Keith

Mar

2024

Depositions: What Are They and Why Do I Have To Do This?

Depositions are a very important aspect of the discovery process. Unlike courtroom proceedings, depositions are less formal and typically occur in an attorney’s office, but they hold the same weight as if the testimony were given in front of a judge.

The primary purpose of a deposition is to discover the truth about contested issues such as finances, property, and child custody arrangements. This process helps highlight any inconsistencies in a party’s story, which can be vital during negotiations or at trial. It also allows attorneys to assess the credibility of witnesses and gather information that may not be readily available through documents or written interrogatories.

Participants in a Deposition

The individuals who participate in the deposition include:

The “deponent”, the individual providing testimony, is the focus of the deposition.
Attorneys from both sides, and the child’s Guardian ad Litem if appointed, who are present to ask questions and protect their clients’ interests.
The court reporter plays a silent yet vital role, meticulously transcribing each and every word spoken by all persons in the room to ensure an accurate record is kept of the deposition.

Judges are not present during the deposition although they can be called to provide input in very select situations.

What Happens in a Deposition?

The deposition begins with the court reporter administering an oath to the deponent just like the oath sworn in court. After that, the attorney who scheduled the deposition will question the deponent. The deponent’s attorney (usually the opposing attorney) may object although to questions however, except in very limited circumstances, while the objection can be made the deponent must still answer the question.

Think of the process as a fact-finding mission to gather evidence, expose inconsistencies, and strengthen arguments for the upcoming settlement or trial. While sometimes tense, it is vital for both sides to understand the other’s perspective and build a more complete picture of the case.

On occasion, your deposition may be videotaped so you will also see a video camera and the videographer in the room. If your testimony is videotaped, you may be asked to wear a mini-microphone which attaches to your clothing with a small clip.

Exhibits may also be included in the deposition. When the initial attorney is finished the deponent’s attorney may have questions to ask but the majority of the time, they will not ask questions preferring, instead, to talk with their client afterwards. It is vitally important to speak clearly and slowly so that the court reporter can make a complete record of what is said.

The deposition can last several hours, depending on the complexity of the case and the amount of information needed.

At the end, the court reporter will give the deponent the opportunity to read the transcript first or waive presentment. In other words, the deponent could read the transcript but only to make minor corrections (i.e. incorrect spelling of names, etc.). The final transcript can then be used in the court proceedings.

Preparing for a Deposition

Individuals facing a deposition should work closely with their attorney to understand the scope of questions likely to be asked.

You may be asked to gather documents such as financial records, emails, and any relevant written communication and reviewing these documents may help refresh memories and ensures consistency in responses.

If you had to answer interrogatories in your case, be sure to read your answers to the interrogatories at least two or three times in preparation for your deposition to make certain that your answers are consistent. Any inconsistencies can potentially be used to discredit you in trial although if something has changed this is the time to point out that change.

Many people often about whether the other party will ask them nasty divorce questions. In other words, will the opposing attorney ask questions about a history of abuse or addiction? Will they ask questions about physical or mental health issues, about criminal histories, or about an affair?

The answer is yes. The opposing counsel can and likely will ask you questions that make you uncomfortable and/or embarrass you. One strategy is to ask questions that will embarrass or anger the deponent so badly that they will start spouting off and make rash statements or, if the person is trying to hide something, the person will start shouting the truth out. However, it is important to note that your attorney can object or advise you to refrain from answering. However, just like with the objections, with some questions, even if they seem malicious, you will still need to answer in the interest of the case.

Objections & Protections for the Deponent

Attorneys have the right to object to some questions that are irrelevant, overly broad, or designed to harass. The deponent’s attorney will have to be on guard to make these objections and make sure the line of questioning remains within the bounds of the law.

The deponent can ask for breaks when needed, especially during lengthy depositions but if you try to take a break after a question you must still answer the question before you take the break. It is important for deponents to understand that while they must answer questions truthfully, they also have rights that safeguard their interests and well-being throughout this challenging process.

How the Deposition Testimony Affects Your Proceedings

Deposition testimony carries significant evidentiary weight in divorce proceedings. The transcript locks in stories and facts before the trial because it prevents a party from changing their facts. The deposition transcript can be used to challenge a witness’s credibility if their statements in court differ from what was said during the deposition. This is what is referred to as impeaching the witness.

These transcripts can also be useful during settlement discussions, as they often reveal the strengths and weaknesses in each party’s case. In some instances, the information uncovered during a deposition can lead to a settlement without the need for a trial, saving both parties time and emotional distress.

Final Thoughts

Show up early for your deposition so that you have some time to talk to your attorney beforehand for any last minute advice. Dress appropriately for the deposition. Take this opportunity to rehearse as though you were appearing in court.

This is just an overview. If you get called to provide your deposition, we will provide you with a much more detailed letter to give you additional instructions and information.

Nov

2023

Understanding the new Missouri 50/50 Custody Law

Understanding the new Missouri 50/50 Custody Law

Missouri courts have long favored joint child custody arrangements which enable parents to have frequent and continuing contact with their child allowing parents to be actively involved. Several years ago, legislation was introduced which, if passed, would have established equal parenting time. The legislation did not pass but the idea had been born. St. Louis County, Jackson County and Greene County, to name a few, actually wrote into their local rules that the default custodial arrangement was to be 50/50 custody. It was then up to the parent objecting to demonstrate how equal custody was not in the best interests of the child. However, a new custody law in Missouri was passed that establishes the standard of equal parenting time. The new law also modified the factors that the courts must consider when determining custody arrangements. The legislation was signed by Governor Parson on July 6, 2023, and went into effect August 28, 2023.

So, what is the New Custody Law in Missouri?

Previously Courts determined child custody cases by evaluating several statutory factors, including the best interests of the child, but there was no established baseline that the Courts had to utilize. The new law provides that baseline and sets forth a rebuttable presumption that an award of equal, or nearly equal, parenting time is in the best interests of the child. Under the legislation, this presumption can be rebutted by a preponderance of the evidence. This is the standard of proof applied in most civil cases and means it is more likely than not that the facts raised as evidence to rebut the presumption are true.

Under the former and new version of the legislation, the Court must take all relevant factors into consideration when deciding whether the new 50/50 custody presumption should be rebutted, including the following factors:

The wishes of the parents — A judge must consider the parents’ wishes regarding the custody arrangement. That information is provided through the parents’ testimony and their individual proposed parenting plans.
The child’s needs for a meaningful relationship with their parents — A judge must evaluate the child’s need for a frequent, continuing, and meaningful relationship with each parent, as well as the ability and willingness of each parent to actively perform their role.
The child’s relationship with siblings and others — A judge must evaluate the relationship that the child has with their siblings and any other person who could impact their best interests.
Which parent is more likely to encourage a meaningful relationship with the other — A judge must evaluate which parent will allow frequent, continuing, and meaningful contact between the child and the other parent.
The child’s adjustment to their home, school, and community — While the child’s adjustment to their environment is crucial in determining whether equal parenting time is appropriate, the new law specifically states that the fact a child attends home school should not be the sole factor in determining custody.
The mental and physical health of all parties involved — A judge must evaluate the mental and physical health of both the parents and the child, including any history of abuse either by the parent towards the other parent or by a parent to the child.
Either parent’s intention to relocate — A judge must consider the intention of either parent to relocate the child’s principal residence especially if the parent’s expresses an intention to move sooner rather than later.
The child’s unobstructed input — Under the previous law, courts were required to take the child’s wishes into account when determining who should be the child’s custodian. The new law modifies that previous language to include a mandate that the Court must consider the “unobstructed input of a child, free of coercion and manipulation, as to the child’s custodial arrangement.

Many parents believe that 50/50 custody means that they will not have to pay child support, but such an award does not preclude an order for child support. However, when custody is equally shared between parents, any award would not be based on the amount of parenting time but instead would be determined by each parent’s income. Typically, in such cases, the parent who earns less would be the recipient of the child support payments.

Exceptions to the 50/50 Custody Presumption

The presumption that equal parenting time is in the child’s best interests under the new custody law in Missouri does not prevent parents from reaching other custodial arrangements outside of court. Parents are still free to amicably settle parenting time matters and create their own custodial arrangements without involving a judge using an alternative dispute resolution method — such as attorney or party negotiation, mediation, or the collaborative process. If parents believe a custody arrangement that divides parenting time differently is in the best interests of the child, they may draft and submit their custody agreement to the court for approval. The Courts believe that the parents, if they are cooperative, are in the best position to determine what is best for their child as opposed to a Judge who has only heard a few hours of testimony.

While it is public policy to encourage frequent, meaningful, and continuing contact between a child and both parents after a divorce or separation, the law recognizes that this may not always be the case. The 50/50 custody presumption can also be rebutted under the new custody law in Missouri if the court finds that there has been a pattern of domestic violence. In cases where the child’s welfare would be placed at risk, such as with domestic violence, child abuse, drug and alcohol abuse, and severe mental health issues, supervised visitation may be ordered. Other logistical problems can also prevent a 50/50 schedule such as distance between the parties, incompatible employment or other schedules, and interference with school. Any 50/50 schedule in Missouri must be feasible and make sense in the given case.

Significantly, when deciding custody cases, a judge is required to consider any history of abuse. If the court finds that awarding custody to the abusive parent would be in the child’s best interests, it must enter specific findings of fact and conclusions of law. In addition, if domestic abuse occurred, a judge must make specific findings of fact to show that the custody arrangement ordered best protects the child and the family member who is the victim of domestic violence.

Contact an Experienced Child Custody Attorney

Child custody matters can be legally complex and emotionally overwhelming. If you are facing a custody dispute, it’s essential to have knowledgeable counsel by your side who can help to navigate the legal process. Take your time and do your research. Call around to several attorneys and choose the one who you feel comfortable with and not the one who has the best advertisement or website. While the Housholder Law Firm would be honored to represent you in your child custody case, in the end, the case is about you and your child.

Oct

2020

Guardian ad Litems – Who or What Are They?

Guardian Ad Litems – Who or What Are They?

In cases involving children, it is possible that your child may be appointed a Guardian ad Litem “GAL” (an attorney of their own) if there are allegations of abuse and/or neglect. The GAL’s job is to conduct an investigation and be the eyes and ears of the Court. The investigation could include things like conducting records requests; interviewing the parties; interviewing the child, if appropriate; conducting announced and unannounced home visits, if necessary; talking to the school or daycare, if applicable; talking with the child’s counselor or physician, if available; observing visitation exchanges; and, any other steps that the GAL thinks is necessary to determine the facts of the case. What steps the GAL takes depends upon the nature of the case.

The GAL also has the ability to file motions for counseling for any of the parties; drug testing; resumption or cessation of visitation; status conferences, and, anything else the GAL feels is necessary to protect the best interests of the child.

In most cases, it will be your responsibility to make initial contact with the GAL. Many parties complain that after the initial interview, the GAL is never heard from again. However, unless the GAL advises you otherwise, it is also your responsibility to maintain contact. Although the GAL may not be talking with the parties on a regular basis, the GAL is most likely remaining in constant contact with the other professionals in the case (i.e. teachers, counselors, doctors, etc.).

At the end of the investigation the GAL then makes a recommendation regarding custody and visitation which the Court can either accept or refuse. It is common to not know what the recommendation will be even on the day of trial because the GAL is required to maintain objectivity until after hearing all of the evidence which means waiting until the end of the trial. However, if the parties wish to settle, it is not uncommon for the GAL to offer a recommendation and then to act as a mediator in achieving a settlement.

Feb

2017

Custody Cases – What to Expect

Custody Cases – What to ExpectDiscovery: During the initial whirlwind of your divorce, you will hear phrases like “Rule 68”, “interrogatories”, “request for production of documents”, “income and expense” and “assets and debts”. You will be handed page after page of forms to fill out and suddenly your head is swimming. You are already overwhelmed with the fact that your marriage has ended and now you are being bombarded. The best piece of advice I can give to you at this point is to breathe and not to panic.Rule 68 is a local rule that requires a mandatory exchange of paperwork in every divorce such as your income tax returns for the last three years and the most recent 6 paychecks. Rule 68 sets forth which documents must be exchanged and provides a time frame for when everything should be exchanged and/or answered.

The statement of income and expense form seeks information regarding your income, including withholding information, as well as your monthly expenses for yourself and any children that might be living with you. The statement of assets and debts seeks information about your assets such as cars, real property, certificates of deposits and your debts such as credit cards. On the assets portion, there is a place to list out household furnishings and a place for you to note who you believe should receive the items at the end of the divorce. The best way to approach these two forms is to complete one section at a time without worrying about the rest of the document.

Separate from the Rule 68 are other forms of discovery. Interrogatories are a series of questions designed to elicit information specific to your case. The Request for Production of Documents is a series of questions which ask you to provide copies of items such as your bank statements or your mental or medical health records. Finally, Admissions are a series of questions that have either “admit” or “deny”. All three types of discovery need to be answered or objected to within 30 days. This is especially true for Admissions. Failure to answer those particular set of questions within the necessary timeframes could result in the court believing that you have admitted all of the questions which could seriously damage and/or hinder your case.

Parent Education: In cases involving children, you may be required to attend a parent education class. The purpose of the class is to “educate parents as to the possible detrimental effects of court actions on children and how to avoid these negative effects.” Depending upon the county, there may be deadlines to complete the class.

High Conflict: In some counties, in highly contested cases, the parents may be ordered to attend an additional class that deals with high conflict. The end result of these classes is to help parents remember that while they are dealing with their own emotional trauma, they must be open to the fact that children experience their own emotional trauma during family law cases.

Alternative Dispute Resolution: In Greene County the parties are ordered to attend ADR classes whereas in other counties the parties may be ordered to attend mediation.

Trial: Unless your case ends in a settlement, then your case will go to trial. If you do not have counsel the judge may remind you that you will be held to the standard of an attorney and not given any special leeway because you are unrepresented. While you may be given some leeway, do not expect it. Even if you are represented by counsel being prepared for trial is as important for the client as it is for his/her attorney. Your attorney relies on your knowledge of the facts to prepare properly for trial. The days before trial, communication between the attorney and the client is even more important than at any other time.

On the day of trial, your appearance speaks volumes to the judge. You should be well groomed and well dressed. You should also be respectful of the judge and follow the bailiff’s instructions immediately. In smaller counties like Webster County, the bailiff is the judge’s only direct employee and in all courtrooms the bailiff is the judge’s first defense from angry participants.

In most courts, if they have not been handled already, the first course of business are pre-trial motions. These motions include limiting evidence, calling for “the rule” on witnesses (requiring non-party witnesses to sit outside until called for specifically) and an announcement of “ready for trial.” The judge will then probably ask whether a settlement has been reached or whether the parties want time to attempt to settle without trial. Parties can settle some issues and go to trial on the remaining unsettled issues.

Settlement: In my office, settlement will be discussed repeatedly from the first consultation to the day of trial and sometimes even after trial but before a judgment is issued. The parties themselves can talk to each other at any time and come to any agreement they wish, and our office always encourages it. Attorneys have an ethical and legal duty to present any and all settlements offered, even if it is absolutely detestable and the attorney feels completely confident his/her client will refuse it. That being said, clients who can settle are happier on a whole with the results than clients who leave it up to the judge in trial. If no settlement is forthcoming the attorneys will announce ready for trial.

Once trial has begun you will immediately recognize that it is an event bound by hundreds of rules. There are rules of evidence, rules of procedure, rules of decorum and many other miscellaneous rules. These rules often refer back to the original documents in the case, such as whether you asked for maintenance or attorneys fees in your Petition. If you did not ask for these items then opposing counsel will object if you request them at trial and the court will likely sustain the objection.

Other rules include what evidence can be admitted in trial. The most common type of evidence in custody cases is testimony of the parties which is otherwise known as “giving their side of the story.” It is crucial that you are both honest and perceived as being honest. The judge will weigh your credibility against your evidence and if you are not believable then your evidence will lose weight to the judge. This could decide your case. Being honest with your attorney is tantamount to him/her presenting your best case. ALWAYS provide your attorney with all the information requested, and even any other information that may not have been requested, in order for the attorney to be prepared if that information is presented at trial by the opposing party.

After trial is over the judge may make an immediate ruling and ask attorneys to prepare documents for his signature or take the case under advisement and ask the attorneys to prepare evidentiary arguments for his review. There are numerous post-trial motions that can extend a case but suffice it to say that most cases end at trial and the judge is prepared to enter judgment fairly quickly. The best statement I can make about trial is “whoever is best prepared usually wins.” An attorney needs the client’s full assistance to be prepared. Make yourself available, open up to your attorney, and give him/her everything he/she needs to present your case in the best light possible. And remember, throughout this whole process…breathe.

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