DAILY TOOL: What Happens After the Final Trial…being Left in Limbo without a final order signed…

TOOL OF THE DAY: Post Final Trial Order Signing

CATEGORY: Family Law

You have your final day in court, or so you thought. You proved everything you needed to prove and got a ruling in your favor. Or maybe the ruling was not in your favor. Either way, you think you are done paying attorney’s fees. And you think you are done period. Regardless of the outcome you think that nothing further can happen. But instead you find yourself left in limbo. You have no order that you can enforce. You don’t know which order to go by. Do you go by the old order until the new one is signed? How do you enforce the new one before it is signed?

You weren’t told that after the final decision in court is made that there is still a lot more that can happen. There is a lot of issues that you are still going to have to deal with.

Were you told that you might need to pay your attorney more money even after the final trial day in court? Were you told to make sure that you have more money to pay your attorney to finish the entire process?

Most people think that when the trial is over that everything is done and over. Most people do not realize that what you paid your attorney might only have covered you for the trial and nothing afterwards. Many people end up not represented after the trial and are on their own to get the order finished and signed because they are out of money. This catches a lot of people off guard.

So you need to plan for the following: (There may be some slight variations from state to state.)

1. Drafting the final orders.

2. Paying your attorney to negotiate the terms of the final order.

     a. This could include things like negotiating back and forth between opposing counsel regarding details of the order that were left open by the judge.

     b. This could include having to argue against an order that opposing counsel where they try to slip things in that they didn’t get during the trial.

     c. This could include having to go to a hearing for clarification if the judge will not clarify without a hearing.

     d. This could include having to create additional agreements during the pendency of the entry of the final order like stipulations or Rule 11 agreements, etc.

     e. This could include having to pay your attorney to attend another hearing to argue the final order entry.

     f. This could include filing a stay of the order and to be heard on a new trial. Or filing a notice to void or vacate the order. These also may require a trial.

     g. This could include paying your attorney to draft the orders if you prevail. You could have to pay your attorney to draft orders even if you didn’t prevail if the other side doesn’t get them in and you want them entered, or if the other side drafts an order that doesn’t reflect the judge’s order.

3. Knowing which order to follow until the final order is signed.

4. Knowing what to do if the final order starts but nothing is in writing yet.

5. What do you do if the other parent violates the new order before it is in writing?

6. Writing findings of fact and conclusions of law. (These are not always done, but if you want to appeal, plan on needing these. Plan on paying an attorney to write these.)

7. Filing for a new hearing. (Many states require this if you want to appeal.)

8. Do you have a ruling that you can appeal?

Who writes the order after the final trial? Drafting the final orders.

Some judges write their own orders. But this is not the case in most states. Most of the time it is the prevailing side’s attorney who writes the orders. The side that wins has their attorney write the order and present it for agreement to the other side (opposing counsel) and then submits to the judge for signing. But hang on, it might not be that straightforward or cut and dry.

What happens if the final order is contested? Paying your attorney to negotiate the terms of the final order.

What happens if you and the other side disagree with what was ordered. This doesn’t mean this is opportunity to argue for something you wanted or they wanted and it’s time to argue over those. This means that one side might believe that the judge ordered only standard visitation for you and you believe that the judge ordered extended standard. There can also be things that the judge leaves for the parties to agree on, like what counselor will be used for reunification or what day of the week you will exercise for your standard or extended standard visitation. If this is the case, and the two of you are in disagreement on what you heard, you might have to order the transcript. You can order just the part of the transcript where the judge made the decision. You don’t have to order the entire transcript for this.

If the two of you still cannot disagree then a hearing is requested and the order is argued over in a hearing in front of the judge. The judge makes the decision on what the order should say.

Your order should not be different than what was decided upon at the final trial. So if anything additional gets put in that you don’t feel is addressed within the scope of what was ordered, you can proceed with additional dispute over the entry of that order. There are many different ways to do this. That is addressed below.

And even if there isn’t much disagreement, there will probably still need to be negotiations on things that the judge left open like what day of the week you exercise your visitation. There could be some details that need to be agreed on like perhaps a counselor that will be used for the children. The holidays that you celebrate and the days that those fall on. Not everyone celebrates Christmas and Thanksgiving. There are many parents who have different beliefs so they need different days. If you did not have those to provide the court at the time of the final and they grant you the protection to have your children during the times that you recognize certain holidays, you could find that your attorney is being engaged with the other side to negotiate these too.

How long does it take to get the final order entered? How long does the side that wins have to get the order into the court and signed?

If you didn’t get the judge to specify a date then you would defer to statute. If there is no timeframe in your statutes, then you could be left in limbo for an indefinite amount of time.

We recommend that you ask the judge to set a date so you don’t leave yourself in limbo like this. A recent trial we attended the judge ordered that if the order is not submitted to the court by a date certain that everything would revert back to the prior order and it would be as if the final trial never happened.

So to avoid this in your situation, make sure your attorney asks for a date certain. Otherwise, if the other side doesn’t like the orders, they might drag their feet and leave you in limbo. It is a terrible position to be in where you cannot enforce your rights and time with your children or anything else that the court ruled on.

What do you do if your ex violates the order before it gets signed?

If your ex violates your visitation and isn’t giving you the children. Try to get that in writing. If you use Our Family Wizard, try to get them to put that in writing on OFW. Still try to pick up your children according to what the judge ordered in the new order. Take a witness with you and videotape your attempt if you are able. Sometimes you can have the police try to talk to your ex, but without a signed order they probably won’t be very helpful other than maybe trying to talk to your ex. Some won’t even do that if you don’t have an order and will tell you that it is a civil matter and to go back to court. They’ll all tell you that, even if they talk to the other parent.

Just try to get it recorded somehow, someway, somewhere so that you have something to inform the judge if you decide to take that back to court. If you just have one incident of just a couple of hours of keeping your children, most courts aren’t going to see that as enough to re-visit their order and change the order.

But if the other parent continues to violate, you might have enough to ask for the court to alter, amend, or even suspend the current order and have a new hearing to create a new order. More on this later in this post. Keep reading…

What other expenses are commonly encountered?

Details, details, details…open ended details can be expensive.

The judge might have ordered standard visitation and made a couple of custom alterations to it. The other side might try to argue over these alterations. Most commonly, the other side will argue over when the new order starts. If the two of you cannot agree on what is ordered, you go back to the judge to tell you what they ordered.

Sometimes your attorney will want to order the part of the transcript that recorded what the judge ordered. This can cost several hundred dollars depending on the number of pages of that part of the trial. But it is even more expensive and takes longer to order the entire transcript. You may need that as well as you will see later in this section. But getting the entire transcript can take even longer and will cost eve more. You can even try to get an unofficial transcript from the court reporter. Just tell them that you need it for the drafting of the final order and ask them if they can just e-mail a soft copy of it to you. Watch out for rush charges too.

Appealing…

You also might want to appeal the order. If your rules require findings of fact and conclusions of law to appeal then you will need these written by your attorney if the judge does not write them in your area. Many areas have the attorneys write them. We did not know this until we went through it. We were shocked the first time we were asked to write them ourselves. And if you don’t, the other side will write them. Your appellate court is going to use these as proven facts. So your findings of fact should only be facts that were proven in court. Your conclusions of law will be a little more challenging if you are not a trained attorney. If you cannot write these on your own, then you are going to need the transcript and take it to an attorney to get help with this. Transcripts can take time to get and Findings of fact and conclusions of law have statutory timeframes. This makes it problematic to get the transcript on time, pay an attorney to review it and to draft these conclusions for you.

Get a copy of some examples of findings of fact and conclusions of law from your local law library to get an idea of what you need to accomplish for this part of the process.

What Happens if an Order Gets Entered that Did not Reflect What was Ordered Accurately?

You can file a nunc pro tunc and have the court correct the order. Administrative corrections can be done like this. Any correction that is made due to clerical error or error in accurately reflecting what was originally ordered is retroactive so that the parties are not prejudiced. Other types of errors can be requested to be fixed in a Motion to Alter or Amend the order. You might also have to file an appeal on the order if the court refuses to correct an error.

Seek an attorneys help for other tools that might be available to you to challenge an incorrect order. There are other options for some people like a motion to vacate or void the order, etc. You would have to make sure that you have the elements necessary before taking those actions. Anything you do in court, can hold penalties. So if you are found to be asking for something where there is no relief, you can end up paying the other side’s attorney costs and court costs. So make sure that you have proper grounds and argument before proceeding.

Can you enforce the order before it is signed? What Happens if the Other Parent Violates the New Order but the Order has not been Signed by the Court Yet?

If neither party has signed an order, in fact, you might not have seen a written order yet, and the other parent won’t give you your children until the order is signed, you cannot get jail time in most states until an order is in writing and signed. It is difficult to hold someone in contempt for a non-written and non-signed order. You can make it known to the court and ask the court for relief.

If the other party is violating and the judge made it clear when your new order begins, you can let the judge know and ask for relief. The relief will be limited if you have no signed order. You could use the violations as a way to try and get the judge to flip custody. If a judge thinks that they solved the matter by awarding the other parent primary, but the other parent is narcissistic and controlling and it has made it impossible for you to exercise the limited rights the judge has spared, you can try to get this back in front of the judge and ask for a change in custody by showing the judge how the new order is not going to serve as a solution but instead has exposed the true problem.

All of this takes time and money. So make sure you plan ahead for all of this. When you think ahead you don’t allow the other side take further advantage of you.

Your course of action and your interactions with the other parent after the final can cause you to lose what you won or win what you lost…

Many times a parent is NPD and they will mess up once they are given more power. It is inherent of this personality to do so. You have to be ready to jump on this opportunity to get orders corrected. And you might be able to avoid having to appeal if you can demonstrate that the other parent has taken advantage in ways that interfere with the rights that the court has said you have, even if those are very, very limited.

We understand that it is upsetting to have a court side against you, so make sure that you are not reacting to the emotional anger and upset and frustration. Don’t put yourself in a position where they can cause you more damage and devastation. Be smart about how you proceed and what kind of action that you take.

Here is an example:

You send your ex a message on Our Family Wizard that you will be keeping your children all day Monday because school was canceled due to weather. Normally you drop your children off when school resumes on Monday after your weekend visitation.

Your order says that you drop the children at the start of school. But your order also says that you keep the children when there is holiday time that falls on the Monday following your weekend.

You feel that this means that if school is out you get to keep your children.

Your ex and their attorney is interpreting the order to mean that you only keep them on holidays. They do not consider school being closed due to weather as a holiday.

What do you do?

First there is much more to consider than just the order itself. You just had a final hearing where the judge reduced you from extended standard to standard. Ask yourself does the judge see you as causing the conflict between the two of you? Have you had any success in the past convincing the judge in your favor? Where are you starting from? Is this going to help you gain your rights back to your children? What is your overall goal here? Do you want to spend all of your money defending yourself in court for what the court might see as you violating or do you want to be able to conserve your resources for arguments that might restore your time back with your children and not give the other side any leverage to continue to hurt you and your child long-term?

Sure you might be able to argue “substantial compliance” with the order and claim confusion. But what does that really get you in the long run? An expensive battle where you have bad posturing and are groveling and begging for the court to see the order your way.

Or you could ask the court for a clarification for future days like this and not be seen as being difficult just to be difficult by keeping the children when you were unsure.

Most clarifications like this don’t usually require a hearing and can be done in writing to the judge or the coordinator (follow your local rules) as long as the other side is copied on these communications. And this doesn’t cost you anything to do this other than your attorney fees. You don’t usually see someone sanctioned for using clarification properly if it doesn’t go to a hearing.

You can give the other parent the children at the normal time that school would have started and file the clarification and not run into any possibility that the other side tries to hold contempt over your head for keeping them when you were not sure. And ask the court to clarify the order so that there isn’t this confusion next time.

I understand that sometimes you might be encouraged to keep children when you are not sure. I personally am not a big proponent of that because it causes you additional stress, it gives the other side opportunity to make you look bad and they continue to attack you. When you are being alienated from your child, which is almost always happening in these cases, you cannot afford to have added stress. Intensity and duration of stress under these circumstances can lead to post traumatic stress disorder (PTSD). This can cause additional barriers and make it even more difficult for you to fight back and get your rights back to your child.

Ultimately, it is up to you what decisions you make. I personally like to reduce the opportunity the other side has to attack you, especially when you are dealing with an abusive and controlling ex, while preparing to take action that can be more effective and less stressful.

If you do have an ex that has bipolar disorder, NPD, or any other disorder that causes them to be overly controlling or to bully you, you are probably going to be dealing with a lot of harassment and interactions that are upsetting. You are going to feel the strain of your parent-child bond being destroyed.

Knowing this can help you make better decisions so that you have opportunity to strike back and get your rights to your children back as soon as you have something that violates the rights that the court has left you with. (You are probably going to appeal the order but you cannot do this until the order is actually entered. So we are talking about just the time period between the ruling of the court and the entry of the order.) It is difficult to be patient during this time, but these personalities do mess up. The courts have empowered them further. You are probably going to experience more alienation of your child and it is going to be extremely difficult for you to deal with the additional strain and pressure from continued damage to your relationship with your child. You certainly do not need additional stress and costs of more attacks because you are seen as violating what the judge ordered. Of course, you can say that if you would have difficulty enforcing orders before they are signed then the other side will too. But this still takes resources (time, money, energy, stress).

You need to reduce your stress as best you can and preserve  your resources so you can preserve and restore your rights. This is how you fight more effectively 

Another example of what you might encounter before your final order is entered:

Your child starts saying that they don’t want to go with you on your time. The ex has their attorney sending your attorney e-mails stating that the child doesn’t want to go.

You insist on them going and the child then tells you how upset they are with you.

You don’t know whether to give in or keep insisting that the child come. you are worried that the judge could use this against you further.

We recommend that you continue to try and exercise your time, as soon as the other parent does not send your child, you make it known to the court that you did not receive your time with your child. You will need to be prepared to argue your rights again to the court if they try to restrict your time further or burden your time with a counselor or other third party person. You will need to be prepared to offer the solution that you feel is in the best interest of your child. And remember to put on the record that your determination of what is best for your child overrides any third party and even what a judge might feel is best.

Naturally a judge is not going to like this said but it is necessary if you are going to preserve error. And if you are worried about the judge siding against you, they have already done this, so you will have to stand your ground if you want to be able to challenge this abuse of power. (Remember we are not suggesting any of this if there is abuse that is occurring to the child. If the child is not wanting to be with you because you have abused the child, then you need to get help for your behavior and not hurt your child further.) But if the other side is just making the child feel that you are not an adequate caretaker because the two of you just simply disagree on how to raise the child, this should not be grounds for restricting you. As long as you preserve error you can use your rights arguments to try and overturn these restrictions.

But what if the ruling is in your favor and you cannot get the order entered? What if the other side keeps delaying and dragging their feet and getting the hearings continued?

It is very upsetting to get a ruling in your favor and not be able to enforce it or get the other side to sign or agree to the entry of that order and have the start of that order be delayed. Be aware that the other side can get you to mess up and then get the court to change their orders by suspending the current order (issuing a stay on it) and granting them a new hearing to hear new evidence based on decisions that you made during the pendency of the entry of the order. I’ve seen people lose after they have won.

When you need someone to help you make better decisions this is when a strategist and coach can come in handy. Attorneys are focused on the technicalities of the law but no one is helping you cope with the frustration that comes along with the many things that happen day-to-day after these orders are made. Coaches and strategists continue to help you make decisions that can help you keep your calm and make decisions that could even benefit you in the long run and get things turned around if the court made a bad decision in the first place.

But if you don’t know that these opportunities exist you might not be prepared and you are not conditioned to see these opportunities.

Get the book and the class and learn your rights. Contact us if you need additional help understanding your rights or helping your attorney put these into your arguments.