How To Read and Understand Judicial Orders Affecting Children
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Transcript of How To Read and Understand Judicial Orders Affecting Children
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Cleveland | Columbus | Philadelphia | Shanghai | Wilmington
www.beneschlaw.com
How To Read and Understand Judicial
Orders Affecting Children
Adam Miller, Esq.Benesch, Friedlander, Coplan & Aronoff
614.223.9315
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Q: What is a Judicial "Order?"
• A written expression of the Court's findings and determinations in a particular case.
• An Order can be affirmative or negative.
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Courts “Speak" Only Through Their Formal Orders
• A judicial Order occurs when a Judge makes a formal disposition in a pending case.
• An order is usually written but can be made orally from the bench.
• An oral Court directive is typically memorialized by the court shortly after it is made.
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What are the Types of Court Orders?
• Entry• Judgment• Decree• Agreed Entry/Order• Interim Order• Restraining Order• Temporary Order• Be alert for combinations of these terms!
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Why Are Orders Made Affecting Children?
• Juvenile Court invokes jurisdiction due to abuse, neglect, dependency allegations
• Child engages criminal conduct
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Family Court Jurisdiction
• Family Court invokes jurisdiction in divorce, dissolution, separation, annulment, or paternity action.
• Disposition of the above requires an order determining child custody.
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• Custody is a fundamental aspect of any case, as it carries significant responsibility and financial attributes -Child support, tax credit, insurance, etc.)
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• The law in most states favors a joint custody or high measures of involvement by both parents.
• Jt. Custody is now known as Shared Parenting.
• Legal standard is the best interest of the child.
• Preponderance of the evidence (51%).
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Family Court Cases Proceed in Stages
• Stage I: Interim Order/Entry
• aka "Temp. Order" for child support, custody, health care, visitation, etc.
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Family Court Cases Proceed in Stages
• Stage II: Mediation/Pre-trial
• Temp order can change now that court has heard some additional evidence.
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Family Court Cases Proceed in Stages
(FRAUD ALERT)
• Losing party at earlier stage tries to alter procedural posture of case.
• Only signed Orders approved by the Judge constitute a valid Court Order.
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Family Court Cases Proceed in Stages
• Stage III. Final Case Disposition. • Expressed as "Decree of __________“
• "Final Judgment of ______________"
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"Shared Parenting Order"
• A school parent must be named in a Shared parenting order.
• Problematic as Court may not always
express in clear concise fashion.
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Who Actually Drafts Orders?
• Asst Prosecutor, attorney representing one (or both) of the parties, law director, clerks, staff attorneys, court secretary, magistrate, even the Judge occasionally.
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Who Issues the Order?
• Magistrate, (30 day appeal)• Judge, (30 day appeal)• Appeals Court (3 members)• Municipal, Probate, Juvenile, Common
Pleas.• Ohio Supreme Court
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What to Do When Material Error Discovered?
• Motion To Reconsider (ALERT). Motion looks like and Order, includes and order, but is not an Order unless Court approves.
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Clerical Error Correction
• Recommended Method: Nunc Pro Tunc, (Latin meaning "this for that").
• Used to fix factual mistakes. Does not always require a motion.
• Can be submitted by private counsel or law director/prosecutor.
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How?
• Use Electronic or Paper Tickler File.
• Calendar "Appointment" to remind for review.
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Analyze Order for Proper Time Category
• 2 week file, Ex Parte Order• 30 day file, Interim, Emergency Orders• 90 day file, Temp Orders• 180 days file. Child abuse, neglect cases.,• 1 year file. (Final Decrees)• Make effort to synchronize with SF
reconciliation submissions.
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MUSTS
• Read Order carefully to anticipate time fame for judicial review, and/or litigant actions.
• Read Electronic Court Case Docket, Ask
Questions!
• Learn to Identify the context of the order.
• Make friends with the other people who work in the system.
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DON'TS
• Do anything without verifying legitimacy of the Order.
• Rely on verbal representations of what the order provides.
• Interpret the Order yourself, ask for legal help.
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ALWAYS
• Bring fresh eyes to Order intake & analysis process.
• Analysis process can be exhausting.
• Take frequent breaks, or perform another task rather than plowing thru the Orders.
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ALWAYS (cont'd)
• Set aside a predictable time of each week or month to focus exclusively on Orders.
• Train a working group at your district of people to eventually develop a cadre of experts!
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Advanced Topics
• How do you reconcile multiple orders from the same Court?
• Last in time rule. Each subsequent order should specifically address custody, tuition for school purposes.
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Advanced Topics
• Grandparent Affidavits, Power of Attorney, Letters of Instruction.
• Technically not an order, but can function as if an Order.
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Cleveland | Columbus | Philadelphia | Shanghai | Wilmington
www.beneschlaw.com
Specific question not addressed above? Call and ask me!
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Adam [email protected]
Bensch, Friedlander, Coplan & Aronoff, LLP
41 South High StreetSuite 2600Columbus, OH 43215
614.223.9300614.223.9330 (fax)http://www.beneschlaw.com