“When it comes to deciding children’s lives, doing it cheap is no substitute for doing it right.
Endless motions to re-argue temporary parenting orders – with no apparent inclination to ever seek a final order at a trial – do a disservice to children who deserve proper consideration of all the best interest factors, based upon a thorough presentation and testing of all relevant evidence at an oral hearing.
a. For parents: Motions – even an endless succession of temporary motions — may seem quicker and cheaper than trials.
b. For lawyers: Motions are less work than trials. Less disruptive to busy caseloads. Motions let the lawyer multi-task, servicing multiple clients on the same day. In contrast, trials require the lawyer’s undivided attention, sometimes for days or weeks at a time. So motions are often a better business model than trials.
c. But for judges: Complex, bitterly contested motions based on incomplete and untested affidavits usually make it impossible to make necessary credibility and factual determinations — let alone fully understand the personal situation and needs of each parent and each child. Affidavits simply don’t give us all the information we need to make proper determinations.
In the early stages of a family dispute, motions are often unavoidable.
a. Time is limited.
b. Things are in flux.
c. Children are disrupted. Often in despair. Sometimes in danger.
d. Emotions are high.
e. Decisions have to be made.
f. Finances and parenting issues need to be stabilized.
Judges do the best they can with imperfect affidavit evidence on crowded motions lists — because something has to be done. Quickly.
But once a temporary order is in place, that should be the end of the “motion stage.”
a. The focus should switch to achieving a finalresolution for the family. That’s why we offer comprehensive case management.
b. The best result for everyone is usually a negotiated settlement. A consent order. And that’s how most cases conclude.
c. But in a small number of cases, an oral hearing will be required. Where witnesses will testify and be cross-examined. Where all the issues will be thoroughly reviewed and a decision will be made, once and for all.
Except an increasing number of litigants appear to have no interest in a once and for all resolution.
a. They don’t want to settle.
b. But they don’t want to go to trial either.
So our court system gets bogged down with people engaging in half-hearted litigation.
a. They keep talking tough about all the things they’re going to do at trial – except they never seem to want to get to trial.
b. They pretend they want to advance the file to a final resolution. But in reality they allow the file to languish.
c. Adjournments become the litigation strategy of choice. Preferably sine dieadjournments. (In Latin sine die means “no definite date or period to resume”, but in family court it could easily be mistaken to mean “I hope this doesn’t come back for a long time.”)
d. They ignore the Rules and court-ordered deadlines.
e. They allow months – even years – to go by with little or nothing being accomplished.
f. They complain the court system is too slow – but refuse to schedule next steps in the process.
And then suddenly – often when they discover their case is about to be dismissed — one of the parties will bring an “urgent” motion seeking yet another temporary order. And so it starts again.
a. More affidavits (often asking the judge to refer back to earlier affidavits as well).
b. More cross-motions.
c. More allegations (and blame-shifting for the delay).
d. More unsworn exhibits and attachments.
e. More untested evidence.
f. More impossible demands on the motions judge.
There is absolutely no excuse for this.
a. There is generally a finite period of time within the early stages of a family court file when motions for temporary orders are appropriate.
b. In some instances – where litigants are actually paying attention– there might even be justification for subsequent motions pending an anticipated trial. Sometimes new information or disclosure becomes available. Sometimes things change.
c. But the older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit.
d. Particularly where children’s issues are involved, it’s unfair to keep asking motions judges to struggle with incomplete, untested, and highly conflictual affidavit evidence. We’ll do it at the beginning, when there’s no alternative. But there’s a tipping point where you can no longer ask judges to struggle through repetitive volumes of imperfect materials – for the sake of yet another temporaryorder — when in reality the parties could have already had (or at least scheduled) their trial.
e. On financial issues, this lackadaisical approach is a wasteful nuisance.
f. On parenting issues, asking judges to engage in guesswork because you’ve neglected your file is unconscionable.”