Jennifer Pahlka
Car windshield. Oakland, California. July, 2010.
In my experience, there are two types of family law clients: those who are overwhelmed and want to delay the proceedings and those who want it over and done with within weeks of retaining counsel. More often than not, the person in the partnership who is being left behind is the overwhelmed client, while the party doing the leaving is the one in a hurry. Having said that, power imbalances, levels of education and other factors also play a role in how any given party responds to separation.
The first thing that a party should keep in mind is that full and frank financial disclosure is required in family law. You can’t, or shouldn’t, enter into agreements with respect to support issues or start transferring property – be it real estate or pensions – without properly understanding what the relevant incomes are or the proper value of any given piece of property. A judge cannot make an order setting out the rights or obligations of parties to a proceeding without evidence, and that doesn't mean one party saying a house is worth X while the other says it’s worth Y. Evidence is an opinion from a qualified expert with respect to the issue at hand. Compiling that information and completing a financial statement takes time. Often disputes then arise over the value that any given party ascribes to a particular asset requiring further expert opinions.
Likewise, when examining issues such as custody of kids and access to them, additional information is often required to move the matter forward beyond the personal opinion of an individual party. I am regularly told by clients what fantastic and devoted parents they are, while their former partners are often woefully inadequate. Sometimes this is so, but often these are less than objective perspectives. Frequently, a client’s former spouse sits in another office telling a family law colleague a very different story in an equally compelling manner. In such instances, a neutral third party such as a private custody/access assessor or the Office of the Children’s Lawyer may be requested to get involved.
If a private assessor is retained, time is required in order for parties to agree upon the assessor and to retain him or her. The assessor then needs to meet with the parties, the children, relevant collaterals, and to complete their report. If a request is made for the Office of the Children’s Lawyer, an order must be obtained from the court requesting their involvement. Intake forms are completed by the parties setting out the reasons why they feel the OCL should be involved, and the OCL has to decide if they consent. If they do, it will either be by appointing a clinician who, like a private assessor, who will complete a report, or by appointing legal counsel for the children. Legal counsel represents the children in the proceeding just as parents’ counsel represents the parents in the proceeding. Should counsel be appointed, he or she will almost always meet with the parents, meet with their children clients a number of times, review police and CAS disclosure and may as well speak to the children’s teachers and doctors. As you can imagine, this too takes time.
While this is occurring, a court proceeding may move forward incrementally, but to a large degree the speed at which it does is dependent upon the compiling of the above information. Once this is done, a settlement conference is held and a summary of the above is laid before the judge who then expresses an opinion as to the merits of the case. The parties are at liberty to resolve the matter based upon all or some of the judge’s recommendations or, if they can’t agree, set the matter down for trial.
Often after completion of the conference, a month or two will elapse before a date for trial is set. After that, it's generally set for a sitting of the court which is usually several months away. Usually, a number of other matters are set down for trial at the same time, such that some matters are reached during the sittings and some are not. If the matter is not reached, it goes back to an assignment court date to get a new trial date and the process is repeated. Matters can usually take upwards of a year or two to reach trial. Only last week I had one that hadn’t been reached for three years.
The moral of the story here is that more often than not a family law proceeding moves at the pace of a tortoise, not a hare. Within reason, in my opinion, this is how it should be. It allows time for proper evidence to be complied and, more importantly, it allows time for parties to recover from the impact of their separation, consider their rights and responsibilities and to resolve upon a resolution properly reflecting the reality of their circumstances and meeting their family’s future needs.
James Stengel is a Family Law Lawyer with Houghton, Sloniowski & Stengel. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Houghton, Sloniowski & Stengel.