Saturday, June 23, 2007

Two little words

Regular readers might recall my writing about Madison County instituting a program for pro se emergency custody cases. Those that are neither regular readers or do not recall that particular post, here is a link to it.

My first case under this process got consolidated with a paternity petition out of Madison Superior Court Two and after some preliminary skirmishes, there was a pretrial conference with the other party's attorney, myself and Judge Brinkman. Opposing counsel had a novel theory about why the previous court's order giving my client custody should be ignored: the process was set up for pro se cases and his client did not have an attorney at the time. That argument did not even merit discussion.

I got a bit more attention out of my position that the prior order meant that the opposing party was actually in the position of a modifying the earlier order. Judge Brinkman took the position that the prior order being for a temporary and emergency child custody order that was not a permanent order and would be treated the same as a provisional custody order in a divorce. So the burden of proof would not include a need to show a change in circumstances (necessary for a modification of custody) but only the best interests of the child. I was slightly disappointed but actually this sat very well with me. A procedural victory lacks the good feeling of a win on the facts of my client being in the best interests of the child.

I still think that our local procedure needs some more work. The order giving custody to my client did not give any indication of when its temporariness would end. Which then leaves open the question of whether the original order was a final judgment or not, and all those issues of whether the opposing party could have appealed the original order. Another question raised by the particular facts of my case is what if neither party filed a petition to consolidate the earlier custody order with the paternity case. I had a strategic choice to make and have no thoughts that I chose wrongly - paternity having never been established left my client as a legal third party to his own children with a much harder burden of proof and all legal presumptions against him and favoring the mother. I much prefer mother having the burden of proof as the moving party and the lack of legal presumptions against my client.

No comments: