How to Talk to a Judge in Family Court in Albuquerque, NM

HOW TO TALK TO A JUDGE IN FAMILY COURT IN ALBUQUERQUE, NEW MEXICO

 

Your court date is quickly approaching.  Over the past few days you have anxiously rehearsed your facts and arguments before your mirror and family pets.  Are you speaking your judge’s language?  Have you thought about your case and legal issues from the judge’s perspective?

Here are a handful of issues that I routinely encounter that prevent parents from connecting with their assigned judge:

 

Arguing Fairness vs. New Mexico Law

 

One’s idea of “fairness” often fails to perfectly overlap with the reality of law.  Potential clients and pro se litigants often argue about the “fairness” of a particular law.  This argument generally appears when one is confronted with child support, alimony, or time-sharing for a very young child.

Under New Mexico law a parent can be ordered to pay child support even though the relationship ended due to the other parent’s immoral conduct.

Similarly, at times one party to a marriage is blindsided by infidelity, or other widely immoral conduct, and then is tackled by divorce.  One party may be morally guilty for the resulting divorce.  Nevertheless, because New Mexico is a “no fault state,” New Mexico courts are prevented from considering who is at fault for the divorce when considering alimony.  See Redman v. Redman, 64 N.M. 339, 328 P.2d 595. In New Mexico, alimony is not a penalty for immoral conduct or fault.  Instead, alimony is a two sided coin that is based on one side’s need, and the other side’s ability to pay.

The practical effect of New Mexico law is that a spouse can be forced to pay alimony to a person that caused the relationship to shatter because of immoral acts.

Although judges have equitable powers to determine fairness, New Mexico law trumps equity.

 

Failure to Understand your Judge’s Core Values

 

All judges are not created equally.

Some judges are conservative.

Some judges are liberal.

Some judges have decades of experience practicing family law and routinely being appointed as a Guardian Ad Litem prior to becoming a judge.

Some judges had zero family law experience before being appointed.

Some judges take a firm stance against parents that use any mind altering substances.

Some judges like to hear the evidence and then make decisions based on their experience and personal review of the testimony and evidence.

Some judges like to appoint an outside party to review the facts, conduct a thorough investigation, and then enter a recommendation regarding the child’s best interests.

Have you considered your judge’s unique characteristics?

Have you molded your arguments based on your unique judge’s personal preferences and tendencies?

 

Burden of Proof

 

Burden of proof is a ubiquitous catchphrase that is often heard, but rarely dissected and considered.

In family law, generally one must prove one’s case by clear and convincing evidence.  “For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” See 2005-NMCA-066, ¶7.

On the other hand, a family law case (DM Case) often coincides with a Petition for Order of Protection that is filed under the Family Violence Protection Act (DV Case).  In the DV case one must prove one’s case by a preponderance of the evidence.  This essentially means that one has the burden of proving one’s case by 51%, or a “more likely than not” standard.  In practice, this Preponderance of the Evidence standard means that the presiding Special Commissioner hears the evidence and then makes a determination based on a “gut feeling.”  Based on the low burden, it is extremely difficult to overturn the Special Commissioner’s ruling on appeal.

Burden of proof also applies to one side filing a motion to modify, or change the status quo.  The individual filing the motion (movant) bears the burden of proof.  In the context of family law, this burden is generally defined as a “material and substantial change in circumstances.”  In relation to child support, this “change in circumstance” is generally met when one can show that application of the child support figures leads to a 20% change in the current child support amount.  In relation to custody, this “change in circumstance” generally means that a change has occurred to a degree that the current time-sharing is no longer in the child’s best interests.

 

Beliefs and Hearsay vs. Admissible Evidence

 

Take a moment to think about your core beliefs.  Are you a republican?  Religious?  Do you believe that this is the season that the Dallas Cowboys will end their 23 year super bowl drought?

In relation to family law, do you believe that your ex is under-reporting their income?  Do you believe that an “act of abuse” has taken place that warrants an Order of Protection to be entered for your safety? Do you believe that your current time-sharing schedule is not in your child’s best interests?

Is your belief based on what you’ve read or heard from others?  Is the person that relayed this information willing to appear in court and testify under oath on your behalf?  If not, then the other person’s statement – whether hand-written or notarized – is an out of court statement and therefore inadmissible evidence.

Can you provide admissible evidence that proves your belief?  This evidence could be a text message, bank statement, email, or recording.   Can you reduce the evidence into a one page document that can be labeled – EXHIBIT A – and then introduced into evidence to support your burden of proof?

When facing an approaching court date, begin to think in terms of how you can reduce your beliefs to a one page document that can be introduced into evidence.  In court, beliefs are only as valuable as the evidence that supports the belief.

 

Unrealistic Expectations

 

It’s human nature to seek comfort and understanding from family and loved ones.  Often people going through a divorce, child custody, or other family law issue, seek guidance from family members.  One’s instinctive need to speak with family and friends can create a host of potential problems.

Family members with the best of intentions can offer the worst of advice.  This advice can be based on the “telephone game” of legal information where New Mexico law is stated, repeated, repeated again, time passes, faulty or self-serving memory kicks in, and then the information is pieced together in an attempt to enlighten a family member or friend.

No two cases are alike.  Some cases are in different states, with different judges, at different times, based on changing law.  The facts in two cases can be markedly dissimilar.  Notwithstanding these inherent differences, the results of one’s case can be passed down in a “one size fits all” manner.

Despite the best of intentions, misinformation can result in unrealistic expectations that one carries into court.

 

Speaking with Anger when your Judge is Listening with Concern

 

Angry litigants rarely succeed in winning over the assigned judge. From a judge’s vantage point, angry parents appear unstable, unreasonable, and more concerned about striking back at one’s ex, rather than acting in the child’s best interests.

Judges generally do not view angry parents as being “child centered.”  The nucleus of one’s case should always be the child’s best interests – not periphery anger directed towards one’s ex.

At times, clients come to me with the misguided belief that acting angry and aggressively in court will somehow impress the judge.  Horrible idea. Family law judges have immense power to determine “the best interests of the child” and resulting time-sharing.  Presenting one’s case in an angry manner can backfire to an immense degree, casting a shadow over one’s case that can take several subsequent hearings to overcome.

One’s overarching goal should be to come across as a reasonable parent that is entirely focused on the child’s best interests.

Ditch the angry demeanor and begin crafting the image of a reasonable parent that is focused on the child’s best interests.

 

Judges Want to Know the Status Quo

 

Judges love “status quo.”  From a judge’s perspective, consistency and predictability are Two Towers that promote optimal child development.

“Status quo” is the time-sharing schedule that one follows before appearing in court.  Status quo heavily influences a judge’s initial decision regarding the appropriate time-sharing that the parties shall follow until one of the following is completed: (1) An evidentiary hearing is held, (2) Court Clinic is completed, or (3) A GAL conducts an investigation and enters recommendations.

Judges are also heavily influenced by the Suggested Parents Visitation/Time-Sharing Guidelines.  These Guidelines were created by child psychologists to guide New Mexico courts towards the most developmentally appropriate time-sharing schedule. Suggested Visitation and Time-sharing Guidelines. 

A parent’s failure to understand the importance that judges place on Status Quo and Suggested Guidelines generally leads to unrealistic expectations.  This lack of understanding can create a negative cycle where unrealistic expectations are created, triggering anger at the “unfair” decision.  At times this anger causes the presiding judge to view the parent as unstable/unreasonable, completing the vicious cycle and adversely affecting a parent’s custody case.

 

TEN TIPS ON YOUR COURTROOM BEHAVIOR AND HOW TALK TO A JUDGE IN FAMILY COURT

1. Follow the Golden Rule and treat your judge as you would like to be treated;
2. Always show respect;
3. Avoid loud sounds and/or animated expressions;
4. Never interrupt;
5. Speak clearly;
6. Less is more — keep it short;
7. Remember the power of eye contact;
8. Stand when your judge enters the courtroom;
9. Dress respectfully; and
10. Never create a scene.

 

 

(505) SANCHEZ IS HERE TO ANSWER ALL OF YOUR QUESTIONS ABOUT HOW TO TALK TO A JUDGE IN FAMILY COURT IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions regarding your specific case and how to talk to a judge in family court in Albuquerque, New Mexico?  Child Custody and divorce cases often require the experience hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your unique case.  Sanchez can be reached by calling (505) SANCHEZ.