was exhiliarating, it was unbelieavable--all of those things. 

To be honest, I wasn't exactly looking forward to it.  I did everything I could think of to avoid the awful moment, delaying assignment to the calendar with various excuses, pretending to myself I couldn't remember it was upcoming on the agenda--all sorts of things. 

Finally, the bad day came, however, when I received notification from court of the day and time of my hearing.  I have to say the appellate court clerks are really fair about assigning you your hearing date.  They send a letter to both parties well in advance asking you to let them know what dates may not work out for you. Once they have a day, they send you a little yellow booklet in the mail listing when you are supposed to appear. 

Again, I was in an avoidance pattern so I waited until a few days before my hearing to do what you really have to do, which is, visit the appellate court well in advance. If you are smart, you do that for several days so that you can get an understanding of how it works. 

The appellate courthouse is located at 75 Elm Street in Hartford.  This means that you get off at Capitol Avenue, turn left, drive towards the Bushnell Center, turn left on Trinity and a quick right onto Elm Street.  If you pass the Bushnell Center, you've missed your road.  Parking is a bit problematic, but not impossible.  

75 Elm Street is a small building with a modest exterior and a rather 1920s faded splendor on the interior.  Security is right there when you walk in.  There is a waiting room for attorneys and self represented parties on the left.  You walk through two heavily sealed doors to enter the courtroom itself.  The ceiling of the room is extremely high with lengthy draperies surrounding each window.  The judges sit at a desk shaped like a horseshoe.  In front of the horseshoe, there are two desks and two podiums placed at a respectful distance away.  That is where the attorneys and self represented parties stand up to argue their cases. 

Behind them is a horseshoe of chairs placed there for the litigants and for any other attorneys to sit.  I did ask if some friends of mine unrelated to the case could sit there and just give me moral support, but I was told no, they had to sit in the rows of chairs made available to members of the audience behind the second horseshoe for parties and additional attorneys. 

If you can envision it, there was direct access for parties and their attorneys straight ahead through the sealed doors, but there were also two doors to the left and right leading to ailes which the clerks could use in order to speak to the judges or hand papers to them if necessary. 

The appellate court takes a big break in the middle of the day so you have from 10:00am to 12:00pm and then from 2:00pm to 4:00pm. 

Ironically, the first case I listened to when I came in to observe was one in which an obvious abuser was arguing his case.  Apparently, he had been obstructing in his case in trial court and in appellate court for quite some time with various objections and appeals and he had also spent a couple of years in jail for failure to pay child support as well as other wrongdoing, even though he was clearly wealthy enough to actually not be a schmuck. 

I found it amusing that when the opposing attorney pointed out this guy's wrong doing, he responded with "You can't judge me on the basis of my checkered past!  Fair is fair."  I'm like, to myself, "Oh no!  You can't! You'd be surprised."  Still, I took the phrase down just in case my past comes up. 

I was the only person sitting in the audience that day, and my guess is that is pretty much the case all the time.  Despite the plethora of seating available to people in the appellate court, very few people actually come to see what is going on.  This means that decisions of tremendous magnitude that will affect the well being of so many people once they are made take place in a sleepy, out of the way place that no one ever visits.  The irony in that is quite striking.

Another one of the cases I found interesting was an appeal from a murderer, and a few members of the victim's family came to hear it.  They were dressed in suits and ties, and every once in a while one of them would bite his lip and look down.

I was all over the place preparing for my hearing.  I took a look at my brief and my reply brief.  I looked over the case law one more time.  I tried to take some notes and by the time I was done I put together a four page double spaced statement.

They actually tell you not to do that because you are supposed to look the judges in the eyes and speak directly to them.  The advice I've heard is that you should just put some of your notes on index cards and refer to them if you need to.  I read off my prepared statement, but by then I had it memorized so I didn't need to look down at it that much.  

As the appellant, I had to go first, and I have to admit I was so upset and uncomfortable that I spent several minutes just hemming and hawing, shuffling my papers and shifting notebooks around, but once I got going, my conviction took over and I did just fine. 

In an appeal, each person gets twenty minutes to argue their position and then the appellant gets an additional ten minutes to respond to the appellee, the opposing side.  As the appellant you can choose to use up those ten minutes in your initial statement and choose not to reply to your opponent.  The judge will ask you to let them know how you want to handle your argument up front before you get started.  You pretty much talk until your time is up. There is a small box in front of you which flashes a right light to alert you to the fact that your time is up. 

Once I got started with my argument, I had around ten minutes of speaking from my prepared remarks before the judges started in on questions and completely diverted me from what I had to say.  Then I sat down as the opposing attorney conducted her argument.  

I spent a bit of time with this lawyer and I was very satisfied to follow advice she had given me which I paid good money for two years ago, and I made sure that I focused on writing good notes of what she had said as she spoke.  Then when it was time for my reply, I jumped up and read through my notes and gave pointed responses to her arguments.  Always, and I say, always, observe what the opposing  attorney does and learn from his or her techniques.  It is always beneficial to you in the end.  Again, the judges interupted me with their questions. 

I was satisfied overall that my responses were good.  One of my answers was on the weak side and I felt disappointed when I thought about it later on.  What can I say.  In life you win a few, you lose a few, and hope for the best.

Basically, once you have gone through a trial, written up motions for articulation, motions for rectification, motions for review in the case, and once you have written your brief, and your reply brief, you pretty much have the case by heart.  So the reality is, the best preparation for your argument in appellate court is a good night's sleep, a good breakfast (or lunch depending) and the support of good friends.  Before you know it, you are done and you are walking out the door. After that all you can do is wait for the ruling, which, as I understand it, I will receive by email in a thoroughly modern manner.  If I lose, am I done?  No, not at all. That's what supreme courts are for!

PASSPORTS FOR THE KIDS IN A HIGH CONFLICT DIVORCE

Now that summer is around the corner, I thought I'd share my experiences with all you other protective mothers who are making summer plans. 

This year, I was thinking of sending my daughter abroad to visit her grandparents.  I was so excited by the idea that I went ahead and made reservations for a trip five weeks from now.  I just assumed that my daughter had a passport because I vaguely recalled getting one along with her Dad several years back.  For some reason I thought it had an eternal expiration date, which was dumb of me, because when I looked at the old passport, it had expired. 

So there I was with a rapidly upcoming trip, a nonrefundable plane ticket, and an expired passport.  In the old days what you'd do in a situation like this was run off to the passport office, pay a little extra money and throw a few slightly ugly passport photos at the situation.  However, these days, getting a passport for a child isn't all that easy. 

Apparently, after some widely publicized international abductions of children in high conflict custody cases, the government has revamped the rules to make it more difficult for divorced or divorcing parents to obtain a passport so as to transport a child out of the country without the permission of the other parent.  This makes sense since so many women have completely lost contact with their children when the foreign nationals they were married to took those children out of the country and their mothers never heard from them again.

On the other hand, if you are a protective mother with an abusive ex husband, the new requirements can make you absolutely miserable, since abusers can use these rules as a means to bully and harass protective mothers further.  My situation is a typical example. 

The new rules require that both parents come to the passport office together along with their child and sign a document stating they agree to obtain a passport for that child.  If one or the other parent is unable or unwilling to go to the passport office with you, then you have to get a signed and notarized document from the absent parent indicating that they agree to obtain a passport for that child. 

Of course, if you have an abuser that is simply an opportunity to say what in response to such a request?  "No", of couse.  If not "no", an abuser can drag you along for weeks with false promises to sign the document soon, very soon.  So by the time you realize it is too late and the plane is just about to depart, you don't have time to do anything about it. 

Or they will demand you give something up to them, either money or the opportunity to verbally abuse you more in the conversation.

Even if you get what you need from your X, your troubles may not be over.  I was able to get the required document, but when the passport did not arrive within the timeframe I expected, I called the National Passport Center.  They told me that along with the requirement of the notarized document from my ex which I had provided, they were gratuitously adding the requirement that I fax to them a copy front and back of a photo id of my ex which had to include, they told me, a copy of his signature.

I am like, you have got to be kidding me.  After all, in order to get that first document notarized, my ex had to show his driver's license which has his signature on it to the notary public. 

Ok, so I didn't say, you've got to be kidding me, because I didn't want to get the bureaucrat angry with me so he would put more barriers in my way.  But you understand what I am saying, not only did I have to follow the initial rules for additional documentation, I also had to produce even more documents just because the National Passport Office said so.

What a nightmare for any protective mother, because you had to do a song and dance for the first document and now you have to do another song and dance for the second one.  My friends, that is one heck of a lot of singing and dancing for an abuser. 

If you have an X who is reasonably cooperative it can be only mildly humiliating, but if you have standard abuser behavior, a situation like this is rife for trouble making. 

I know some friends of mine who ended up having to go to court for a court order so they could get the necessary papers signed in order to get passports.  And can you imagine, if you got the court to order the first paper signed, but the passport office came up with additional requirements as they did with me, then you would have to go back to court to get the additional requirements completed.  What a nightmare! 

The moral of the story is that if you are planning to have your kids go abroad for the summer and are dealing with an abusive X, make sure you take steps to get passports plenty of time, and I mean plenty of time, in advance of the scheduled trip.  Otherwise, the plane may leave without them. 

As an FYI, my understanding is that it is ordinarily the case that the custodial parent holds onto documents such as original birth certificates which are required when you apply for a passport.  And once you obtain the passport, it is again, ordinarily the custodial parent who holds onto the passport.  However, if the other parent wishes to have access to those passports for a legimate purpose, there are no legal grounds to deny that parent a copy of the passport.  

Also, grandparents, if you are going out of the country with your grandchildren who are caught in a high conflict divorce, make sure you obtain permission from both parents to take the children to whatever country you are going to.  Then using those parental letters of permission obtain letters from the embassy of that country indicating that you have official permission from the embassy to enter the country with your grandchildren.  Otherwise, you could end up in a situation where you arrive at the airport for your vacation with the grandchildren and they won't let the kids board the plane. 

Of course, again this involves all sorts of complications, opportunities for the abuser to cause problems etc. which requires that you initiate the process to obtain these documents well in advance. Forewarned is forarmed!

CONTEMPTS: FOR REAL AND NOT FOR REAL

I had a friend who was really angry about something her ex had done and she said,  "I want him to be in contempt!"

The thing I said to her is that as far as I know there hasn't been an honest to goodness contempt that actually led to a judge's ruling probably since Reverend Hooker led his congregation down from New Town (or what is now called Cambridge) and resettled them here in the Hartford area in around 1638.

Ok, maybe this isn't true. But one thing I will say is that abusers have a remarkable ability to get away with disobeying court orders. Whenever you do something wrong, the opposing attorney slams you.  But when your abuser does something he just goes along happily without anyone holding him accountable.  Are you like me?  You ask yourself, how does he do that, always get away with murder?

I'll tell you one important factor which affects the way abusers get away with flaunting the rules.  It has to do with contempts.  When it comes to contempts, lawyers have an amazing ability to snooker their clients, i.e. abused women.  Their clients say "do something about that" (whatever nasty thing the abuser did!) and the attorney will run off and submit a Motion For Contempt to the court, come back to his or her client and say, "See!  I filed a contempt!" 

That leaves the client, some fooled person such as you or me feeling, ok, my attorney has done something.  Well, no, the attorney hasn't actually done something. You see, what an attorney has done doesn't really count as having done something unless something truly happens as a result of his or her actions. 

You see, there are honest to goodness contempts, and then there are contempts that lawyers file simply to make fooled people such as you and me THINK they are doing something!

A true and honest to goodness motion for contempt takes place when your attorney goes to court personally and files a contempt motion and gets a "date certain" for a hearing on that motion for contempt.  When I say "date certain", I mean a certain date with a specific time, meaning that when the attorney personally filed that contempt motion, he scheduled with the clerk a specific date and time when the hearing on the motion will be held.  That date is written on a Notice to the party who is being filed against. For your information, to my knowledge, there is no fee for filing such a motion for contempt.

The Motion and the Notice with the specific date and time of day when the motion will be heard are then delivered by a State Marshall to the other party. Getting a marshall to deliver a motion can cost anywhere from $40 to $70, depending on how the marshall chooses to charge you.  If a marshall figures you are well off, he is likely to charge you the higher price.   

If the other party does not show up on the date and time specified on the notice, he or she is in a whole lot of trouble, and I mean a lot.  If you send or receive a contempt that is handled in this manner, this is a contempt you need to worry about and take seriously.

On the other hand, if your attorney, or if you received, a Motion for Contempt that was clearly sent to the court by fax and will probably end up on the list of all the other motions that need to be handled in your divorce case, don't hold your breath waiting for it to be addressed by the court.  Most likely, that contempt motion is only so much paper to be shuffled with all the other incidental and unimportant paper in your case.

If you challenge your lawyer on that point, he or she is likely to say, I'm holding the contempt off until a few months from now when we go to trial.  RIIIGGHHT!  The likelihood is that you are very unlikely to go to trial.  The vast majority of divorce cases in the State of Connecticut are settled by negotiation and I'll bet you that yours will be settled by negotiation as well.  So, you'll come to trial, settle by negotiation instead, so the motion/s for contempt will never come to the attention of the judge. 

The other scenario is that by the time the months have passed before trial, and then the trial has been continued for a few extra months, the timeliness of your contempt will have deteriorated and it will all end in nothing. 

Of course, all attorney's are aware of this!

Your attorney knows, and so does the opposing attorney who giggles upon receipt of a faxed contempt and throws it right away into file 13,  also known as the circular file, or garbage can. 

Both attorneys know what is going on; it's called pacifying and shutting your client up and making a little money while you are at it. 

In the long run, the way you can tell a winner from a loser in a divorce contest is that the winning attorney generally sends out real contempts, while the losing attorney sends out fake ones.  Now I'm not saying fabricate a reason to send some contempts  by marshall so you can make sure you are on the winning side.  But what I am saying is that when you see this little trick passing before your eyes, don't just shut them.  Confront your attorney and say either do it real or don't do it at all, because you are costing me money--fake contempts cost money--and, please, I am not a fool.

Number one in any divorce case is that your lawyer knows you are a client they have to contend with.

THE STATUS CONFERENCE

I have already discussed the trial management conference where the court administrates the practical details of getting discovery done, setting up the deadlines for when documents are due, and also making decisions regarding the parental responsibility plan. 

Another administrative type of conference is known as the Status Conference.  The Status Conference is a meeting which provides the judge with the opportunity to follow up on the agreements that were made at the trial management conference. 

If the parties agreed to a custody evaluation, this is an opportunity for the judge to set a date for the completion of the evaluation.  Also, if there have been any problems regarding compliance with the discovery dates established in Section III of the trial management conference agreement form JD-FM=163, this is an opportunity for the attorney for the party affected by that to speak up about it. 

If the other side needs more time for compliance, this is the time to set new deadlines, or if the other side is simply dragging their feet, the judge can now make it clear that the party, in fact, all parties must comply with discovery deadlines.  This is also an opportunity to talk about the barriers to settlement. What are the particular issues that the parties are struggling with. 

Both sides can now discuss the problems and recommended solutions with the judge.  If the judge wishes, he or she can provide his recommendation based upon his past experience or based upon case law. 

How many times have I heard litigants say, "I just want the judge to know my side of the story."  Often, it seems as though it is impossible to be heard through the layers of protocol and attorneys that stand between you and the judge.  The Status Conference is a good opportunity to make sure your voice is heard. 

The only problem with this is normally most attorneys tell their clients not to bother to show up.  "I'll handle this."  they say, "If you came, it would just be a waste of your time."  Baloney, don't listen to that.  What is going on is those attorneys don't want you to speak up and say what is on your mind.  They want to orchestrate and manipulate everything that happens before the judge and prevent you from having the kind of influence you would like to have on the Court.  So, if I were you, I'd go right ahead and nicely and sweetly include yourself in the proceedings. 

When you go to a Status Conference, you should bring your calendar with you, and your lawyer should as well, because this is often when the judge will choose the times for future hearing dates or else schedule your pretrial and trial dates. 

At any critical juncture, for example, if you change lawyers, or if there is a problem with the groundrules for conducting your trial, such as how evidence will be used, or whether one expert or another one will be allowed, there will very likely be a status conference.  The judge here will only make administrative, not legal decisions, so it really is an opportunity to talk about things that are going on which are hindering the parties from arriving at a reasonable settlement. 

Why it is important for you to know this is many litigants find that their ex husbands won't comply with discovery, or they refuse to follow through on agreements from the parental responsibility plan. When that happens many attorneys act helpless and say, "What can I do?  he won't comply!"  What you need to know is that attorneys are not helpless. 

Aside from a Motion For Contempt, attorneys can call a Status Conference and say, "Look judge, the other side is not complying with our agreed upon deadlines."  Of course, where the problem arises is when such attorneys never bothered to set up a trial management conference and never established any deadlines.  This is how you end up falling through the cracks--when your own attorney doesn't follow through on the kinds of administrative tasks such as filling out Section III of the trial conference form and then following up with a status conference to report back to the judge on how things are going with discovery. 

Attorneys are full of excuses when they don't do what they are supposed to do.  But don't believe them for a minute.  If they have done what they should have done, attended the trial management conference and the status conferences, everything should be in order regarding the completion of the custody evaluation and discovery, and don't listen to anyone who tells you otherwise. 

THE CASE MANAGEMENT CONFERENCE: YOUR FIRST GREAT OPPORTUNITY

When I filed for divorce and was represented by my super important lawyer, I hardly even noticed the case management conference in my case.  I suppose I was there for it, but I don't remember it at all. This was very unfortunate because it is at the case management conference that you make the most important decisions you can make. One such decision, for example, is whether you and your ex are going to turn the case into a major battle or not. 

Without my knowing it, my lawyer set me up for a long drawn out battle, and didn't even let me know what the other options were. Now my ex is an abuser, so I'm not sure there was any other way to go but a full out battle.  Still, it would have been nice to know that there actually were other choices.  

But let me back up here.  This is how it goes. First you file for divorce and arrange to have a state marshall deliver the divorce papers to your soon to be ex.  Then 90 days after the return date (the day the action is started, not the day of filing), the parties get together for a mandatory case management conference. 

In preparation for the case management conference the parties are required to file the case management agreement form JD-FM-163.

It is at the case management conference that the judge decides upon the parameters that are going to be put in place to regulate how your case is going to be conducted.  For example, the judge will decide whether your case will be referred to family relations for a custody evaluation, or whether you will have a private custody evaluator and/or a GAL. 

The judge may then establish the due dates for completing discovery and financial disclosure.

Essentially, this is the time when the judge lays the groundwork for the case; mistakes that are made then will probably remain mistakes forever. 

There are different ways that a case management conference is handled depending on how the parties decide to move forward with their case. 

If the parties are all in agreement, i.e. the case is uncontested, literally they can go ahead and have their divorce granted right on the spot on the day of the case management conference. 

However, if there are disputes over the financial issues in your divorce, the case is called a limited contested case.  Those that are called fully contested cases are those which involve custody issues or issues related to parental access to a child or children. 

The parties in a limited contested case are required to file 1) a case management agreement form; 2) financial affidavits; and 3) a parental responsibility plan indicating how parenting and visitation issues will be handled.  In a limited contested case, if all the documents have been filed, and the agreement has been approved by the court and signed by the parties, no one has to come to court. 

Fully contested cases are handled rather differently.  The parties in a fully contested case are required to file 1) a case management agreement form and 2) financial affidavits.  Even if all the documents have been filed, in a fully contested case the parties and their attorneys still have to come to court.

For both limited contested and fully contested cases all the discovery deadlines in Section III of the case management agreement must have written deadlines.  

By the time you are at a case management conference, pretrial and trial dates have often been scheduled and you can view them on the case detail of your case on the judicial website. 

The case management conference represents your first opportunity to make a strong case for obtaining the discovery and disclosure of vital financial information right from the very beginning. 

I know of so many abused women who have lawyers who simply don't bother with proper requests and deadlines and make those crucial errors right at the case management conference, so as a litigant this is when you have to intervene with your lawyer and make it very clear that you want a full and thorough discovery. 

Also, this is the time when you let the judge know exactly what the issues are in connection to custody.  It is now that you request testing for substance abuse issues. It is now that you request exclusive use of the house because your ex is violent.  It is now that you set up a strict visitation schedule that protects you from the kind of chaos and fuzzy boundaries that abusers use as weapons against you. 

If you don't set a tone right away at your case management conference, trust me, you'll spend the rest of your time in court trying to catch up.

Final note:  To get a copy of the Parental Responsibility Plan Form JD-FM-199 and a copy of the Case Management Agreement/Order Form JD-FM-163, go to the judicial website at: www.jud2.ct.gov, click on "self-help" at the bottom of the page and then click on "forms", also at the bottom of the page.

SOMETHING OLD, SOMETHING NEW, SOMETHING WRITTEN...OOPS!

As you can see, I am a writer.  Give me an excuse and I'll be off writing.  It is almost a compulsion.  Sort of an OCD thing.  I'm sure many of the folks reading my blog are writers also.  And the question for me and for you people that write is, what happens to writers during the course of a high conflict divorce? 

The answer is, you get trashed!  Again, let's go back to the original premise of my blog, which is that men who are abusive are ordinarily narcissistic.  It is standard for men like this to begin planning for a divorce years in advance of when they actually follow up by filing for one.  So what does this mean concretely? 

This means that, over the years, while you were married to your ex, if you were putting down on paper any creative work that could be compromising to you in family court, he has probably been collecting it in a file and will use it later on in the custody evaluation or at trial. 

Sources of written material could be anywhere.  They could be comments you posted on social websites such as twitter, myspace, and facebook, etc.  If your ex ever had passwords to your accounts, he could have been printing them out and storing them for years. 

They could come from email.  If you were doing what I often did, printing out my emails immediately after I wrote them and putting them in a file, your ex could have raided that file and obtained copies of those documents as well, all of which could be used against you in trial.  Your ex could also get a copy of the hard drive of your computer when you are out going grocery shopping or something.  My ex repeatedly demanded copies of the hard drive of my computer in discovery requests, not only in motions, but in demands he made to the judge.

 

 

Other sources your ex could raid are your notebooks or loose papers where you put your story ideas or investigation of possible phrases and words you might have wished to use at a later time.  Journal entries in notebooks, or your morning pages.  You might also have material that could be copied from old fashioned floppy disks or flashdrives.  

If you are one of these verbal types you might have tape recorded yourself telling a story or pretending to be a character in one of your books, or just reflecting on life in general.  

 

 

You may have written personal letters to friends, acquaintences, your therapist, mentors, family members and then kept copies or your ex was able to make copies before you sent them.  If you are like me, you might put greeting cards on display and some of those cards can have content that your ex might consider using against you.  

Now, before you say something like that isn't possible, or anything I have written is perfectly harmless, or why would anyone take an interest in my useless ramblings, think more deeply.  

Have you ever written anything, anything at all, for example, talking about the conflict you have between your creative work versus parenting you children?  Well, if the custody evaluator read it, could he conceivably conclude you are dissatisfied with being a mother?  

Have you ever written in the first person when describing the thoughts and feelings of a character in a novel of yours who fell into the dark depths of despair, perhaps this character even considered suicide?  Be prepared to have an excerpt of that presented to the judge at trial as an example of your own personal reflections about your own life.  

Take a look at any number of phrases or paragraphs or ruminations you've dumped onto the page over the years and imagine them recontextualized in order to prove you are a bad mother and a terrible citizen.  The jokes, the off color remarks, the wild imaginings, the iconoclastic positions you've taken, the antiestablishment manifestos--all of that can and will be used against you in a court of law.  

Yes, I know you have been brought up with ideas about your constitutional right to the freedom of the press and you have marinated in concepts such as the right to freedom of expression since birth, at least if you live in the State of CT.  But what you have to keep in mind is that all those rights go completely out of the window as soon as you enter family court.  And by completely, I mean COMPLETELY.  

As a fellow writer, I sympathize with how confused and upset this blog about writing must make you.  I personally felt raped and violated when I found out that my ex was using my writing against me, that the custody evaluator in my case was quoting it out of context.  It was probably the worst single thing that happened to me in my entire divorce.  But do not allow yourself to be a victim in this situation.  

As soon as possible, take steps to safeguard all of your written work. I am not going to tell you where to go or what to do, but locate a place where you can store all of your written work and make sure that no one, most specifically your abuser knows where it is.  

Place all of your downloaded writing, all floppy disks and flashdrives, tape recordings and everything in this hidden location.  

Do all of your computer work on a computer in a public library, and participate in social networking on the computer using a fake name.  

Conceal, conceal and conceal again.  

In fact, don't even let your ex know you write.  Go out of the house and out of his sight when you do your written work.  For us compulsives, I know that is hard.  But if you want to survive and you want your children to survive, this is what you have got to do.

If, despite everything you have done to protect yourself, you get caught with some compromising writing in the wrong hands then deny, deny, deny.  Just keep on repeating, "it's all my creative imagination."  I ended up repudiating a good deal of my social commentary and attributed it to my youth and lack of experience.  

For a writer, a situation like that is just like having to repudiate your own children.  I still live with the pain and the shame that were the result of that repudiation.  Like Rachel, I weep for these children, and cannot be comforted.  If I had protected myself early, if I had been cautioned of this danger, as I caution you now, I would not have had to go through this.  

So be warned.  

SHOW ME THE MONEY! SHOW ME THE MONEY!

I have talked about my situation where I ended up with a bunch of lawyers, all of whom despite excellent qualifications turned out to be mighty stupid.  My first stupid alert came with the second attorney who looked at the papers I brought her six months after I filed for divorce and kept on saying, but what about "discovery"? 

Yes, ladies, discovery!  Discovery is the process whereby all of the marital assets are laid on the table so that the parties (i.e. you and your ex) know exactly what there is that you need to divide in your financial agreement which is presented to the judge at the time of dissolution (when your marriage is dissolved).  The big excitment that gets generated around the issue of discovery occurs when one or the other party tries to hide those marital assets and avoid sharing--not a nice thing to do in the divorce sandbox. 

The way to make sure that all the marital assets are out in the open and that there is no hiding is to file a motion called "Motion For Mandatory Disclosure and Production" really early in the divorce.  This document gives the other party 30 days within which to produce the most essential financial documents necessary to determine the total value of your marital assets.  Usually this document has attached to it Schedule A which is a list of what financial documents the other side has to produce.  What is on this list is determined by Practice Book 2011, Section 25-32.  The full contents of this section is as follows:

Sec. 25-32. Mandatory Disclosure and Production(a) Unless otherwise ordered by the judicial authority for good cause shown, upon request by a party involved in an action for dissolution of marriage or civil union, legal separation, annulment or support, or a postjudgment motion for
modification of alimony or support, opposing parties shall exchange the following documents within thirty days of such request:
(1) all federal and state income tax returns filed within the last three years, including personal
returns and returns filed on behalf of any partnershipor closely-held corporation of which a party
is a partner or shareholder;
(2) IRS forms W-2, 1099 and K-1 within the last three years including those for the past year if the
income tax returns for that year have not been prepared;
(3) copies of all pay stubs or other evidence of income for the current year and the last pay stub
from the past year;
(4) statements for all accounts maintained with any financial institution, including banks, brokers
and financial managers, for the past 24 months;
(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan,
deferred compensation plan, pension plan, or retirement account;
(6) the most recent statement regarding any insurance on the life of any party;
(7) a summary furnished by the employer of the party’s medical insurance policy, coverage, cost
of coverage, spousal benefits, and COBRA costs following dissolution;
(8) any written appraisal concerning any asset owned by either party.
(b) Such duty to disclose shall continue during the pendency of the action should a party appear.
Copyrighted by the Secretary of the State of the State of Connecticut
This section shall not preclude discovery underany other provisions of these rules.
(P.B. 1998.) (Amended June 29, 1998, to take effect Jan.
1, 1999; amended June 26, 2006, to take effect Jan. 1, 2007.)

There are some important things to note about this list, one of which is section 8 (b) the ongoing duty to disclose.  At any time during the divorce process that the other side stumbles across a document which would complete the requirements in section 25-32 there is an ongoing duty right up to the day of dissolution to disclose that document.  So if your ex provides discovery based upon 25-32 and it is incomplete for some reason, his duty to obtain and submit the documentation to you remains in place right up to the point where you sign your financial agreement and get divorced.  So if it turns out that for any reason the other side was withholding an important document, you have solid grounds to go after your ex for contempt and/or reopen the case. 

Another point to take note of is that discovery in financial accounts goes back a full three years, which is pretty thorough, so make sure that your attorney puts that three years stretch in his Schedule A.  Don't let him give the other side a break and reduce the time frame to one year on a voluntary basis because you have a right to more. 

And remember, a significant number of abusers make plans to divorce you and cheat you many years before they actually file for divorce, so if you think you need to go back further than three years, then go ahead and ask for it.  The other side can object, but 1) they may not object, and 2) if you have reasonable grounds to be concerned, you do have a shot at getting further discovery if you ask a judge. 

Also, keep in mind that when you are asking for statements from bank accounts, that means the full and complete statements, not ones that are missing page 2 or page 4 and those pages happen to have the crucial evidence you are looking for.  Insist on getting everything you have a right to and that includes complete documents.  Check the page numbering to be sure something isn't missing. 

Remember tax returns without the backup documentation are fairly meaningless, so make sure you get the W-2s, the 1099s, and the k-1s as well as the evidence of expenses listed in Schedule C and Schedule E.  Otherwise, the other side can and will (do not be naive) invent stuff. 

Time is of the essence here.  The more delay there is in this process, the more opportunities for your ex to evade and avoid disclosure.  The court supports the delays and aids and abets men in avoiding accountability by continually delaying court dates and extending the divorce process to over a year, sometimes up to two years or more after the initial filing. 

Most Vital:  While discovery is taking place, each time you receive a packet of material in response to discovery requests, itemize what you have received and acknowledge them in a letter to the other side, then include a statement indicating what still remains to be provided.  If the opposing side includes a statement of compliance which has been filed in court, review that statement of compliance for accuracy and if there are any inaccuracies, respond with a motion to court indicating where there are problems.  Never, ever, miss the opportunity to do that because if you don't, they will say, "We gave you a copy of the May 20-- statement (see here our statement of compliance which you did not object to or question!) and now we can't find another one and it will take two months to get a replacement and the trial is tomorrow so too bad for you.  You do not want to be in that situation.  Trust me. 

If you end up having to use force to get the other side to provide financial information always use a subpoena and never use authorizations.  Authorizations are permissions signed by your ex allowing you access to his accounts.  Most financial institutions view authorizations with suspicion and will not comply with them fully. 

Keep in mind that if you find any funny business, hidden assets, a fraudulent financial affidavit, anything, you have four months after the date of dissolution to reopen your case legitimately.  After that, it isn't impossible, but it is much much harder to do.

And finally, If you follow through on these procedures, you will be able to negotiate a fair and equitable financial agreement and put your divorce behind you.  There is nothing worse than finding out six months after dissolution that your ex hid $100,000 from you or something like that. And keep in mind, once your divorce in over, you no longer have a right to any discovery, so get it while you can!

Where I see the situation go wrong in high conflict divorces, it is where litigants and/or their attorneys are careless about the process of discovery which I have described here.  Usually when I talk to people like that I say something like, what about Schedule A, and they have no idea what it is.  Do not be stupid.  Ask about schedule A.  It is here in this blog.  It is in the Practice Book forever, and if you overlook it or miss it, shame on you.

ELECTRONIC EVIDENCE: IS IT ADMISSIBLE?

Ok, don't laugh.  But when my ex and I went into our divorce, he forgot that I had the password to his email account because I basically set up his account.  

Or, maybe he didn't forget.  My other theory is that he knew that I had the password to his email account, but he didn't care because he was immune to any challenges and every time we went to court he was winning.  So he didn't care if I knew his password or not because he figured I couldn't do anything with the information I got from his account anyway.  And, in most ways, my X has been right about that. Still, I have felt better having the information that access to his email account gave me.  

Meanwhile, there did come a time when I decided that I was going to present to the court some of the emails I'd obtained.  Did I have to be concerned about any legal consequences in the same way I did when I considered tape recording phone calls with my X?   The answer to that question is: It depends.  

When you intercepted the emails were they in transmission or were they stored in the computer? According to the Electronic Communications Privacy Act of 1986 there are criminal and civil penalties for the unlawful interception of electronic communications while such communications are in transit. In that situation, you can be charged with wiretapping.  However, once an email is stored and downloaded into the computer's memory, it is no longer subject to wiretapping.  See Steve Jackson Games, Inc., et al. vs. United States Secret Service 36 F 3d 457 (5th Circ. 1994).  

If it isn't wiretapping, could looking at your X's email be considered an invasion of privacy?  An invasion of privacy occurs when a person intentionally intrudes upon the private affairs, seclusion or solitude of another person by means that would be highly offensive to a person of ordinary sensibilities.  An invasion of privacy would consist of opening someone elses' wallet or taping someone elses' phone conversation without authorization.  

The operative concept is the question of authorization.  In White vs. White 781 A 2d 85 (N.J. Super 2001) for instance, the Court determined that there was no invasion of privacy when Mary White accessed William White's emails.  The Court's reasoning was that because both spouses had access to the computer since it was stored in the family home, there could be no expectation of privacy on Mr. White's part.  In other words, in these circumstances Mary White was, indeed, authorized to access the computer and thus the emails stored in it. 

However, keep in mind that email evidence is admissible even if it were illegally obtained because there is no express provision in the wiretapping laws stating that information acquired under these circumstances is not admissible.  This means that, as a general rule, the fact that electronic evidence is obtained illegally is generally not a sufficient reason to exclude it from admission.  In fact, the Court has held that even electronic evidence obtained fraudulently, wrongfully or illegally is admissible.  See Lee v. Lee 967 S.W. 2d 82 (Mo. Ct. App. 1998); Gurevich vs. Gurevich 24 Misc. 3d 808, 886 N.Y.S. 2d 558.  

So, the answer to the question is, yes, there could be some consequences to obtaining electronic evidence without your X's permission, but there appear to be ways to make admissible in Court the information you obtain through these emails.  My best guess is, go in, see what you get, make sure you consult with your attorney before you make a move.  Good luck!

TAPE RECORDING CONVERSATIONS--LEGALLY OR ILLEGALLY

When I started out my divorce I had a tape recorder hanging around my neck at all times when my X was in the house with me.  Unfortunately, out of all the hours of taping that added up to, I maybe ended up with one tape that was particularly useful. 

I also tape recorded meetings with attorneys, meetings with my GAL and meetings with the custody evaluator in my case.  Some of that recorded material may come in handy one day, but up to this point, years after my high conflict divorce started, it hasn't really added up to much.

It did make me feel safer when I was alone in the house with my X, because I figured that if he did anything it would all be caught on tape. I also felt better that there were tape recordings of meetings so if I was too upset to grasp anything, I could listen to the tape and refresh my memory and understand better what had been said.

Of course, there were those times when I didn't have a tape recorder with me and that was when a lot of really good conversations took place that I really would have liked a tape recording of!

The big question I had when I started to consider tape recording conversations during my divorce was what kind of tape recorder should I use.  Thinking back, I probably could have purchased a nice, compact tape recorder that was unobtrusive from my local CVS for $20.00.  But seeing as I'm the thorough type, I ended up traveling for over an hour to a surveillance store where there were all sorts of devices for spying on other people, and purchased one for $100.00.  It was an oversized cylinder the size of a slightly overlarge lip stick case.  There were other very interesting kinds of recording devices, one the size of a quarter which was supposed to record for a full 24 hours which never really worked properly. 

Still, despite the fact that tape recording conversations never really worked for me, this doesn't mean doing so might not work for you.  You might end up doing a far better job that I was capable of.  To be honest, the whole divorce weighed me down so badly in the first three years that I was too exhausted to really utilize many of the options I had at my fingertips in the least bit effectively.

Often, I tape recorded these conversations with the full knowledge and permission of the participants, which was entirely legal for me to do.  But sometimes I went ahead and tape recorded conversations secretly.  Of course, the big question that came up when I tape recorded conversations secretly was the following: Were the tape recordings that resulted from those conversations I had with other people either in person or on the phone the least bit legal and/or admissible in court?  

For the Court, the answer to that question is two fold.  And in making these statements, understand again that I am not a lawyer, so what I am providing here is not legal advice, and if you want to be sure of what I am saying from a legal professional's standpoint, you will have to speak to a lawyer.  But, from my limited perspective, these are the considerations. 

First, did the other party or parties to the conversation have a reasonable expectation of privacy?  If a court were considering legality or admissibility, that is the first thing the Court would have to establish.  For example, did the conversation take place in your home or on the street.  If it took place in your home, there was probably a reasonable expectation of privacy, but if it took place on the street, in a public place, then there was probably not a reasonable expectation of privacy. If there is no reasonable expectation of privacy, then your tape recording could be admissible in court.

Second, did you obtain the appropriate consent of the parties to the conversation?  Thirty eight states, including the District of Columbia,  are one party consent states meaning they only require that one person in the conversation provide his or her consent.  In that case, as long as the person recording the conversation consents, and of course, why wouldn't he or she!!! then again there is no problem. 

However, if you are living in one of the twelve states that have two party consent laws, and Connecticut by the way is one of them, then all the parties in a conversation must give their consent in order for the tape recording of the conversation to be legal or admissible.  [By the way, since all parties in the conversation must give their consent, it would be better to call these twelve states all party consent states, but for some reason they just call them two party consent states.]  Still, remember, you have to get consent of all parties, and, again, that means Connecticut. 

If you disobey these laws in regard to privacy and/or consent, then your tape recording is not only illegal, it is inadmissible AND you could end up being sued for doing the tape recording. On the other hand, I have had friends tell me they made tape recordings and illegal though they may have been they provided the basis for a favorable ruling in family court. 

Still, I would be careful.  If you have a tape recording that you think would benefit your side, make sure you discuss it with your attorney before letting anyone know you have it. 

In addition, there are some practical considerations to take into account when you are tape recording: 

If you are in a situation of domestic violence and you are in the least concerned about your safety, if your X were to find out you were tape recording him, it could push him over the edge and lead you to be subjected to even worse violence. 

In any situation, where you are tape recording anyone, and you were caught doing it, you could be in a whole lot of trouble, just trying to explain what you were up to.  So do some simple self protection like, don't get a thirty minute tape for a one hour meeting and then have the tape recorder click off loudly right in the middle of the meeting. 

And last but not least, keep the tape recorder away from a lot of paper rustling and chair scraping. 

As a final caution, I'd urge you to be sensitive to the circumstances and how the tape recordings would make you look.  Sometimes they make you look like a sleazy, scheming, scumbag of a human being because you are using a semi-illegal approach to getting information.  You don't want to come off that way. 

Whatever you choose to do, however you choose to do it, God bless you, and Good Luck!