The February 2016 Shimkus case out of Orange County
holds that family court judges don’t have to consider declarations.
Then how do I prepare for my hearing?
What is the judge going to consider? How do I get “evidence” into Court?
These are very real concerns for every litigant that is stepping foot into Court in Orange County. We can help. This guide will teach you how to obtain the first orders in your family law divorce and custody case.
Preparing for an Orange County Family Law Hearing
You have filed the Petition for Dissolution and a Request for Order for temporary custody and support orders. You have gone to custody and visitation mediation, and you and the other party can’t even agree on the time of day. This means the judge will have to decide the issues in your Request for Order. It’s time to get ready for the upcoming hearing. What should you prepare for?
Prepping for Court
Your Wilkinson & Finkbeiner family law attorney will know the main points to hit on at the hearing so that the court is focused on the issues important to your case. At Wilkinson & Finkbeiner, we will prepare your case for hearing by meeting with you to discuss the important points to raise at court and gathering the documentation necessary to substantiate your legal position. We will exhaust settlement efforts before litigating the matter. If appearing before a judge appears likely, we will work with you to make a positive impression on the Court. Depending on the judicial officer responsible for the case, we can alert you to specific “do’s and don’ts” so that you will stay on his or her good side.
What to wear for Court
The general rule of thumb is dress in “business casual” clothes when appearing in court for your divorce, custody of a child or other family law matter. If you are unsure about whether your clothes are dressy enough, always err on the side of dressing more formally than less formally.
Do not wear a baseball cap or other hat, t-shirt, or shorts. If you have tattoos, cover them up. If you have a nose ring or other facial rings that are not earrings, we suggest taking them out.
An ideal men’s outfit includes slacks, a button-up and long sleeve shirt, and possibly a sport jacket. Dressing professionally shows the judge you are taking the matter seriously and showing the proper respect.
An ideal outfit for a woman might include an appropriate blouse and slacks or skirt. The outfit should not be too “revealing”.
If you are a parent seeking custody, dress like a mom or dad. If you are seeking support, don’t bring an expensive, designer hand bag into court.
Getting to Court
You should be prepared to spend the whole day at court on the date of your scheduled hearing. Make the necessary arrangements with your employer and child care provider. The Court will not allow you to “call in” for your court appearance, except under extraordinary circumstances. Keep in mind that your Request for Order hearing may last anywhere between a few minutes to several hours. Your attorney will advise you about how long your hearing will likely take. In anticipation of a long day, try to get a good night’s sleep before the hearing. Plan on arriving to the courthouse by 8:30am. Please note that traffic can be a major hassle on the freeways near the court. The 22 and 5 Freeways are often jammed in the mornings, so it is important to leave your house early if you plan to take the freeways.
There are two family law courthouses in Orange County. The main courthouse is Lamoreaux Justice Center, located at 341 The City Drive South, Orange, CA. Lamoreaux is home to 15 family court rooms, including two that handle exclusively child support cases involving the Department of Child Support Services and one that hears only domestic violence cases. Once you arrive at the courthouse complex you can park directly across the street from the court in a parking structure. If your family law case is assigned to Judge Mark Millard or Judge Claudia Silbar, you will report to the Central Justice Center, located at 700 Civic Center Drive West, Santa Ana. Closest parking is in a brick structure one block to the east of the court. For both courthouses, prepare for a five-minute walk from the parking lot plus a line at the door. You will be passing though security. For that reason, you can expect to encounter a 10 to 15-minute line to enter the courthouse if you arrive between 8:15-8:45 am. Parking is roughly $16 per day, and both structures have credit card terminals if you don’t have cash on hand.
You Made It Inside the Courthouse, Now What?
When you arrive to the courtroom, a swarm of other litigants and their attorneys will be hanging around outside each department, as each judge will have several other matters on calendar competing for court time. For the most part, judicial officers take the bench around 9:00 am, although we ask our clients to be present by 8:30 because often, there will be time for last minute settlement negotiations before your matter is called. If you end up settling, then one of the attorneys will write up a Stipulation and Order that will be signed by both parties and their attorneys. The Court Clerk will usually stamp the Stipulation without further inquiry, and if the orders are well-drafted, they are just as enforceable as if the judge ruled from the bench. At this point your court day is over and you can resume your normal life!
The other party doesn’t want to proceed, and I do. What happens then?
When your judicial officer arrives on the bench, he or she will call all matters on calendar for a brief status update of each case. The judge will want to know what the issues are, whether everyone is ready to proceed and the time estimate for the hearing. If one side requests a continuance, or a postponement of the hearing, and the other side disagrees with the request, the Court will generally hear the request for continuance at the time of calendar call. Common reasons to request a continuance are a newly-hired attorney has just substituted in the case, a party or witness is unexpectedly unavailable or the other party has not produced documentation necessary for the matter to proceed. If the Court grants the continuance, then the matter will be rescheduled for another date. In Orange County, depending on the time estimate for your hearing, the next hearing date may be 2-3 months away because all of the time slots are filled up until then. Wilkinson & Finkbeiner makes it a matter of practice to determine whether a continuance will be requested before the day of the hearing and to advise our clients on the merits of the continuance request. If the continuance is a delaying tactic, we will oppose the continuance and be prepared to proceed.
If the Court denies the request for continuance, the judicial officer will likely order the parties to meet and confer again before proceeding later in the morning.
Request for Order hearings are like small trials
If you cannot settle your case, it will be time to execute the legal strategy employed by your experienced Wilkinson & Finkbeiner family law attorneys. A word of caution – don’t expect your Orange County family law judge to know anything about you or your case when you walk into the courtroom. Orange County family law jurists have a case inventory of somewhere between 1,000-1,500 total cases and 10-15 matters on calendar every day. In fact, your judicial officer may be reading about your case for the first time while you are at the hearing.
By the time you go to Court you will have already filed your declaration telling the court what you want to know. However, don’t count on your declaration being admissible at the hearing. In other words, your declaration is not evidence. In an Orange County family law case decided in February 2016, In re Marriage of Shimkus 16 DJDAR 1680 (2-18-16) (DCA 4), the appellate court upheld the trial court’s decision not to admit the parties’ declarations into evidence. Pursuant to Family Code Section 217, absent good cause, a court shall accept competent, live testimony that is relevant within the scope of the hearing. The Court will also receive admissible documentary evidence and listen to argument from the attorneys. Because of these rules, your judicial officer may not even read your declaration. This underscores the importance of having a family law attorney who applies the rules of evidence on an everyday basis.
The Judge has ruled. Am I done?
Once the court has made the orders, one of the attorneys will prepare a proposed order for the other attorney to sign. Assuming the order conforms to the court’s order, the other attorney will sign off. The order will be sent to Family Court for the judge’s signature.
You now have temporary orders! The first phase of your dissolution case is over. The next part of your case will take you to a fork in the road – trial or settlement. Wilkinson & Finkbeiner attorneys are adept at handling both options for finalizing your case.
The Role of Commissioners in Orange County Hearings
In some family law courtrooms throughout California, Commissioners sit as “judges” to hear and decide cases. In order for the Commissioner’s orders to be valid and binding, the parties have to stipulate beforehand to the use of the Commissioner.
In the recently published case of Elena S. v. Kroutik, (2016 WL 2943411), the Court of Appeals reviewed a domestic violence case out of San Diego County involving the question of whether a domestic violence restraining order can be void because the defending party did not stipulate to a commissioner for adjudication of the matter after receiving an unfavorable ruling.
The facts of the case involve Elena S., who had met Vlad online in November of 2014. Although they got engaged in March of 2015 and married in July of 2015, their relationship deteriorated before the marriage. In June of 2015, Vlad sexually assaulted Elena and threatened to disclose her location to her abusive ex-husband. In July of 2015, Elena filed a request for a Domestic Violence Restraining Order which the court granted on a temporary basis. In August of 2015, after a three-hour long hearing, the commissioner granted a five-year permanent domestic violence restraining order. However, in the notice designating the record on appeal, Vlad checked a box stating that he elected to proceed without a record of the oral proceedings in the trial court. As a result, there was no proper record which made it impossible for the court to consider what was said during the domestic violence restraining order hearing.
Vlad appeals claiming that he never stipulated to the commissioner hearing his case. As a result, he argues that the commissioner’s order is void. In California, a commissioner can hear a case instead of a judge as long as both parties stipulate either in writing or orally beforehand. However, a party who claims to not have stipulated as such has the burden to affirmatively show that there was no written or oral stipulation to allow the commissioner to hear the matter. In this case, the main problem is that Vlad elected to proceed without a record of the oral proceedings in the trial court. In order to challenge a judgment or order, Vlad has to burden of showing reversible error by an adequate record. Without a record, Vlad cannot prove that the parties did not stipulate to the commissioner hearing the case. In addition, the court noted that even though Vlad was representing himself, the court did not give him any latitude as to this requirement as he is treated like any other party regardless of having an attorney.
Due to no proper record, the Court of Appeals had to treat it as an appeal “on the judgment roll” and applied the following rules: the error must be affirmatively shown by the record and will be presumed on appeal; the validity of the judgment or order on its face may be determined only by looking to the matters constituting part of the judgment roll; when no error appears on the face of the judgment roll record, there is a presumption in support of the judgment.
When there is no express stipulation, stipulations will be implied if the hearing involves the performance of a judicial function and the party affirmatively participates in the proceeding and does not object to the commissioner who conducts the proceeding until after its completion. This prevents parties from fully participating in a trial and then claim that the court did not have the right to have the hearing just because the party did not receive a favorable result.
Here, the Court of Appeals can only presume that the court acted properly because there was no record or transcript of the domestic violence restraining order hearing due to Vlad’s voluntary election to proceed with the hearing without a record. Vlad fully participated in the hearing and cannot after receiving an unfavorable ruling, decide to object to the commissioner’s involvement. He impliedly consented to allowing the commissioner to determine whether the restraining order should be granted. Since there was no proper record, the Court of Appeals presumed that the trial court acted properly. Therefore, the Court of Appeals found the judgment to be correct and affirmed it.
Request for Order Delay Tactics
For more information about expediting divorce cases and dealing with delay tactics, click here.
Hiring an experienced family law attorney to navigate the turbulent waters of the Orange County family law system is a necessity. Call or email our office for a free, confidential consultation today.