by Laura Stevens, and other WFJ Advocates
First step is to look at the family court website in your county’s jurisdiction for as much information as you can obtain. There is usually lots of important information in written format and videos about the process and expectations regarding family court that is specific to your jurisdiction. There may be information specifically for someone who is Pro Se (representing oneself) as well. Before writing a motion, check with the legal clerk at the courthouse to see if they have forms for your motion (it could also be on their website). If they do not have forms then you can create your own form. You can Google other cases in your area to see how the form should look. Or if you have received a motion from the opposing counsel, you can copy the format of that form.
Not only is there a format to follow but there is certain lingo and pertinent information that is generally used in the initial and last sections of the motion. Read over other motions that are within your jurisdiction to understand the lingo. You should be able to Google other cases to determine proper forms. You may also try your local legal aid facility, self-help desk, or your state’s government website to get examples or copies of the forms.
When writing a motion, stick to the facts only. Be professional and unemotional when writing the motion. Be as succinct and as clear as possible. Always consider the best interest of the child and be supportive of the other parent and child’s relationship. This means always consider the least restrictive visitation and interaction between the other parent and child as much as possible while still protecting the child. The courts do not like to take away visitation (regardless if it’s in the best interest of the child) so you will need to be as responsive as possible in showing that you are willing to keep that relationship going as best you can.
If applicable, you can request in the motion that after the hearing/trial that you would like the judge to speak with your child/children privately in chambers. If you expect your child will be speaking with the judge, be sure to bring your child to court but have someone there to watch the child outside the courtroom as they will not be allowed in court during proceedings. The judge may or may not choose to talk with your child.
Keep the motion as short as possible. Although judges are supposed to read it, they don’t. If they do read it, you don’t want them to have to read a book, just the most important information as succinctly as possible. Keep it child-focused as much as you can and don’t dilute the motion with minutiae. Although the topic matter is serious and very traumatizing and dramatic, when it comes to your motions and presentations in court, you want as little drama as possible. Judges see this day in and day out and are not only desensitized to it but they can get annoyed by it, sad but true. To you, this is your whole world, to them it’s another annoying day at the office. Stay emotionally-even, as confident as possible and respectful and polite, whether it be in writing or in front of the judge.
Once you have completed your motion and if you are Pro Se, you will need to make sure you get your motion notarized before submitting to the court and to opposing counsel. If you are unable to afford filing fees, you may fill out a fee waiver through your local court clerk; this is also known as an Affidavit of Indigency. You will need to do this prior to filing your motion with the clerk.
Prior to filing a motion, if appropriate, try to come to an agreement with the opposing party as most judges want to know you at least tried to rectify this prior to involving the courts. This effort could go a long way with the Judge. And conversely, no effort might put you on the wrong side of the judge’s favor.
When your motion is completed, you will then need to make 3 copies (with notary). The original gets submitted to the court. One copy goes to opposing counsel and if the opposing parent doesn’t have a lawyer then you will need to either have it mailed directly to them or it may have to be served to them by a processor. You will need to check with your local court. Whether sending it to the lawyer or the individual, you will always need to send it certified with a signature required. The third copy is for your records. Make sure all copies include the exhibits. Keep the postal records that you sent them certified and with a signature and keep the signature confirmation when you receive that as well. Some counties require you to file the signature confirmation with the court.
Submit your motion to the court first as some courts will give you a date and time for court and then you will need to attach or fill in this date and time on opposing counsel’s copy of your motion and proof of service form. The proof of service goes with the motion to prove you served it to the other party.
Some motions will be given a date and time for court shortly after it’s filed and some motions, like emergency motions, ex-parte, requesting a guardian ad litem etc. may be given a date and time during the filing. Some of the emergency motions and other motions need to be called up for a hearing, which means you don’t just file the motion and expect to be given a hearing but rather, you file a motion and have to request a hearing. Some states give you a hearing date at the time of filing so you can put it on the motion you are sending to the opposing side along with the proof of service form. Make sure you ask the clerk to schedule your case for the amount of time you will need – one or more hours or a whole day.
Check the county website for timelines that are associated with your motions. Once you file a motion then the opposing side has a certain amount of time to respond and vice versa. If those timelines are not on the county website then ask the courthouse clerk (they might not have or be able to give you this information) so make sure you have researched and you know all the timelines for everything you do.
For your court date, make sure you bring all your motions and opposing parent’s motions to court with you. Bring all your exhibits and evidence you plan to enter with the court. Make sure you bring extra copies of all the above so you, the opposing parent and the judge can see it. If you have witnesses to call, you will need to bring an additional copy for them if it is evidence that pertains to their testimony. It is crucial that you research and find out how to submit evidence during the trial as each jurisdiction may have different protocols.
Additional information on self-representing yourself by Resource Center on Domestic Violence, Child Protection and Custody https://rcdvcpc.org/ is below. These links will talk about specific topics regarding court.
10 things to know about family court:
10 Ways to find help with your case:
10 Steps for presenting evidence:
10 Things to know about parenting plans involving domestic violence:
Custody, Mediation and Domestic Violence:
How to gather technology abuse evidence for court:
Websites that have additional information. These websites may pertain to a certain jurisdiction but it shows you examples of what you can find out there to help research your own case. The following examples are just a few examples of information that can be found on a local family courthouse website and even broader searches to help with representing yourself, best interest rules, submitting
evidence etc.
2. Locate Your State’s Self-Help Center
The American Bar Association has each state’s self help center listed on the following link. The centers provide information, forms and instructions on matters related to family law.
You can also google: (your state) – legal self help
(your state) – legal aid
3. Mediation
“A Judicial Guide to Child Safety in Custody & Visitation Cases” written by the National
Council of Juvenile and Family Court Judges states: Mediation is generally not
appropriate where safety issues (domestic violence, stalking, coercion, or sexual
assault) of a parent or child are identified.
4. Safety Planning for Unsupervised Visitation
“When Dad Hurts Mom: Helping Your Children Heal the Wounds of Witnessing Abuse”
By Lundy Bancroft
The following is an excerpt from the above book by domestic violence author and speaker, Lundy Bancroft:
- Have them think through the setup at their father’s home, perhaps even drawing a diagram with you, to consider where they could get behind a locked door, get access to a cell phone, or both.
- Make sure they know your cell phone number by heart, including the area code.
- Send them on visits with a photograph of you that they can look at for reassurance, a stuffed animal they can hold, or other objects that can help them get through times of feeling afraid, insecure, or lonely.
- Let them know they should make their own safety their top priority, even if it means they need to go along with their father in speaking badly about you or take other steps to placate him and keep him happy.
- Prepare them for how best to deal with his efforts to pump them for information about you (which a large proportion of abusers do in unsupervised visitation). Let them know they can tell him what he is asking for if they feel that their safety depends on doing so, but that it is important when they get back home for them to tell you what they told him. (For example, if he has found out from them where you work, or the fact that you are dating someone, it is important for you to be able to plan for his possible reactions.)
- As above, discuss how the children might respond if they see signs that Dad has been drinking or see other danger signals, including what to do if he attempts to drive in the car with them while he is intoxicated.
- If you are concerned about possible abduction by the abuser, rehearse with your children their full name, the town and state you live in, and how to call 911. Discuss strategies for passing written messages to other adults to indicate that they are being abducted, or to leave messages in public restrooms (especially women’s rooms, where the abuser is unlikely to go).
5. Practice Telling Your Story
Even though you lived through the abuse, you may never have had an opportunity to sit down and talk about all of the incidents of violence in an organized, clear way. Prepare and use a timeline to help yourself present your story clearly and succinctly. When you are giving your own witness testimony in court, depending on your state’s rules of evidence, you may be able to refer to your notes when testifying to refresh your memory but you may not be allowed to read your notes aloud when you are on the witness stand. You can ask the judge if you can take notes with you when it is your turn to testify in case you need to remember a date, etc. However, be prepared to testify without them if the judge says “No.”
If you are pro se and presenting your motion, you will be able to read your motion and present your case with all of your notes and evidence. It is only when you are on the stand as a witness that you cannot use notes and read your testimony.
6. Filing a Hipaa Complaint
If you have a therapist or counselor for you or your children who is breaking confidentiality, you have the right to file a Hipaa complaint at the above link. Filing a patient safety confidentiality complaint link is also on the above link.
You can also file a complaint with your state’s licensing bureau for therapists/counselors if you have concerns about possible ethical violations. The licensing bureau in your state will have a complaint form on their website with instructions on how to fill it out.
On the Day of the Hearing
1. At the Hearing
- Be on time.
- Have your witnesses ready.
- If you have subpoenaed witnesses or documents and they are not in court, you should inform the judge.
- Dress as if you had a job interview.
- Speak directly to the judge; Do not speak or argue with the abuser during the hearing. Although it may be upsetting to hear the abuser say things that are untrue, you should have the opportunity to tell your story directly to the judge. It is helpful to take notes to help you remember the points you need to refute.
- Address the judge as “Your Honor.”
- Be prepared to spend all day in court. (There may be hearings before yours.) If you have children, try to find someone to take care of them while you are in court.
- If the abuser comes to court with an attorney, and you do not have an attorney, you may ask the judge for a “continuance” so you can look for an attorney.
- It is your right to move seats if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you. Tell the security guard if you are afraid for your safety.
- Try to remain calm. Never lose your temper in the courtroom.
- Always tell the truth.
- If you don’t understand a question, just say so. Don’t answer a question that you don’t understand.
- If you don’t know the answer to a question, just say so. Never make up an answer.
- Remember that you know your story better than anyone – you are the expert. Don’t let the abuser or the judge or an attorney throw you off.
Check out the order of events during the trial on your state’s government website. You can also see the order of events for a restraining order in your state at:
2. Introducing Exhibits
Exhibits are anything other than testimony that can be perceived by the senses and presented at the trial or hearing. Exhibits include:
• Real evidence — tangible objects such as clothes, weapons, tools
• Demonstrative evidence — evidence that represents or illustrates the real thing such as photos, videos, diagrams, maps, charts
• Records — government or business writings, hospital records, police reports, payment records
• Writings — evidence other than records that are in writing such as letters, receipts, contracts, promissory notes
Foundations
Before an exhibit can be offered into evidence in court, a foundation must be laid for its admission. When evidence rules require a fact or event to occur before an article can be considered evidence, that fact or event becomes part of the foundation necessary for the article’s admission into evidence. The facts and events that must be shown represent a judgment as to what information demonstrates that the evidence is reliable and trustworthy.
For all exhibits, the first foundation that must be laid is that the article is authentic. If writings and records are offered to prove that the statements within them are true, a foundation must be laid that the article meets a hearsay exception. If a writing’s terms are at issue, its proponent must introduce the document itself – the best evidence- rather than testimony of what the document says.
Authentication
A proper foundation means that the material must be proved to be an authentic document and to actually be what it purports to be. Basic fairness dictates that if an article is to prove something, it should be the genuine or authentic article.
Most foundations for exhibits introduced in a court are laid by live witness testimony. Many times you will have more than one witness who can lay a proper foundation. You should choose the one who has the most knowledge of the exhibit and makes the best impression on the judge. Sometimes you may need more than one witness to lay a proper foundation.
The Mechanics of Getting Exhibits into Evidence
Some hearing officers r
Even if you must put all items into evidence at the beginning of the hearing, we suggest that you refer to the document and lay a foundation at the most logical point in your case. You should always make copies of all exhibits and give them to the opposing advocate when they are introduced.
It’s good practice to let the opposing advocate know what exhibits you will be introducing, particularly if you deal with that advocate on a regular basis. Some agencies require that exhibits be submitted to the hearing officer 5 days before the hearing. Others require that parties exchange exhibits before the hearing.
Formal Method.
Here is the most formal method, introducing the exhibit at the appropriate time in your case.
Step 1. Have the exhibit marked.
Exhibits are given sequential numbers or letters; 1, 2, 3 or A, B, C.
Step 2. Show the exhibit to opposing advocate.
In many instances, the opposing advocate has already seen the exhibit or has a copy of it, so this step is unnecessary. In some hearings you also give a copy to the judge at this point or make sure that the judge can see an exhibit you can’t copy such as a diagram or tangible object.
Step 3. Ask permission to approach the witness.
In only but the most formal hearings is this step required. In many hearings, the witness is sitting next to you.
Step 4. Show the exhibit to the witness.
Step 5. Lay the foundation for the exhibit.
Step 6. Move for admission of the exhibit in evidence.
A Your honor, I move that Claimant’s 1 be introduced into evidence. (Hand or show the exhibit to the judge.)
Step 7. Have the witness use or mark the exhibit.
Many hearing officers eliminate formalities and introduce all exhibits at the beginning of the hearing, but remain open to introducing them when appropriate.
Opposing Exhibits
To show that the item should be excluded or should be given little or no weight you should argue that one or more of the foundational elements are missing. You can make the argument at the time the exhibit is offered and in your closing argument.
• If the agency produces no evidence or unreliable evidence to authenticate the item, argue that the item is irrelevant because no proof exists to support a finding that the article is what the agency says that it is and hence has no connection to the case.
• If the agency produces a witness that tries to authenticate the item, you can cross-examine the witness to show that one or several of the foundational elements is missing and hence the evidence is unreliable; OR
• Have one of your own witnesses testify to show that one or several of the foundational elements are missing.