Tuesday, June 14, 2016

What Do Judges Want?

     It was Dr. Sigmund Freud who once rhetorically asked: "What do women want?". Litigants and lawyers preparing for trial should likewise ask: "What do Judges want"?
   Based on my observations, judges today, especially in Massachusetts, are swamped with cases, with new ones filed every day. They have no personal interest in the outcome of any of the cases that come before them: if they did, they would have to recuse themselves from the case. Like the rest of us, they want lower-stress working conditions, and a rewarding outcome from a day's work. My take on what they want is as follows.

   1.  They want cases to settle. 
      Look at the sheer volume of cases before them. If even ten (10%) percent went to trial, the entire judicial system would ground to a halt. Most cases the judge has seen a few thousand times, and intuitively knows in what direction a jury (or judge in domestic and probate cases) will probably decide. In a family law case, they are more concerned with giving the parties closure than in validating one parties' claims against the other. Like everybody else, he or she would prefer that people leave the courtroom happy, or at least not unhappy. If a case goes to trial, there will be an eventual winner and a loser, and closure is delayed, possibly for years during one or two appeals. If a case settles, both parties can come out ahead, with an outcome they both can live with.

   2.  They want counsel to be courteous to each other.
      There was a time when professional courtesy was the rule, not the exception. With the over-saturation of lawyers in America, many attorneys are stressed, and civility starts to take a back seat. Nothing appears to anger a judge more than two attorneys squabbling over minutia. I remember one judge yelling in a crowded Trial Assignment Session: "Can the two of you agree that today is Wednesday?" before storming off the bench. Hearing and resolving cases is hard enough without playing nursemaid to attorneys who cannot get along, and treat each other with courtesy and respect.

   3.  They want the parties to be honest.
     The Court system is designed to arrive at the Truth. When a party hides or misrepresents the truth, they are subverting justice. In a domestic relations case, a party who tries to hide assets often discovers to their chagrin that the Court, upon discovering an undisclosed asset, will often respond by assigning that asset to the other side. In other civil cases, the Court may assess attorneys' fees, or cite a party for perjury.

   4.  They want parties and their attorneys to be realistic.
     Your minor neck or lower back injury is not a six-figure case. You will not get custody of a child you have not seen in five years. If you win your trial, the Judge will not give you a gold star. Parties and their counsel should be aware of the probable results of their case going in.

   5.  They want counsel to be prepared.
     It irks the judge during a trial to find out that the attorney never bothered to research the law as it applies to their case, or to properly prepare his or her case for trial. Do not expect the judge to do your job for you.

Tuesday, June 7, 2016

Children Born Outside of Marriage: Child Custody v. Child Support

     Many times, when a child is born outside of a marriage, it is just a matter of time before the couple end up in Family Court (Probate & Family Court in Massachusetts) to decide issues such as custody, visitation, and child support. More often than not, it is the Mother who has had physical custody throughout the child's life, and is seeking child support from the other parent.
     Many non-custodial parents try to avoid paying child support as required under their state guidelines, particularly in Massachusetts, which has among the highest support guidelines in the country (if not the highest). Some think they can make the custodial parent "go away" by threatening to ask for sole physical custody, or shared physical custody. The threats are usually empty, and the custodial parent should not be intimidated by them, as she will almost always prevail absent a history of abuse or neglect of the child.
     Unlike a situation following a divorce, - where there is a presumption of shared legal custody, and where physical custody will usually go to the parent who has a history of taking primary care of the child - in an out of wedlock situation in Massachusetts, the birth mother is presumed to have sole physical and legal custody unless a Court subsequently rules otherwise. There is no presumption of joint legal custody, and a non-custodial parent will only be awarded joint legal custody when the parties have shown a history of having been able to work together jointly to further the best interests of the child. In short, a divorced father is presumed to be on equal footing with the mother, while the unmarried father has to demonstrate a history of shared responsibility for the child and the ongoing ability to communicate civilly with the mother regarding the best interests of the child.
     Some of the fathers sued for child support have little or no connection with the child since birth, yet they still make this silly threat in the hope that the mother will be scared away. Rest assured: no competent family law judge would suddenly uproot a young child and move their home on the basis of a piece of paper filed by a previously uninvolved parent. The Courts seek stability for infants and children; changes of physical custody only come about by agreement, by marriage, by emergency, or by a history of involvement with the life of the child.
     Please note that the Massachusetts Child Support Guidelines presume that the non-custodial parent has the company of the child for up to one-third of the time. Even if the parents share time equally, unless the parents have similar income, the higher-earning parent will probably be ordered to pay something in the nature of child support (albeit at a lower rate!) to equalize the ability of both parents to support the child or children in accordance with their combined joint income.