DAILY TOOL: Modification…a slippery slope in justice

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TOOL OF THE DAY: Modification…a slippery slope
CATEGORY: Family Law Process

There are different types of modifications:

  1. Reconsideration
  2. Setting aside an order
  3. Standard Modification

Before you embark upon what type of modification you want to undertake, you should first check a few things:

1) Does a modification mean that there is no parental presumption? It does in Texas. This means that when you open up the door to modification if you don’t know that you are facing this you could make some fatal errors and lose more than where you started.

2) Is there any other option that might reduce your risks of facing the arbitrary, broad, and potential abuse of power of the family courts? In our situation a while back, we learned after we had come to the close of ending our battle that we could have just enforced, filed contempt, and never opened the door to the orders being modified. (This however, doesn’t prevent the other side from opening the door. But if they don’t then your issue can more easily by narrowly scoped and you can limit the court from reaching into the other issues…most often through objection that it is improperly plead if the court or the other side tries to address something not opened up or asked of the court.)

3) Are you dealing with any statutes that allow the court to do things you didn’t ask?

Child custody, child support, and alimony modification all seem to have separate sets of rules when it comes to family law. Some of the rules are in print and some are learned culturally. So how are you supposed to navigate the waters? First, it is in my experience that even trained professionals in the field tend to navigate these by the seat of their pants. The culture that I refer to is the one that has developed within the walls of the courthouse. While you may have a disadvantage by not knowing the everyday habits and behaviors and the unspoken language in these courts. And you cannot know everything, neither can anyone else. You will know the rules that set the basic premise for the due process and you will most likely know more about your rights than anyone else in that building. The things that others don’t know you will have to try to use to your benefit. Many times I’ve found that attorneys and judges are mostly bluffing their way through the hearing and just pulled one over on you because you feared challenging them, you believed them, you thought that they knew better than you.

It’s natural to believe that they are the expert and therefore they know more than you. This gets wrongly interpreted in most of these cases as they know best. In fact, there have been many people who are scolded and even put down and told that they won’t be seen favorably if they question the judge or any of the experts. You are discouraged to raise anything that they didn’t decide or to propose something that is outside of their usual mode of doing business.

Modification creates an influx of business. They are very protective over what feeds their industry. While at the same time, this influx of business also creates a backlog and makes the courts want to justify judicial efficiency and expediency. They already have a backlog in most family courts so they don’t want to entertain anything that they think might increase the time that they have to use on their calendar for your case. They want to cut corners and move you through their channels as efficiently as possible for themselves. They want to keep you in their channels. Cutting corners though cuts out your due process. This allows the court to hear more cases in the same amount of time. But this cuts out your protections for your rights as well. Many courts have grown to see your challenge of their violation of your due process as challenging the role of the court. You therefore have to show them that it is necessary in order for justice to be done.

So many parents do not feel that there is any justice at all in these courts and they have lost faith and trust in anyone associated with the court process. This is justified. The courts are not garnering respect when they have disrespected your rights and your sacred family unit. They have treated you and your child like second-class citizens.

Why are so many needing to get modifications in the first place? The process in which you got your original orders as explained above, where corners were cut, people were intimidated, bullied, and disadvantaged led to the creation of unlivable, unjust, and unworkable orders.

Did you ever need to have your rights dictated to you or modified by the courts before your divorce or paternity suit? Did you have to have your rights and duties dictated to you in order to make decisions regarding your child, how you supported them, or any other right regarding the management of your daily life, behaviors, decisions, choices, etc prior to stepping into the family courts?

So when you are no longer in a relationship if you bear a child with another person the court now has the right to insert themselves into your life and sweep your rights under the rug and apply the rights unequally because the other parent asks them to or because you needed your rights protected?

Nope. But they can take over your rights if both parties ask them to. The other person can ask them. But unless you consent or forfeit they must provide proper due process. You have to know how to shut them down when they disagree though so that you can challenge them at a higher level if they are not persuaded at the trial court level.

Many people being hurt by modifications are actually the ones that brought the modification request to the court themselves in the first place. Some that we have come across are parents who wanted to establish that they had the children more time than what was originally ordered so that they can lower child support and they end up losing more time with their child and being burdened and driven into financial and emotional ruin.

Why is this? Can this be avoided? What are some of the most common reasons that a modification might be sought?

The top three that really stand out and appear to be the most common are:

  • A parent feels protective over their child and is told the family court is where they need to go to address their complaint/problem. (We have witnessed a father being told to bring his social security issue to the family courts. This is an inappropriate referral in our mind because they are sending the parent somewhere that has no jurisdiction over the money from social security and this sets the parent up for losing more time with his child and opening a bunch more issues. One is expense of going back to court, the other is finding someone that is going to argue the issues for him as well as protect his time and rights to his child. The other is he is subjected to abuse of power after he already has equal time and rights. Bringing a claim that appears to want to take from the mother could inflame and anger the court and place him at risk of losing what he had already protected successfully.)
  • You had time and rights limited or taken away from you because of a ruling in the court or an agreement that you made.
  • You are paying child support and/or alimony and your circumstances have changed.

In many States modification can open more doors for the courts then you realized. You might think that they will be limited to what you are asking them to do. You might be asking them to do things that you never would have done if you knew what the request would invite them to do in your life.

You might even think that it matters that you have an order already. Did you know that the majority of people that end up in a modification are treated like they are going through divorce for the first time? Did you know that even if you were never married you could be put through the same process and feel like you are going through a divorce for the first time? Or worse, it can be more expensive and even more grueling than what you went through in the divorce. Many times people settled in the divorce and never went to trial, only to find themselves in a modification and find that it is longer, more burdensome, more expensive, and even more arbitrary.

Before you open up these doors find out if there is a different way you can get the result you want. Here are a couple of things that you could consider before going into a full out modification:

  • One is enforcement/contempt. 2) The other is a collateral attack on the order. Perhaps there is something in the order that cannot be enforced but is interfering with some of your finances or your rights to your child. You could research whether a collateral attack would be appropriate. 3) And a third thing is asking for the order to be set aside. (This I believe has to be done within a particular timeframe.)

If none of the above are options, and you cannot find any other options to resolve the issue then before you modify, limit the court in your pleadings and presentations to the court. (Start with some of our other Daily Tools on this blog. Make sure you read the one on “Rebuttable Presumption” where I talk about strict scrutiny as well as the one where I talk about shifting burdens.)

If there is a burden being placed on you by statute you will want to research whether or not you can challenge that requirement. Ask yourself is the statute constitutional on its face? Is the statute constitutional as applied? An example of a statute at the minimum unconstitutional as applied would be a statute requiring you to prove that you are a better parent than the other one who was given primary custody, and that the child’s circumstances are detrimental to their well being before being able to challenge that you are allowed to support your child directly and not have child support imposed on you and given to the other parent, in a situation where the two of you have equal timesharing. There are some States where they order child support even though both parents have equal or almost equal timesharing.

Once you have decided that modification is the route you must take, you might be able to start with the following to get you on your way:

  • Pull the State statutes that address modification. Decide if you need to challenge the constitutionality of the statute. If so, be prepared to find case law and use it to support your arguments regarding the statute’s application in your case.
  • Decide what kind of order you have.
    1. If your final order is an agreed divorce decree look into using contract law and the rules surrounding it in your State to limit the tendency of the court to try and change things that you have a contract to protect. For example, almost all final divorce decrees have sections in them that tell the parties what will be done when they are not in agreement. So being in disagreement alone should not be grounds for the court to start changing everything in your order. So many people/attorneys forget to argue this point effectively. When if they did they would surely shut down so much time wasting and additional burdens imposed by the court. (Additionally, if you are in Texas look to a case called KMJ, a child for how the justices in the 2nd appellate court in Texas handle final divorce decrees that were agreements and not a product of a final trial.)
    2. If your order is a result of a final trial, then you cannot use contract law. They may refer to your final decree or order as just judgment law in this case. Although the disagreement part and argue that the judgment/order already addressed the issue if disagreed should still be one that can be used in this kind of order as well.
  • Be careful that you are not trying to attack your order directly or re-litigate the issues that your final order contains.
  • If you are trying to argue your rights and you were not aware of what these were the first time you went through it, you could argue that you did not knowingly forfeit your rights the first time around and that you want them considered now. Then use the case law that helps you argue that fundamental rights must be knowingly forfeited with a knowing waiver. Keep in mind however that this might not make much of a difference since the law is not usually very forgiving for those who do not know their rights. You know the saying “ignorance of the law is not an excuse.” So this is just a suggestion to try but not something that we think will give you much leverage if you consented, forfeited, or objected but did not successfully appeal.

An additional reason to appeal an order that produced unjust results that is unlivable is to be able to get the issue in front of the appellate courts if you cannot persuade the trial court. So if you previously allowed the appeal time to expire and you now feel confident that you could appropriately ask for a modification and are comfortable and prepared with appealing, this might be an opportunity for you to get a different order in place. Keep in mind that this is risky and you could lose more than you have lost already. However, if they have taken almost everything from you already and you hardly see your children or not at all (due to withholding of your child by the other parent) then this might not be much of a risk for you.

So even though it is much better to know your rights the first time around, I hope that this has given you a tool to gain more leverage than you might have had before that doesn’t put you so much in a position to be taken advantage of and can help you achieve “justice for all.”

 

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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)

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