Family Law Attorneys & You

Questions

1. How long have you been practicing in this court district or county?
   NOTE: We recommend that no one be considered who has not been practice at least 3 years, 5 years or more is better. But, a new attorney without a large case load has more time to devote to a case and is less expensive.

2. From which Law School did you graduate?
   NOTE: Some Law Schools are better then others, but this information should also be listed on the state bar website for the state that the attorney is licensed to practice in.

3. Are you Board Certified in Family Law?
   NOTE: It requires a state test to be board certified not all attorneys have the ego to be board certified. When they are board certified they charge more. Board Certified Family Law attorneys have been in practice a minimum of 3 years, but most do not become certified until after 6-12 years. To become certified, one must have had cases, in various categories, plus appellate cases, take a written and oral exam, and be re-certified EVERY YEAR. The US Supreme Court Chief Justice recently said of US attorneys that "...three-fourths are incompetent, dishonest, or both ." The odds of getting a qualified attorney go up when selection is made from the Board Certified Family Law list. But there are no guarantees and they tend to charge more.

4. Are you a member of the American Academy of Matrimonial Lawyers?

5. Are you active in local Bar Continuing Education Programs?
   NOTE: Most State Bar Associations do require a specific number of CLE's every year. It is generally a good sign if your attorney as been asked to teach continuing education programs for other attorneys.

6. If an Attorney Ad Litem is to be appointed, do you know the good ones?

7. Do you practice in other counties, states, countries, besides this one?
   NOTE: This becomes an issue when the custodial parent tries moving the child outside the local jurisdiction and re-files the case.

8. What percentage of your practice is in Family Law, specifically in divorce and custody cases?
   NOTE: Qualified attorneys in the Family Law field should have at least 50% of their case load in this area. If less than this, they are probably not sharp enough to represent Fathers.

9. How much "trial" experience do you have in family law/custody cases in this county?
   NOTE: Do they know how to try a case? Some big name attorneys are CRUMMY trial lawyers, and may or may not, be behind-the-scenes negotiators. ALL OF THEM MUST know how to take a case to trial. Does this one?

10. How do you feel about taking cases to a jury (Texas)? What percentage of your cases have gone to a trial by jury?

11. Have you handled any Child Support Cases where the order was set outside the state guideline, creating either a higher or lower payment?
    NOTE: Child Support guidelines are a REBUTTABLE PRESUMPTION, meaning that the payment does not have to follow the specific guideline amounts.

12. Are you familiar with Parental Alienation Syndrome (PAS)? How many cases have you handled with PAS as a factor, and what was the outcome?

    NOTE: This question would only apply if PAS is a factor in your case, but it's a good question to ask to see if the attorney is even aware of PAS. Refer them to Dr. Gardner's book on PAS.

13. Are you familiar with the judges in this county, in particular Judge XXXXXX?
    NOTE: The last part of this question would only apply if you know in advance who your judge will be, or you're going back before the same judge in a modification. Depending on local court practices, you may or may not be able to find out who the judge will be.

14. If so, what are his/her "preferences" when dealing with a custody case? In other words:

    1. Is he/she open to taking custody from a mother who is the current custodial parent and giving custody to a father who is the current non-custodial parent? The only time a judge would take a child away from a custodial parent and give them to a non-custodial parent is if there is something wrong with the custodial parent. This is a case by case basis.

    2. Is he/she open to awarding Joint Custody in the true sense of the word? Most states require an agreement on joint custody otherwise it is sole custody to one of the parents with parenting time to the other.

    3. Has the judge ever ruled on a Bird Nest Custody case?

    4. Does he/she usually prefer Parenting/Custody Evaluations? This is a financial question a custody evaluator has to be paid for and who has the funds to pay for such a study once that has been established the attorneys can stipulate to a study or fill a motion for the court to appoint someone to do the study.

15. How many cases of my type have you had?
    NOTE: If the answer is NONE, you may not want to be the first, but a new attorney with a seasoned paralegal can still can be a good choice. This happens when an older attorney passes away and the paralegal chooses a new attorney to work with, and guide.

16. In how many of these have you represented fathers?
    NOTE: An attorney will not be able to give you references in this matter due to confidentiality laws.

17. How many father's cases of this type have you WON?
    NOTE: This is an important question, but again, reference cases fall under confidentiality laws.

18. Should I decide to hire you, would you be willing to sign a statement stating that as my lawyer, you will not take any action without my express permission, unless circumstances are so urgent, that there is no reasonable opportunity to reach me for consultation, and that under no circumstances will you bind me to any substantive agreement?

19. Should I decide to hire you, I would request the following:
    The ability to communicate with you via e-mail.
    The opportunity to perform menial tasks myself in order to keep my costs at a minimum.

20. What is your hourly rate? Do you have a Paralegal at a lower rate?

21. How many hours do you estimate this case to take?
    NOTE: Most custody cases require from 80 to 120 billable attorney hours, NOT counting paralegals or expert witnesses, or Ad Litems.

22. Do you require a retainer? How much? Is it refundable?
    NOTE: Avoid high retainers. Retainers in excess of 1/3 of the estimated total fee, denies you the opportunity to change lawyers later. If an attorney charges you a non-refundable retainer fee, you will not get any of your money back if you fire him. If the attorney charges you a refundable retainer, you will only get the unused portion of the retainer fee back should you fire the attorney.

23. Do you have a written contract, and can it be modified?
    NOTE: Most attorneys have written contracts that are designed to protect their FEES and provide a means for them to collect unpaid fees from you. Modification of the contract is one way for you to set forth, on paper, what is expected of the attorney, and provides a remedy for you to assure compliance on his/her part.

24. Do you carry Malpractice insurance?
    NOTE: Good attorneys usually carry insurance, that is, if they value their practice. If they don't value their practice, then neither should you.

25. Are there any Bar grievances against you within the last 3 years?
    NOTE:You should not always disqualify an attorney because he has a bar grievance filed against him. It is a very common ploy in litigation today to file a grievance against the opposing attorney hoping that he or she will withdraw from the case.

26. Do you provide MONTHLY, ITEMIZED STATEMENTS?
    NOTE: A common complaint is that retainers are spent, and large sums are required JUST BEFORE the final hearing. The attorney, when asked about the retainer, says, "It got spent", or send a statement "$5000 for services rendered." Don't hire an attorney who does not send out billing statements at least once a month.

27. Do you have a list of recommended:
    Private Detectives
    Mediators
    Mental Health Professionals
    Accountants
    Others
    

    NOTE: If the attorney hires the specialist, then any information obtained using them becomes PRIVILEGED and cannot be obtained through discovery. If you, the litigant, hire this professional, then the other side can obtain any information you developed, through the use of Discovery or Deposition. The attorney should have a good working knowledge of how the above professionals work and should have regular contacts within the above fields. If the attorney is not knowledgeable about experts in the above areas, he does not have the necessary contacts to help you win your case.

28. Have you ever been divorced? And if so, did you get custody?
    NOTE: If this attorney is SO GREAT, would you trust him/her if they didn't get custody? And if they didn't, why not?

29. Are you currently involved in a divorce yourself?
    NOTE: You know the turmoil that you are going through, can you imagine this attorney doing "justice" to you and your case if he is also going through this same PERSONAL agony? Think about it!

30. What percentage of your cases is settled outside of court?
    NOTE: This can either indicate a good negotiator or a roll over and play dead artist.

31. What is your feeling on these subjects:
    Mediation
    Father as Custodial Parent
    Joint Physical Custody
    Bird Nest Custody (see Related Link)
    Child Support
    Property Division
    Community Property
    Grandparents Rights (though a state law may exist, including wording on this prevents future problems)
    Children testifying in court (most judges do not allow this)

32. How many Family Law cases did you have last year?
    NOTE: Most Family Law attorneys have 4-7 active child custody cases each month. Remember, this would be 48-84 cases each year. Most have five. If they have more then seven, guess how little time they will spend with you on your case???

33. What strategy do you recommend?

34. What is your estimate of my chances of winning?
    NOTE: If the attorney represents any kind of guarantee, RUN, don't walk, away from this shyster.

35. How can I get in touch with you after normal business hours and weekends?
    NOTE: Most attorneys do not have a way for clients in divorce case to reach them after hours or on weekends. This is because a clients tend to think that it is an emergency because the other parent cut the child's hair, pierced their ears, didn't show up at little league, was five minutes late picking up or returning a child, etc. An emergency is blood guts or broken bones, not the trivial thing that happen during a divorce action. A lot of fathers call their attorney every day, then wonder why they run out of retainer very quickly. You need to write down your questions, than call when you have several, rather than every day. AND, NEVER AFTER HOURS UNLESS IT'S A TRUE EMERGENCY, AND NOT JUST BECAUSE YOU'RE UPSET WITH SOMETHING DONE BY THE OTHER PARENT.

Specifics

• BOOKS
  You should buy a copy of "Black's Law Dictionary" and your local court rules. You
  should be able to get a copy of your local court rules from the clerk of court. You also will need access to your state's: "Rules of the Court"; "Family Codes"; "Criminal Penal Code"; "Family Law Practice Manual"; "Dorsaneo Litigation Guide"; and the laws of torts. All the above books can be found at a county law library, a university law library, or your state's Bar Association.

• TIME
  The average amount of time required to read the above listed books and get an idea of what is going on and the procedures required to write your own "Motion" or "Response" is about 200 man hours. You must literally study these books and ask questions of others who've done Pro Se, attorneys, and judges. Don't be afraid to ask questions. If you decide to represent yourself, plan on spending a great deal of your free time at the law library and on your word processor.

• A WINNING ATTITUDE
  If you approach the legal system with a negative attitude, you will lose. You must, at all times, have a positive, winning attitude. There is no place in town for you to buy a "winning attitude." You must develop and maintain your winning, positive attitude.
• COURTROOM PRESENCE
  This is a lot like a doctor's bedside manner. You must learn how to conduct yourself in a Court of Law. You must learn how to dress yourself in appropriate clothing when appearing before the Court. Learn how to smile. Learn the procedures. Learn the court clerk's name, the bailiff's name, the court reporter's name, and most importantly, the Judge's name. Establish a friendly rapport with these people. You want to establish, in their minds, that you are a nice person, a responsible person, and a caring person.

Family Code Terms

• ADVERSARY PROCEEDING
  

  One having opposing parties; contested, as distinguished from an ex parte hearing or proceeding. One in which the party seeking relief has given legal notice to the other party, and afforded the latter an opportunity to contest it.

• ALIMONY
  

  Allowances which husband, or wife, by court order pays the other spouse for maintenance while they are separated, pending a suit for divorce (pendent lite).

• CHILD ABUSE
  

  Mental or emotional injury; physical injury; sexual contact.

• CHILD SUPPORT
  

  Monies paid by a Non-Custodial Parent, or Joint Custody Parent not having primary residency, to cover the cost of maintaining and supporting the child(ren). No accounting of how the money is spent is required of the obligee.

• COMMUNITY PROPERTY
  

  Property owned jointly by the wife and husband in undivided condition; includes all property obtained after marriage, including pension plans; but, does not include gifts or inheritance that either may have received during the marriage.

• CUSTODIAL PARENT
  

  The person who has legal custody and all parental rights.

• CUSTODY
  

  Refers to the person(s) who has legal possession of the child(ren). Custody is always granted by the Court under temporary orders, final decree of divorce, or modification.

• EX PARTE
  

  A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one part only, and without notice to, or contested by, any person adversely affected by the proceeding or order.

• JOINT MANAGING CONSERVATOR
  

  (Texas) see Joint Physical Custody

• JOINT PHYSICAL CUSTODY
  

  When both parents share in the parental rights. Legal domicile; access to, and possession of, the child(ren); and child support must still be decided.

• MANAGING CONSERVATOR
  

  (Texas) see Custodial Parent

• NON-CUSTODIAL PARENT
  

  The person that does not have legal custody of the child(ren); few, if any, parental rights concerning the child(ren); and usually required to pay child support.

• OBLIGEE
  

  The person entitled to receive child support payments.

• OBLIGOR
  

  The person required to make child support payments.

• POSSESSORY CONSERVATOR
  

  (Texas) see Non-Custodial Parent

• PRO SE
  

  Propria Persona, appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in Court.

• SPLIT CONSERVATOR
  

  (Texas) see Split Custody

• SPLIT CUSTODY
  

  Occurs when the Court appoints both parents custodians and gives one, or more, child to each parent.

• UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA)
  

  Purpose of this Act is to avoid jurisdictional competition and conflict with courts of other states in matters of child custody.

• UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT (URESA)
  

  Designed to find, and seek restitution from, an obligor who does not pay child support. It acts across state boundaries.

• VISITATION
  

  The specific time(s) during which the non-custodial parent, or joint custodial parent, may visit the child(ren).

• WRIT OF HABEAS CORPUS
  

  The primary function of the Writ is to release an accused from unlawful imprisonment. The office of the Writ is not to determine prisoner's guilt or innocence, and the only issue which it presents is whether the prisoner is restrained of his liberty by due process.

• WRIT OF MANDAMUS
  

  This is a Writ which issues from a court of superior jurisdiction to an inferior court, commanding the performance of a particular act therein specified regarding the child(ren).

Continuance Request

• 1

  HEADER AND DATE
  "Request for Continuance" should appear at the top of your letter. Then add a blank line and add the date in mm/dd/yyyy format.

• 2

  TO & FROM
  Write this information in standard business letter format (see image). Separate each section of the addresses with a new line. "To: Clerk of Courts, (Name of Court here), court address line 1, court address line 2. Separate To & From addresses with a blank line. From: Your name, followed by identifier (Plaintiff or Defendant), your address line 1, your address line 2.

• 3

  DOCKET NUMBER
  The docket number appears on the subpoena you have been issued. Insert a blank line after the addresses. "Docket # (copy the number exactly as it appears on your subpoena).

• 4

  BODY
  Insert a blank line after the Docket Number. Here you tell the court what you are requesting and identify yourself. Next, provide the date and time that the court has issued for your appearance. Now provide the reason for your request. Example: "I am a student at Big City College and I have final exams scheduled for that time." Tell the court when you want your hearing postponed to. Example: "I am requesting a continuance until after January 13th, when my exams will be complete."

• 5

  CLOSING
  Separate closing from body of letter with a blank line. Write "Sincerely,". Insert 3 blank lines (space for your signature). Write your name as it appears on the subpoena. Insert 2 blank lines. Now you will indicate that you are sending a copy of your request to the other party in the lawsuit. Write "cc: (the name of the other party's attorney, if applicable), (the name of the other party), Plaintiff (or Defendant).

• 6

  SIGN & SEND
  Sign the document in the blank space you included for your signature. Mail or deliver one copy to the address of the Clerk of Court. Mail or deliver a second copy to the other party (or their representative). NOTE: when mailing a copy to the other part, you may wish to request delivery confirmation. Keep one copy for your own records.