Explanation of Motion Hearings in Family Court
Motion hearings are designed to resolve important issues in a more expedient manner than full divorce trials or custody hearings. They are not used to establish/modify primary issues (i.e. custody, primary residency, etc.). Instead, they are designed to address temporary issues that must be resolved during the pendency of a case. At times, specific motions are filed to resolve a specific issue. At other times, specific motions may be filed relating to secondary issues that are connected to the principal dispute. For example, if the primary issue is termination of a minor’s parental rights then a party may file a motion seeking termination of child support as it relates to that minor child. In this example, the issue may be relevant to the ultimate resolution of the primary dispute.
Motion hearings are intended to resolve the issues on an expedited basis. A motion hearing may be set for four (4) to six (6) weeks in the future. To the extent evidence is going to be introduced at the motion hearing, the parties are required to disclose that evidence in advance of the hearing. In other words, prior to the motion hearing , the party who filed the motion will have had to disclose his/her affidavit(s) in support of the motion and all documentation he intends to use to support the motion. The other party will also be required to disclose any affidavits he/she intends to file and any documents he/she intends to use to support any response to the motion. An affidavit is a sworn statement and generally cannot be offered into evidence at a trial unless there is an opportunity to cross-examine the affiant. However, North Carolina rules provide that affidavits may be utilized at a motion hearing because of the expedited time considerations.
A motion hearing is designed to be a more expedient resolution to an issue than allowing that issue to simply be determined at a trial. This is not to say that a motion hearing will be quicker or cheaper than a trial – although it generally will be. It simply means that it is designed to allow parties to get a quicker resolution to a particular issue and in doing so, it may not be necessary to consider that issue during a later trial where the entire family law case is at issue.
Types of Motions in Family Court
There are several types of motion that can be filed in connection with family court litigation. The most common motion would be a Motion for Temporary Orders. When one party moves the court to borrow, encumber, sell, convey, or otherwise interfere with marital property, the other party typically responds by filing an Emergency Motion to Freeze Assets. And where one party is not supporting the other during a divorce action, either party may file a Motion for Interim Alimony. Where the action involves children, motions for sole legal and physical custody, interim visitation, and child support are also commonly filed.
Sometimes motions are filed because discovery is being resisted, and because a court order is necessary to compel full responses to interrogatories, requests for production of documents, requests for admission, and subpoenas duces tecum. Usage of these motions can result in one party being held in contempt of court for failure to respond.
Motions are sometimes filed at the conclusion of a case to modify a final order or judgment, such as a motion to modify an award of alimony or child support, or for a modification of custody or visitation. Here too, the court retains the ability to enforce its prior order in the event that the judge concludes there has been a wilful disobedience of the order. Otherwise, the moving party must typically establish a significant change in economic need (for alimony), earnings or income (for child support), or other material circumstances (for custody or visitation).
Many other types of motions can be filed, including for a waiver of a court rule, to intervene, for joinder of parties, for joinder of issues, for intervention, for summary judgment, for substitution of counsel, and for substitution of parties. There are even motions for recusal, and for a change of judge.
How a Motion Hearing Works
A motion hearing is scheduled after a motion for non-removal is filed with the family court. The filing party, the moving party, must notify the other party of the motion hearing time and date. A 30-day notice is typical.
Due to the complexities and specific requirements of family court rules, this notice must be completed correctly. The experience of the attorney is helpful for proper notice to be served. This notice does NOT have to be done by a sheriff or Deputy Sheriff, however the notice DOES have to be served by someone who handles this action routinely. It would not be a good idea to have the friends or family members of the moving party serve the notice. There is no requirement that the notice or motion be served in a certain number of days prior to the motion hearing, however, it must be done in a way that allows the other party a fair opportunity to get attorney representation before the motion hearing.
After the other party has been properly served, the moving party files an affidavit of service with the family court. A sample of an affidavit of service is attached here. The affidavit of service shows specific details about when the notice of motion and motion were served on the other party. It must also have the signature of the person who actually served the motion.
The moving party must show up at the motion hearing and present his/her side of the story to the family court. Generally, the moving party gets to speak first and explain his/her position to the family court. After the moving party is finished explaining the situation to the family court, the other party presents his/her side of the story. Only the information documented in the motion papers, the exhibits attached to the motion, and the affidavit of service are considered at the motion hearing. Other information that is not part of the motion papers, that was not previously provided to the other party, and that was not provided to the court may not be considered at the motion hearing.
How to Prepare for a Motion Hearing
If you have filed or are considering filing a motion, the first goal is to secure legal representation to navigate the upcoming court system with as much efficiency as possible. Even if you only have a few days to prepare for the hearing, it is important to contact a family law attorney right away. All too often litigants make the mistake of proceeding with a motion before a judge having not consulted with an experienced attorney who could assess the circumstances and advise them of their rights as well as the potential outcome of the hearing.
A good family law attorney will be able to carefully analyze the facts of your case as well as advise you about what issues may arise during the course of the motion. If there are witnesses or documents that you need to present to the judge, it is important to get the matter organized so that you can present your case effectively, whether you are represented or not. While an attorney may still be able to represent you even a day before the motion hearing, you may not be able to present the court with all of the evidence to support your claims or defenses in a timely fashion. For this reason, it is advisable to consult with a lawyer as soon as possible.
One of the more common situations in which there is not enough time to retain counsel is when a spouse is served with divorce papers and given only a few days to respond before the pending divorce hearing in family court. In this situation, a spouse must quickly assess how to appropriately respond to these claims. A family law attorney, for example, may be able to present a protective order prohibiting your spouse or other parties from selling, liquidating, or removing assets from various financial accounts while the divorce or child custody action is pending. If you do not have enough time to retain counsel, it is still possible to file to seek relief from the motion hearing only to ask for a short period in which to prepare.
Keep in mind that as the person seeking relief, you have the burden to support your claims in the motion. The documents that you submit in such cases are known as affidavits. In some cases, an affidavit from a party may be sufficient to convince the judge that you have a need for ordering whatever relief is being requested; however, if you have witnesses, photographs, reports, charts, or other documentation to support your claims, these documents should be presented to the judge in conjunction with your affidavit. An attorney can help you complete an affidavit.
Possible Results of Motion Hearings
**Understanding the Purpose of Family Court Motions**
The Connecticut Family Court has a number of ways to determine issues between parties. Frequently, when an issue cannot wait for a final hearing, it must be decided by the court on a short term basis pending the final hearing. In these circumstances, the court hears arguments from the parties and will either grant or deny requests for temporary orders.
There are a number of potential outcomes at a motion hearing:
- Continue the issue. There may be a number of reasons why the court will decide to continue an issue. Perhaps, the motion has been expedited, and will have to be returned to court fairly quickly. Perhaps, the parties need additional time for discovery or to attend mediation. The court will give the parties an additional date to prepare for the motion and to argue the pending issue.
- Grant it. The court may decide that the issue, as presented, is acceptable and enter an order in accordance with the party’s request. Typically, the order will last until further order of the court or until the issue itself is resolved likely after a full hearing .
- Deny it. The court may decide that the requesting party has not met its burden on the motion and deny it. This can occur when there are legal grounds to support the request, but the requesting party didn’t adequately prove its case with the evidence or testimony presented.
- Deny it with a written decision. If the court feels strongly about the parties position and/or it’s a significant issue, the court may deny the motion and issue a written decision setting for the legal principals involved in the case. While the court does not issue a written decision on every motion, a written decision can be very helpful to the parties, particularly in settling the case.
Ultimately, the court may or may not hear the motion and enter an order resolving the issue. Regardless of the outcome on the motion, the parties have continued obligations to one another. With regard to child-related issues, the parties are required to abide by the best interests of the minor children. With regard to financial issues, the parties have an obligation to deal fairly and in good faith with the other party’s finances.
Role of Attorneys at Motion Hearings
The use of attorneys in front of judges at motion hearings is always a double-edged sword. On the one hand, the assistance of experienced counsel familiar with the myriad of issues that often arise in the proceedings can be extremely valuable to the Court. On the other hand, attorneys can sometimes have trouble simplifying and streamlining contested matters on the record by failing to make themselves known to the judge or simply trying to argue what they feel is best for their client without considering the counterparts’ position.
For example, a party may come into court who has a motion to enforce an order that has been violated. The aggrieved party is emotionally upset. A case that should last 5 minutes now takes 30 plus minutes due to the parties arguing with each other – if not the Court – back and forth over how the other side violated the order. Someone has to "play grown up" and determine how they want the parties to proceed.
While it is understandable why one would expect the aggrieved party to need a bit of counseling after their ex-spouse or partner violates an order, it is understandable why one would ask why the other sides’ attorney would not take it upon themselves to counsel their client against such argumentative behavior. It can be difficult to reinscribe a motion for contempt. Judges will not know how a case will go if things are not kept simple and lawyers crowd the record with unnecessary information and argumentative dialogue.
As part of a motion hearing that will last 3 minutes, it is appropriate to ask the Court for sanctions or set something down for another hearing but there are limits to the number of times that something can be done and many times lawyers can take these opportunities to ask for an amount they think is best. In fact, sometimes lawyers will "grab for the whole enchilada" at a hearing. There are many factors a court must consider in determining how much actual financial damages a party should fairly receive. If you ask a judge to make a decision regarding such issues with little facts to back up your claim, the judge may likely not rule in your favor.
There are no easy answers but attorneys do play an important role in motion hearings. Otherwise, courts would not schedule hearings for 3, 5, 10 or 15 minutes. The only way to get to that point (where the hearing takes 3, 5 or 10 minutes) is for the attorneys to take a more "hands-on" approach to narrowing contested issues and responsibilities of their clients.
Helpful Tips for a Successful Motion Hearing
Win the battle before the war. There is a general misconception that if you win a motion hearing, you have won the overall battle. I have seen many cases where the out-come of a motion hearing has little if not any effect on the final outcome. This is more often the case in child custody matters. Trial Judges understand that motion practice is part of every day life and they are unsure of the total extenuating circumstances the parties faced at the time of the dispute. Courtrooms are designed with the intent to facilitate a fair and free exchange of ideas and position statements. Often times parties will negotiate a settlement based on an idea or proposal that was brought up at a motion hearing. Don’t be discouraged if you lose the motion.
Understand the legal framework and rules of court. Simply put, understand the law and court rules that apply to the issues before the court. These rules can be procedurally cumbersome if you try to navigate the waters by yourself. Read the Virginia Code section (s) that apply to your circumstances. See the Rule of Court that correspond with that code section. Review previous related cases that have come before the court of appeals. The code sections can be found here: http://law.lis.virginia.gov/vacode.
Both the forms and rules of court for the Fredericksburg division of the Circuit Courts can be found here: http://www.courts.state.va . us/courts/circuits/fredericksburg/forms.html
Understand that judges must follow the law. Unlike our legislative and executive branches of government, judges must use discretion only as allowed by law. Understand that you may likely lose on procedural issues – even if you are in the right.
Be cordial. Do not let your bitterness towards the other party control your actions and demeanor in the court room. Judges see these tendencies often and are less likely to side with the party that is making it a personal issue. Child custody is often a very personal issue to argue before the court. A motion to suspend visitation, for example, may in fact be personal to the mother because the father is addicted to meth. However, it will help to keep your composure at all times during the proceedings.
Be organized and present your case with confidence. Take time to plan ahead. Know what you are going to say and know why you are saying it. Once you go into court and the issues your asking the judge to rule on are clear, it is hard for the other side to turn the tide in your favor. If you have drawn the court’s attention to the other party’s bad behavior, it is hard to pull the attention off of that to discuss other issues, even if the other issues should win the day. Additionally, know that many judges will assume that your side is right because you are there asking the judge to tell the other person to do something.