TOOL OF THE DAY: A Simple Proven Method for Protecting Yourself from Discovery
CATEGORY: Family Law Procedure
When a divorce is filed, the judge makes orders right away. These orders trigger things that you will be told that you have to do. We help you understand what is happening in ways that your attorney might not explain to you. We help you protect yourself. (Free Motion sample templates in this post.)
First of all, the court is going to try and skip procedures so that they can take control over your life by taking over your rights.
This blog will introduce you to the following:
1. What do you do when you believe that the court issued orders to conduct an illegal exploratory search?
a. What is an exploratory search?
2. Protecting yourself from unnecessary discovery;
3. Free motions to challenge orders (later in the post);
4. Comprehensive Motions to protect yours and your child’s rights (these are different than the protective/quash order – attorneys are using these).
What do you do when you feel the judge has ordered an exploratory search?
Let’s say your judge has issued an order that says you are going to have to undergo a psych eval, drug testing, or split the expense of a child custody evaluation? You have two choices: 1. You follow it. 2. You challenge it.
1. You follow it. — Typically the cost of psychiatric evaluations, drug testing, child custody evaluations, and other exploratory discovery leads to the average divorce cost of over $70,000 dollars, the loss of rights, places the parents into orders where the noncustodial parent (NCP) is subject to criminal charges, and takes over the NCP’s financial future where the court can require constant reporting to the court on finances, hold the parent to maintain the same financial levels they were making in the marriage, and continue to take from the parent anything they deem as value to pay the new debt that the court created during the child custody trial.
2. You challenge it. — When you refuse to follow a court order. You are essentially telling the judge “NO” you are not going to comply with that order for a drug test or a custody evaluation. These are all forms of discovery and what we are calling exploratory searches. If you believe that the judge does not have grounds to force you to comply with discovery or the court order and you have discussed this with your attorney. There are some ways that we have learned have been used to challenge these kinds of orders.
Most of us have been raised to obey authority. Oh sure, many of us have gone through the teen rebellion years. But overall, I think that it is safe to say that before you went through the family courts you might have believed that you should do what the person in power says to do without question.
Unfortunately, this has hurt a lot of parents in divorce. Many people do not realize that you can say NO to some things that are ordered. Fathers and mothers all over the United States are saying NO and getting their children back. You don’t hear about them usually because they weren’t thrown in jail and didn’t have to appeal.
Did they get threatened some of these parents with jail? Some of them did. Did they get threatened to be cut off from their child? Most of them were already cut off or only getting visitation with their child and was made the non-residential parent already. Were some of them threatened with enforcement? Yep. Did some of them use these challenges in the enforcement hearings? Yes. Was it scary? Yes. The ones who prevailed are the ones who were not afraid to be threatened, who had a clear plan and knew their limitations. If they can sense any fear or smell that they can intimidate you then they will. They have many methods they use to bully you into giving in to their demands. It is up to you what risks you are willing to take.
Perhaps the opposing counsel and even the judge may try to make you feel bad for refusing to do as the judge orders. Or maybe they try to make you look guilty. (There are actually some states that have statutes that say if you do not comply with an order that you can be assumed to be guilty.) And god forbid if you are made to look uncooperative or like the difficult one! You probably didn’t know that the key issue was based on who is the more difficult one! It’s not really, but they want you to believe that so that they can control the situation and the outcome. And if they are left to run the show and control the framing of the case in the record then you will be subject to this and you won’t be able to do anything about it. The point of this blog is to help you understand how to take command of your case and get back in control, even if they violate, you at least then have put things on the record that give you a formidable challenge.
If they can get you to give in and consent, then you have waived your right to privacy and to not incriminate yourself (self-incrimination). That makes their job easy. Now they don’t have to justify what law or authority they used to interfere in your life. Questioning them at this point is pointless.
If you are going to challenge power you will need to be in control. When faced with such Faustian choices as whether to give in to a judge or go to jail or give in or be cut off from your child, you best be as prepared as possible.
Here are a couple of tools you will want to know about: (As always check with a local attorney to see if you can use it for your case as this is general information. And if you have not had a protective order or discovery thrown at you yet, you can still protect yourself from the expensive process by using these motions.*)
1. Use the motion protective order/quash motion samples shown in this post if there are already discovery and exploratory search orders issued. You must address those. Do not just let those go without responding. If you are not going to challenge them you better comply with them. (Download the sample motion for Quashing supervised visits and discovery here Motion for Quash and Protective Order General template. This is a Word document.)
2. Use the motion samples to change the course of your case. Rather than playing the victim and being dragged through the process. Take command and set up your case so that you can steer this ship. You can find the information for this step in the motions you find on this page. These are used to re-frame your case so that you can get a fair and just result. There was a ton of work that went into these motions. These are not motions copied from a template book. These were created by and can only be found here.
Without these steps you are sure to be dragged through the same archaic process that parents and children have been dragged through that places children in the middle and that drives parents in the thousands into bankruptcy every year. We know parents who have paid over $100,000 in just six months.
- Some steps to help you if they hold a hearing to enforce the discovery/exploratory search orders.
- An Objection: First you will always, always need to have objected in the hearing unless it was ex parte (then you object in writing afterwards still if you were not present.) Then you object in writing, like a Motion to Object. In some areas you can request a hearing on your objection. This tool is generally used when a court has ordered you to do something. If you do not prevail on your objection, go to step 2. NOTE: You can also use this technique on some temporary orders for child custody time.
2. A protective order: If you were served with discovery, which includes subpoena, interrogatories, custody evaluation, psych eval, drug testing, etc. then read this step. Most people think of the other kind of protective order that is used to protect someone from physical harm when they see the words protective order. But there are also protective orders used to protect you from invasion of your privacy. If the other side has requested a custody evaluation or some other discovery you feel is an invasion of your privacy (psych evals and home studies are discovery and invasions of privacy) and you feel the court did not have proper authority to do so, sometimes filing one of these stops their momentum and allows you to get your footing and apply some of the other techniques that give you leverage and control back over your case. This is also called an Order to Quash (Quash means to nullify, void, or declare invalid). Here is a sample of this kind of protective order: Plaintiff’s Notice to Quash Deposition and for Protective Order and also go here for a Word document you can use to create your own. Yours can be for an attorney trying to force you into agreeing to a custody evaluation, it can be for request for interrogatories, it can be to ask the judge to quash and cancel temporary orders where you were made a visitor in your child’s life without proper due process, etc. These are also used for things the other side is serving you with and imposing on you like to answer interrogatories, attend a deposition, and things of that nature, and not just what the court has ordered you to do.
3. Other injunctions: This is defined as “A court order commanding or preventing an action…the plaintiff must show that an irreparable injury will result unless the relief is granted.” I’ve seen these used when the court orders something they didn’t have the authority to order. (Definition from Black’s Law Dictionary – Ninth Edition.) There is some exploration being done on whether you can ask the federal court to issue an injunction protecting you from a court order that exceeds its authority. (Remember proving that the state court exceeded its authority is a toughie, so most likely you’ll proceed with the rest of the method as outlined below.) If you are going to the federal court then this is because the state court has violated your constitutional rights and you do not have opportunity to be heard in the state, and this right is a federal right that you can show in statute. You cannot appeal your order in federal court or ask them to change your order there. You can ask the federal court for declaratory judgment relief. We suggest that you ask your trial court as well. You must provide opportunity to your court to provide the relief to you.
Then if you do not prevail on a protective order or other injunctions or you didn’t try those at all, and now the court is going to enforce through an enforcement hearing or a status hearing to see if you complied. Now what do you do?
Well you could comply and consent to what is being ordered. Then you have no argument if something doesn’t turn out the way you wanted it to or you feel that something was used against you that shouldn’t have been, you might not have any more legs to stand on.
But if that doesn’t feel right to you and you still feel you want to challenge, and that you believe that the statute that is being used to authorize the judge to do this has not met the proper threshold, that proper due process has been ignored, and that you have a right to not self-incriminate, etc., then you use the motions and you argue them, but you also always make sure that you are also prepared to provide the defenses that are allowed in your statutes for whatever you are being accused of not following. For instance, if a defense for not following an order for drug testing or psych eval is that you were unable to comply, you prepare for that if you have that defense. If one of the defenses is that you did not have the money, then you prepare that defense. You get the point. You can use our tools and still prepare for the hearing according to the statutes. Remember this, those statutes can and will be used against you. So you don’t ignore them and you do your best to protect your rights while also protecting your ability to prevail. You might not win all of the individual battles in your case, your goal should be to be able to finish the war, and to win the war.
Keep reading is you want some additional information on learning to frame your case: (If you are feeling overwhelmed and want someone to get back with you with an email pointing you to resources that fit your learning style, or you just want to hire someone to write arguments and do research for your attorney, and help you figure out what resources you need and how to use them, you can contact us here.)
To prevail on any of your requests any time you have to persuade someone in power in writing or in person, you better be prepared to make a great presentation to the court even if you have an attorney. (Remember some of our other posts like how you can tell your story through your testimony.) As long as you have your attorney prepared they can cue the story up for you. And when we say story we are not talking about the traditional he said/she said. See our video page and other posts for more on this.
The better you are at advocating your position, the more likely you are to prevail. So having as much information and educational materials as possible can be very valuable. So let’s cover a major reason that so many arguments don’t get taken seriously or get the time of day. And show you how you can be more effective. Why wasn’t the judge persuaded by your argument?
Perhaps what you are presenting is not persuasive!
Oh sure, you had everything organized beautifully, you supported all of your arguments, and everything you said was right on point and absolutely right! In fact, you explained everything in detail. But it was still as if you didn’t exist and like you hadn’t said a word.
I found a book that can help you understand what is going on in someone’s brain when you are presenting your argument to them. The book isn’t about family law at all. You have to think out of the box here, the book is called, “Pitch Anything,” by Oren Klaff. This book can be very helpful in explaining what is happening in the other person’s brain when you are presenting something to them that is new to them. The first thing the brain does is put up guards and a signal is sent through their brain, the listener’s brain — that would be the judge — that you are the enemy and the information you are feeding to their brain is a threat. We’ll get back to these ideas in a minute about your information being the enemy and a threat, not you.
The book starts with a list of steps for getting through to someone and persuading them to give you “the deal.” These steps happen to mirror the steps that we’ve been teaching you all along. Imagine that, you can take general market presentation and negotiation techniques and apply them to this field. We taught you back in the webinar where we taught you about the habit loop and the book called “The Power of Habit” by Charles Duhigg, remember that? You didn’t know that the longer they dragged you through court, and the longer you followed us here, the more powerful you would get, and the better leverage you would have from information here, did you?
Okay, so presenting in family court isn’t much different from making a sales pitch at all. We know how much we all hate sales and sales pitches so we will call these presentations or your story. Either way you need to get used to the fact that you are going to have to present and that the judge is going to see you as a salesperson and not an expert — not an expert in the law that is. By the time you are done you will have persuaded them that all you had to be an expert in is parenting even if you have flaws, and we all do. Just know that this is the way their brain is perceiving you, as a sales person. Then you will know where you need to get from and where you need to get to.
Perhaps our methods are so similar to these books and so many experts in the field because we have all spent a lot of time studying how the brain works and behaves. And you’ve probably heard that there is nothing new out there, and that it’s just the same information re-purposed right? Well it is about how you combine this information isn’t it? You’ve seen examples of this in your every day life through television hosts like Steve Harvey, experts and speakers like Anthony Robbins, Zig Ziglar, and Dan Clark who make the information usable in your every day life.
You might have heard of NLP but now you are going to learn how it works in your current situation — well a little bit since we are not experts in that area (yet). Oren has spent considerably more time on the neurolinguistic part so we’ll leave the explaining of the details of what is going on in the brain when making a pitch in depth to him — get his book and you can read all those details. (His book goes into more depth about the way the brain is working when you are presenting and why.) We pretty much stick to how you can use the way the brain is working to your advantage in the court without having to know all of the in-depth details about NLP.
So for this post, I’ve re-purposed the categories that Klaff uses for our purpose here in our blog today. And don’t worry if you took our second course, this is the same formula I teach there (I just played with the names of some of the categories a little bit to try to make it even simpler). I am going to show you here a basic overview of how you can adapt this simple method to your situation in family court:
- Framing your case.
- This is where you always re-set the judge back to the issues that you want addressed. Say for instance if you are asking the judge to recognize that you have fundamental rights and then apply the laws that protect those rights before deciding it is his duty to determine the best interest of your child, then you would have a way to remind them that:
- “You are not asking the court to determine the best interest of your child” but in fact you “are there to ask the court whether the other side has met the proper criteria for asking them to determine the best interest of your child. Thus you are re-setting the court to issues pertaining to your fundamental rights and the proper due process necessary before the court can justify interfering with yours and your child’s rights.
- Telling your story.
- You do this through your opening and closing statements and your testimony.
- We gave examples of how to tell your story in a previous post where we showed you through sample dialogue how to demonstrate to the court how you are exercising your rights as opposed to trying to prove that you are a better parent than the other.
- You do this through your opening and closing statements and your testimony.
- Revealing the authorities.
- You use case law to ping their interest that this is not just your idea but the idea of their bosses. This is where you have case law handy that supports your position on why these rights pertain to you in your case.
- Offering the Evidence
- Now the exhibits you provide tie the case law/authorities and your framing together. Here is where you provide any exhibits to prove your position.
- Nailing the Issue
- Once you’ve touched on things that make sense to them and seem plausible the information is now able to get out of their “prehistoric survival brain”* and back into the neocortex where decisions can be made from reason and logic and not just from bias and emotion.
- Getting the decision
- Here the judge will either have been persuaded and decide in your favor, or you will get an order that you can challenge now because you preserved error.
Following every one of these steps in sequential order is crucial and necessary. As Oren in “Pitch Anything” explains:
“You can have incredible knowledge about your subject. You can make your most important points clearly even with passion, and you can be very well organized. You can do all those things as well as they can be done—and still not be convincing. That’s because a great pitch is not about procedure. It’s about getting and keeping attention. That means you have to own the room with frame control.”
If you’ve been through a court hearing, then you know that sometimes getting their attention let alone keeping it seems impossible. What we are telling you is that it is not necessary for you to be able to challenge them at a higher level — to have their attention that is and not even to get their agreement. But it’s nice when you can and then resolve it without having to go that extra level.
You will have more luck with persuading a court, whether it be the trial level court or an appellate court if whenever the judge diverts the court attention to an issue you are not asking them to address, you go back and re-state your issue and get them back on the right track. (Remember, the case “In Re Sanders?” The defense attorney in this one did this brilliantly.) This is how you keep your framing on what you want to address and remain in control of the progression of the case.
Of course, many of you have faced a judge who you know isn’t paying attention, is falling asleep even, or is acting like they are being threatened so they start threatening you. Let’s cover where we left off at the beginning about how they see what you are presenting as a threat and an enemy. Ask yourself if what you are presenting to the court is “1) a threat to their survival, 2) and will there be consequence if they ignore you?” The reason it is important to be aware of this happening is so you can understand what to do next. This reaction is “Based on research on how the brain accepts new ideas.”
Judges listen to cases all day long. They are programmed to reject most of what they are being told and to not believe it.
“Pitch Anything” further teaches you that the information you are telling them is alerting them that they might have to expend extra brain power which takes energy (and as many of you know the brain is an energy hog, as Ron just pointed out to me the other day, the brain uses 25% of your glucose), and they want to conserve energy — they have a lot of people to sit there and make rulings on.
So the court isn’t sitting there thinking “Hmmm, this person is making a lot of sense” or “maybe I should pay attention to this person because they have a lot of good information” like I’ve heard so many of you say. No, instead their brain is saying “Since this isn’t an emergency, how can I ignore this?” And the judge might be thinking “How can I just shut them up and get on to the next case?” If you are presenting something that is new to the court then it better be simple and summarized quickly. If you don’t do this then the standard operating procedure of the court will remain and the new information that you introduced will be ignored.
If your pitch is complicated then it is viewed as a threat.
“Not a threat in the sense that the person listening to your pitch fears he is going to be attacked, but a threat because without cues and context, the croc brain concludes that your pitch has the potential to absorb massive amounts of brain power to comprehend. And that is a major threat because there just isn’t enough brain power to handle survival needs, the problems of day-to-day life, and existing work problems plus whatever unclear thing you are asking it to do. Presented with this kind of situation, a circuit breaker in your brain is tripped. The result? A neurotoxin gets attached to the potentially threatening message (your pitch). This is like a FedEx tracking number, which, in turn, routes your message to the amygdala for processing—and destruction.” – quote from “Pitch Anything”
Of course your presentation to the court is not a pitch, but then again it really is. So if you were getting ready to make a big presentation to your work and you had to close the deal to keep your job you would make sure that you covered all of their objections as well. So don’t forget to have that in your story/testimony as well. (Go back and watch the video on framing in this post if you need more on covering the objections.)
And lastly remember that if you comply, then you cannot appeal. (And yes there are arguments that can be made here about the “chilling effect” they had on you by placing you in the position to have to make a Faustian choice, but do your best to try to avoid that one because that one is really, really tough to prevail on right now. Much tougher than if you tried this method first. Faustian choice arguments are last ditch effort arguments and all of the courts know this. This doesn’t mean that they aren’t formidable ones but remember you leave fewer loopholes for those in power if you follow these techniques in sequential order.)
If you do decide to resist complying with an order, you very likely will be left with a Faustian decision whether it be “Will the judge throw you in jail” or “Will the judge follow through with their threat that you will not see your child until you given in.”
So now I leave you with an excerpt from a case where there was a Faustian choice for the appellate court on a 1st amendment dispute, and the court knew that they were left with a difficult decision as many of us who have been through this have been left with at one point or another. They chose to restrict the 1st amendment right in this case knowing full well that this could get used in ways that they did not intend:
“Such notoriety is not to be sought. It will curtail defendants’ First Amendment rights in a drastic and substantial fashion. It will infringe upon our right to know and to be informed as well.” ~Ex parte Whetstone, 347 SE 2d 881 – SC: Supreme Court 1986
I would highly recommend you watch our webinars and read the blogs to learn more about how to integrate framing your case, resisting the abuse of power of the court, researching case law, and supporting your argument (presentation) with the psychology methods that net you the higher likelihood of getting what you want and more successful results.
Come back to this blog every day this year, subscribe, and follow us, and you will find another valuable tool posted to help you get the results you want. Mothers and fathers are using these every day and getting better and faster results. The earlier you start using these methods the sooner you will turn your life around…protect your family, your hard-earned money, and your ability to continue to pursue your life dreams with your child by your side.
*See Melody Brooke’s materials for more information on how your brain works as well. She also has powerful tools so you can “visualize the marriage of your dreams, not divorce.”
**Please note that the method outlined above is just some of the method and not inclusive of all of the things you might need to do. It is your responsibility to make sure that you decide what you need and what you don’t for your particular case. I am not warranting that this works for everybody.
Need more information? You can learn more about how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. I do not warrant that what is being provided is accurate or current. I do not warrant that all of the steps that you need are here. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.
The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.
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