September 10, 2014 REPLACES UPDATE 11-10 (see change on page 2, underlined section) TRAINING UPDATE 12-9
PREMISE: Family law motions are controlled by statute and the rules of family court procedure. Although most attorneys follow those rules, some do not. In order to effectively evaluate a family law motion there are 10 basic rules and judicial best practices that every judge should know:
ONE: PARTICULARITY AND SERVICE:
a) All family law motions must specify with particularity the relief the party is seeking in individually numbered paragraphs. The motion must be supported by signed, sworn and notarized affidavits containing facts relevant to the issues before the Court. Family Court Rule 303.02(a).
b) The motion must be properly and timely served. The rules require 14-day service of motions and affidavits; 10-day service for response motions that raise “new issues”; and 5-day service for responses that do not raise new issues, inclusive of Saturdays, Sundays, and holidays. Rule 303.03 (a). Computation of Time for Service is controlled by Rule 303.03 (a) (4).
TWO: GOING BEYOND SCOPE OF MOTION: With rare exception you should not allow counsel to argue for relief that was not noticed in the motion and not supported by relevant information contained in an affidavit. Similarly, attorneys should not be allowed to argue important facts not stated in the affidavits, such as what has occurred since the date of the affidavit.
THREE: TEMPORARY HEARINGS - STATUTORY AUTHORITY: Be certain that the relief being sought at the temporary hearing is within the authority of the Court under M.S. 518.131. Temporary orders shall be made solely on the basis of affidavits and argument of counsel (including oral testimony if allowed).
If child support is at issue, each party should attach a child support guidelines worksheet as an exhibit to their affidavit. Temporary orders are not appealable, therefore, the Court is not required to make specific “findings of fact”.
FOUR: APPOINTMENT OF GUARDIANS AD LITEM: GAL appointment practices vary among districts. The appointment order must specify the duties to be performed by the GAL. For a list of GAL duties that are allowed, see GAL Rule 905 (General Rules of Practice). For a list of duties that are prohibited, see Rule 903.04. Specifically, Rule 903.04 prohibits GALs from conducting custody/parenting time evaluations or mediating/arbitrating disputes between parties. “In all proceedings for child custody or for marriage dissolution…in which custody or parenting time with a minor child is an issue, the court may appoint a GAL…to represent the interests of the child.” MS 518.165, subd 1.
FIVE: REQUEST FOR ORAL TESTIMONY: Rule 303.03(d)(2)(3)(6) contains the requirements for providing oral testimony at a motion. The request must be submitted by motion served and filed not later than the filing of that party’s initial motion. The motion must include names of witnesses, nature and length of testimony, including cross examination and types of exhibits, if any. Requests for hearing time longer than one half hour must be made by a separate written motion specifically setting forth the necessity and reason that evidence cannot be submitted by affidavit. The Court can grant or deny the request or restrict the request to a shorter period of time including reducing the number of witnesses that may be called and limiting the scope of their testimony. See also M.S. 518.131 subd 8.
SIX: THREE FREQUENTLY IGNORED RULES:
1) NOTIFYING OTHER PARTY OF MOTION: Rule 303.01(a) requires counsel to promptly give written notice of the date and time of a scheduled motion hearing, the name of the judicial officer if known, and the primary issue(s) to be addressed at the hearing to all parties in the action. If the parties reside in the same residence and there is a possibility of abuse, notice shall be given in accordance with the Minnesota Rules of Civil Procedure.
Note: In the past, some attorneys would schedule motions weeks and even months in advance of the hearing date and then serve the motion with the absolute minimum 14-day notice in order to obtain a perceived tactical advantage. The above rule amendment was designed to stop that practice.
2) SETTLEMENT EFFORTS: Rule 303.03(c) requires the moving party within 7 days of filing a motion to initiate a settlement conference, either in person, or by telephone, or in writing in an attempt to resolve the issues raised. Unless ADR is not required under Rule 310, this conference shall include consideration of an appropriate ADR process under Rule 114. The moving party must file a Certificate of Settlement Efforts demonstrating compliance with this requirement no later than 24 hours before the hearing. Unless excused for good cause, no motion will be heard without certification. The only exceptions to this rule are parentage cases where there is not currently a court determined parent child relationship and situations where a court has ordered no contact between the parties.
3) ORDER TO SHOW CAUSE: If an “Order to Show Cause” is filed (e.g. for a contempt motion, etc) be certain that it complies with Rules 303.05 and 309 as to form and content. An “Order to Show Cause” must be personally served in the same manner as a summons. Mailed notice is not sufficient. M.S. 588.04.
SEVEN: UNSWORN ATTACHMENTS: Motions for temporary relief must be supported by a sworn affidavit under Rule 303.02. There is a long-standing practice among the family bar of attaching numerous pages of unsworn material to their client’s affidavit. The client’s affidavit does not give evidentiary credibility to unsworn attached material, such as; school records, police reports, letters from relatives, teachers, daycare providers or medical records. Such unsworn attachments can be objected to by the other party. Although subject to judicial discretion, as a general rule, a judicial best practice is to ignore unsworn attachments. See also M.S. 518.131, Subd 8.
NOTE: NOTARIZED LETTERS: Another common motion practice is submitting notarized letters “To Whom it may Concern” or “Dear Judge” or other
similar documents. A notarized signature is NOT a sworn affidavit; the signer must be sworn stating that the information in their affidavit is true and correct. If the document is not an affidavit, it can be objected to by the other party.
EIGHT: INAPPROPRIATE AFFIDAVITS: Although parties may get some cathartic relief by trashing the other parent in their affidavit, the reviewing judge must remain focused on the requirements of M.S. 518.17 Subd (1)(b) which states: “the Court shall not consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child”. Since judges cannot consider it, family lawyers should cease the practice of allowing clients to vent their anger and frustrations by expounding in their affidavits, at length, about the conduct of the opposing party, unless it clearly impacts the children. Inappropriate attachments such as argumentative emails, text messages, tweets or Facebook postings, can be stricken by the court sua sponte if determined to be “redundant, immaterial, impertinent or scandalous matter.” See Mn R. Civ. Proc. 12.06.
NINE: AFFIDAVITS FROM MINOR CHILDREN: The practice of filing sworn affidavits by children of the parties should be discouraged. Children are not parties to the dissolution or custody case and usually do not have a Guardian ad Litem. Allowing one (or both) parent(s) to “ally” with a child has adverse consequences too numerous to mention in this update. Unless ordered by the Court, parties should NEVER bring the child(ren) to court for the motion hearing.
TEN: FINANCIAL AFFIDAVITS – DOUBLE DIPPING: Financial affidavits should be supported by paystubs or relevant portions of tax returns. A common problem is when parties (intentionally or inadvertently) list on their monthly expense sheet the cost of health insurance or other expenses that are already reflected on their paystubs or wage forms as a deduction to their gross income (see paragraph 7 of the Application for Temporary Relief). This “double
dipping” could look like a fraud or trick is being perpetrated on the judge and will also negatively impact that party’s credibility.
SOURCES: This update is based on the January 2012 amendments to the General Rules of Family Court Practice and contains excerpts from an article written by Hon. Sharon Hall (Anoka County), and Hon. Steve Halsey (Wright County): “Preparing and Arguing Effective Family Law Motions”; Greg King, MSSW, Guardian ad Litem Manager, Tenth District; Mark Hodges, U of M Extern.
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309