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Who is a Friend of the Court?

November 29th, 2013 · No Comments

Actually, the correct question is “What is a Friend of the Court?” The Friend of the Court we’re describing here is not a person. There is a different type of “friend of the court” who can be a person – or a group or organization – who files a brief in an appellate court case. If they are not a party to the case, they are an amicus curiae (Latin for “friend of the court”). They may be providing additional information to help the court take a broader view of the issue on appeal, or they may be providing additional legal arguments for one side or the other. Either way, they must ask and receive the court’s permission to have their position considered. And they only operate in appellate courts, most notably in the United States Supreme Court.

Since CourtReference’s information is all about trial courts, we want to introduce you to the other Friend of the Court – the one that’s not translated from Latin, which doesn’t need the court’s permission, and which exists only in Michigan. This Friend of the Court is an office in the Family Division of Circuit Court in every Michigan county. It assists the court with custody, support, and parenting issues in divorce cases involving minor children. By providing investigation, mediation, and enforcement services, it also assists the parties in the case.

The Friend of the Court reviews divorce case files to insure that custody, support, and parenting time are adequate and are being carried out according the court’s orders. It also makes reports and recommendations to the court, and provides information to the parties. In many Michigan counties, the Friend of the Court provides forms and mediation services. Forms, publications, parenting time and custody guidelines, and the support formula come from the Friend of the Court Bureau, a state agency that oversees county Friend of the Court offices and provides training for Friend of the Court staff.

The Michigan State Disbursement Unit (a division of the Department of Human Services) is responsible for collecting all child support payments and disbursing them to the custodial parent. But local Friend of the Court offices manage the associated details including address changes, requests for modification, setting up income withholding, and collection of additional fees due to the Circuit Court. Some local Friend of the Court offices collect child support payments and forward them to the Disbursement Unit.

Both the Michigan State Disbursement Unit’s list of Friend of the Court offices and the Michigan Courts website have contact information for each county office.

The Friend of the Court Handbook has details about the Friend of the Court offices’ operations and services that apply statewide. Detailed information about local offices can be found on those offices’ websites. Most Michigan county Friend of the Court offices have a website, and they’re all linked on CourtReference’s Guide to Michigan Courts – Self Help and Legal Resources page. Check the “Michigan Multiple County” section for links to the 13th Circuit Court Friend of the Court and the office serving Baraga, Houghton, and Keweenaw Counties. Check the individual county sections for links to single-county offices.

Friend of the Court websites in smaller counties may have contact information only, or a general description of the office such at that found in Arenac County. Larger county office websites may have extensive content, such as the Ingham County office’s with its video introduction and links to forms, forms help, FAQ, office map, and additional resources.

 

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BEYOND THE PAPERWORK: PRACTICAL ADVICE FOR OBTAINING A PROTECTION ORDER

November 15th, 2013 · No Comments

When you seek an order of protection, you should be fully aware of the gravity of the request and its legal consequences.  An order of protection (or restraining order, protection order, or no-contact order, depending the jurisdiction and relationship of the parties) is a court-issued document that prohibits an individual (the respondent/defendant) from directly contacting the petitioner/victim.  Protection orders are frequently filed to prevent acts or threats of domestic violence, stalking, and harassment, although they can be used to bar other types of abusive or menacing behavior.

A protection order must be issued by a court.   A petitioner may seek a temporary order first, typically an emergency or ex parte proceeding (granted on the request of, and done for, one party).   Only the petitioner is present and the judge will either allow or deny the request order.   If all or part of the order is allowed, a subsequent hearing is scheduled (usually within two weeks) to determine if the order should be continued.  The respondent/defendant can present evidence and witnesses at the subsequent hearing, but must abide by the outstanding order of protection until the second proceeding.  Additional hearings may ensue to determine the scope and permanence of the proscribed contact between the parties.  Violation of the terms of these orders can result in mandatory counseling, prosecution, fines, forfeiture of firearms, and incarceration for the defendant.  Violation of the terms by the petitioner can result in nullification of the order.

Many resources are available to assist you with a protection order in your local community or are available online.  This blog site published an article on Orders of Protection in July 2012, directing you to valuable information in your jurisdiction on CourtReference.  Simply select your state, county, and the ”Self Help” menu option to find links to protection order forms, instructions, and domestic violence prevention programs.

The intention of this article, however, is to provide some practical (and tactical) advice to individuals seeking orders of protection.   I have assisted in both the pursuit and defense of such orders and would like to share some insight  gained through these experiences.  Next month I will address some strategies for defending against an order of protection.

1. Safety First

As a petitioner and victim, minimize the threat or harmful behavior by physically removing yourself not only from the defendant but from any circumstances and environments that can trigger a dangerous encounter.  Have a safety plan and exit strategy ready and share with trusted friends and family members for support and intervention.

2.  Seek Support and Counsel

Contact local violence prevention groups in your area as well as law enforcement agencies.  Notify family and friends of  any imminent danger or threatening behavior and seek immediate assistance.

2.  File a Temporary Restraining Order Request

Obtain the proper paperwork for your circumstances.  Are you filing a temporary or permanent order in the correct county, state, or tribal court?  Particularly if you are proceeding pro se (without legal representation), seek court staff guidance. They can direct you to the appropriate forms, provide them in other languages (or arrange for translation services if necessary), and assist you with their completion.  Many courts offer family or abuse prevention advocates to guide you through the process.  As you complete your paperwork, explain as clearly as possible why you need the order.  You must provide examples of threatening or abusive behavior to substantiate a no-contact order.   If you can provide evidence to support your claims (medical records, witness testimony, arrest records, etc.) your temporary order will likely be granted.   Do not embellish facts to make your case more compelling.  False statements or exaggerated claims will negatively impact your credibility and undermine the success of your petition.  Be as truthful and accurate as you can with details, dates, and descriptions.

Then, review ALL your paperwork carefully (and if possible ask someone else to edit/review).  Make sure you have the most current forms and fee schedule, and pay close attention to the number of copies required for delivery to the court and the respondent.  Review the process for serving papers on the respondent and make sure you are in compliance with all procedures (completed petition, notice deadlines met, proof of service to the court, etc.)

3.  If a Temporary Order is Granted

Both parties must abide by the terms of the temporary order.  As the petitioner, do not initiate any contact, even if you feel the threat is diminished or the terms of the order too harsh. Do not engage in any form of communication with the restrained party, or use friends and family to communicate as ”conduits.”  Keep duplicate copies of all court documents and a copy of the temporary order with you at all times.   Begin preparation for the next hearing to substantiate your request for a more permanent order of protection.

4. Seeking a Permanent Order

To secure a more permanent order, a petitioner must allege specific illegal behavior by the defendant.  If the order is based on false information, the defendant may be able to rebut your account of threatening or violent behavior.  Facts to be asserted should be based on direct evidence, including: testimony, written witness statements, electronic recordings (video, phone conversations, social media posts, etc.), physical evidence (medical records, phone records, arrest and conviction records, etc.).    Any authentication you can provide will be helpful (time stamps on recorded media, signed legal reports or records, dated documents supporting past instances of abuse).

Regarding witness testimony, prepare yourself and those supporting you.  Confirm the availability of your witnesses and arrange for their transportation if necessary.  Prioritize your concerns and practice what you want to say. Make a list of the orders you are seeking to maximize your safety and anticipate respondent/defendant challenges to those requests.

5.  The Hearing

Demeanor and appearance can play heavily at these proceedings  (sad but true).  Do dress for court with some formality (no jeans, caps, casual or provocative apparel).    You are asking the court for assistance; show respect for the judge’s authority and observe courtroom protocol.    Speak slowly and clearly (do I really have to say no gum? Yes, I do. I’ve seen it) and give complete answers.   Speak only to the judge unless directed otherwise.  Interrupt no one.  If you do not understand a question, ask for clarification or simply state that you do not understand.

Arrive at least 30 minutes early to navigate through security and find the courtroom.  When the room is open, advise the clerk or officer that you have arrived.  If other cases are called first, sit quietly and actively listen to the other hearings (it will be instructional).  Turn off all electronic devices (yes, I do have to say that as well).

If the defendant/respondent arrives and you feel uncomfortable or afraid, alert the clerk or officer  (and do bring a friend or advocate with you for support).  Do not engage in any type of communication with the respondent. When your case is called, be respectful, courteous and attentive to the judge and court personnel.  Answer questions directly and honestly, and avoid the inclination to add extraneous detail.  As noted above, practice your answers with brevity and clarity; it will serve you well.

6.  After the Hearing

If the judge issues the order of protection, a written version will be prepared.  Review the final version to make sure all of your requested terms are included.  If any terms are omitted, alert the clerk  immediately.

Again, make and keep multiple copies of all your court papers and keep them in a secure place. Have a copy of your protection order with you at all times.   The respondent/defendant must be served with a final order (Note: throughout this process, neither you and nor any other protected party may serve the defendant).

If you are fearful that the defendant may violate the order, be sure your safety plan is in place and trusted friends, family members, co-workers, neighbors, and local law enforcement have been alerted.  Avail yourself to new technologies (phone apps, personal security devices, building safety systems) to enhance your safety.

Be vigilant and be careful, and remember that you have personal, community and legal resources available to enhance your protection.

Don’t forget to consult CourtReference   to find forms, instructions, contact information, and referrals!

 

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Court System Changes: Consolidation

October 31st, 2013 · No Comments

State trial court systems don’t change their structures often. Most are established by state constitutions, although some are established by acts of the state legislature. Some states have a mix of both; a prime example is Texas, which has both “Constitutional” County Courts (one in each county) and “Statutory” County Courts (commonly called Courts at Law; from none to many in each county, depending mainly on the county’s population). Given the difficulty of changing a state constitution, and the contentiousness present in most state legislative actions, it’s easy to see why court systems are generally left alone.

Texas actually has seven different types of trial courts, while some states have just a single trial court in each county. Most states have two or three types of trial courts in each county: a court of general jurisdiction for the entire county (or several counties), a court of more limited subject-matter jurisdiction (e.g., misdemeanors, civil cases with fewer dollars in dispute), and some courts with limited geographic and subject-matter jurisdiction (e.g.,  City Courts, Municipal Courts, Justice of the Peace Courts, Mayor’s Courts). In some states, each county may also have specialized courts such as a Probate Court or Juvenile Court.

Most of these state trial court structures have been in place for a long time, but some have changed in recent years. When courts’ caseloads increase and budgets are tight, the search for efficiencies begins, and consolidation of several courts into one is an obvious opportunity. The consolidation may be as simple as keeping the court structure but placing it under a single administrative body, or as drastic as changing the structure, names, and jurisdiction of every court in the system.

One of the most significant changes took place in California in 1998. California had a typical 2-tier system of courts, with Superior Courts generally having jurisdiction over felonies, civil cases with over $25,000 in disupte, probate cases, juvenile cases, and family law cases. Municipal Courts had jurisdiction over misdemeanors, infractions, and civil cases with $25,000 or less in dispute. In 1998, California voters amended their Constitution to allow Superior and Municipal Courts to merge; within a short time, courts in all California counties did merge, and now California has a single-tier system of Superior Courts.

The next major change took place in Arkansas. Arkansas’ Circuit Courts and Chancery/Probate courts had county-wide jurisdiction but heard different types of cases; over time their judges began to share assignments. At the same time, Arkansas had District Courts, City Courts, Municipal Courts, Police Courts, Justice of the Peace Courts, and other local courts of limited geographic and subject-matter jurisdiction. In 2000, the Arkansas Constitution was amended to combine the Circuit and Chancery/Probate Courts into a system of Circuit Courts, and to combine all of the limited-jurisdiction courts into District Courts. Arkansas‘ consolidation of the limited-jurisdiction courts was phased in over several years, and retained a distinction between “State District Courts” and “Local District Courts” with minor differences in subject-matter  jurisdiction. Some Local District Courts are still being phased into State District Courts, with the change to be completed in 2017.

Not all trial court system reorganizations change the jurisdiction of the former courts. Two states have changed their systems to combine courts under a single administration, without significantly changing the jurisdiction of those courts:

  • Vermont had separate Superior, District, Family, Probate, and Environmental Courts until 2011, when the legislature restructured the system into Superior Courts with Civil, Criminal, Family, Probate, and Environmental Divisions. Vermont’s Judicial Bureau, which handles civil violations such as traffic and municipal ordinance violations, remained separate.
  • New Hampshire had separate Superior, District, Family, and Probate Courts. In 2011, New Hampshire’s legislature combined the District, Family, and Probate Courts into Circuit Courts with District, Family, and Probate Divisions.

Michigan’s court system has been in a state of flux for some time. Most Michigan counties have Circuit and Probate Courts established by the state constitution, and District Courts established by the legislature. Circuit Courts generally have jurisdiction over felonies, family law cases, and civil cases with over $25,000 in dispute. District Courts generally have jurisdiction over misdemeanors, infractions, and civil cases with less than $25,000 in dispute. Probate Courts had jurisdiction over typical probate matters (e.g., wills, estates, guardianships, conservatorships) and most juvenile matters. In 1996, the legislature transferred jurisdiction over juvenile, adoption, and name change cases to Family Divisions of Circuit Courts. But in some counties, the files still reside in Probate Court offices; and in a few counties, probate judges still hear these cases, sitting as probate judges assigned as Circuit Court Family Division judges.

Michigan court system changes are still taking place. Although the legislature did not make further changes, in the late 1990s the Michigan Supreme Court set up pilot reorganizations in several counties. These counties have consolidated their courts into a single county-wide Trial Court under a single court administration. Some of those Trial Courts are organized into Circuit, District, and Probate Divisions, where the administration of the court system is combined, but each court generally hears the same type of cases it heard prior to the consolidation. Other counties’ Trial Courts are organized into Civil, Criminal, Family, and Probate Divisions. Whether these pilot projects will revert back to their previous structures, or more consolidations will take place, awaits action from the Supreme Court, the legislature, and perhaps from the voters in the form of a constitutional amendment.

CourtReference always shows the current structure of every state’s court system, with an explanation of each court type and the cases that they handle. And CourtReference’s “Self-Help and Legal Research” resource category has links to state court websites with additional details.

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