One of the most frustrating things clients experience in divorce court is the surprise that they are not going to get a “trial” with every motion or appearance. Family law doesn’t work that way. If you have to take your case to trial, you have essentially already “failed” as the attorney for several reasons.
First, while the Court has very broad discretion, it is bound by the policy of the State and the Family Code. The attorney knows how far the Court can go; she needs to communicate those boundaries to the client. The Court cannot handle issues that are not properly before it and it cannot make ridiculous orders that are prone to failure. The policy of the State is that former spouses, even from long term marriages, eventually become self-supporting. Also, children should have both parents equally in their lives, absent domestic violence or conduct that is detrimental to their best interests.
There is no presumption that Mom gets the house to stay with the kids. Also, there is no presumption that Dad cannot change a diaper or do a 3:00 a.m. feeding, assuming he has been around junior since birth and the baby knows him.
The list is exhaustive, but the bench has seen just about everything. So, when you make a first appearance (and everyone is expected to appear at all family law hearings), you need to know a couple of basics: is this a trial or long cause hearing where live testimony is going to be taken? Or, is it a hearing where evidence can come in by declaration and, therefore, everyone knows what is at issue and what has to be decided in advance so that any agreements that should be made, either are made before or at court, obviating the need for a hearing altogether. Your stipulation may get the Court’s signature, but it doesn’t want to engage you to hear about every crummy defect you want to tell it about your ex.
California is a “no fault” State and has been one since 1972. This means that you can divorce for “irreconcilable differences” i.e., no reason at all. Whether she cheated on you is irrelevant to anything. You do not need to prove, as in so many other divorces for-cause States, how your ex broke his wedding vows.
Same goes for cases involving children’s issues: unless Mom’s behavior is having a detrimental effect on the child, she still gets to have visitation. Courts, and this includes all their ancillaries, mediators and personnel, want to know that a child is in danger to order a parent to keep away from her. Speculation about this is not enough. You had better come prepared with a written, professional opinion from a social worker, psychologist, pediatrician, etc., to properly get an order keeping a parent away from his child or supervised visitation.
Frequently, after everything has been completed and an agreement reached, many clients want to know “Can I still talk to the Judge?” The answer is, “No.” If you have signed off on an agreement or stipulation and the Court has signed it also, the Court believes you are on board with the agreement and does not need to hear from you. Rarely does client’s input at a hearing change anything. Often, it makes the situation worse, especially if the attorney does not know what it is the client intends to say. Some judges who are almost always former trial lawyers, cringe when clients “speak out” at hearings – to some of them, this is akin to having their criminal defendant client blurt out “OK, I did it! But I didn’t mean it!” in a capital case. Very hard to put that admission back in the bag.
Clients are entirely appropriate directly responding to questions the Court puts to them, unless their attorney objects to the form of the question. Otherwise, the reason you hired the law-school-graduated, State Bar-admitted person in the suit is to represent you, not sit idly by while you express yourself. If you need to address the Court, tell your attorney what you want to say. If it’s redundant or irrelevant, you can discuss it with her. Blurting things out either during hearings or without warning causes two problems: it can get you ejected from the courtroom and demonstrates for the everyone that your attorney has no client control. It can also show that you have no control over yourself, a problem if you are trying to come across as the sanest person in the room.
To recap: unless there’s absolutely no meeting of the minds on any issue, most of your case will be decided by agreement. In parentage cases, unless you are contesting that you are the parent, or that you disagree with a parent’s custody or visitation and have proof of wrongdoing on their part, you are not going to trial on your case. The Court is not going to want to hear from you how awful the other person is in their spare time. Or how difficult it was before your child together was brought into this world, and how hard it has been since then. Those circumstances are a given in life, not just family law.