If you browse through any of the countless legal resources available online, you will inevitably come across the recommendation of speaking to an attorney. Whether or not you truly need to retain an attorney depends on the nature of the legal action, and your personal circumstances. Divorces, for example, vary widely in terms of personal and legal conflicts, not to mention a myriad of “grey areas” that are left to a judge's discretion. A judge, however, must base his or her interpretation on current statutes and care precedents, without bias for or against either party.
A judge's discretion is particularly important in custody actions, which can take place throughout a child's life. Post-divorce modifications for additional visitation are especially common, once parents are in a better place financially and/or emotionally. Many of these parents choose to petition the courts on their own, confident in their parental rights and abilities. Winning a court motion, however, requires a thorough understanding of your legal parental rights, as well as your rights within the family courts systems.
A recent case that illustrates the downside of self-representation in a custody motion is KL-v-DL, which was resolved by the Appellate Division on June 10, 2016. The case goes back to 2013, when the wife succeeded in obtaining a final restraining order against her husband for a domestic violence incident. The couple had filed a divorce complaint shortly before the incident, with the husband requesting alternate weekend overnight visits with their daughter. This request was denied after the issuance of the restraining order, although the court did grant him an additional 3 hours of visitation during the week. The husband was ultimately granted overnight visitations in the final judgment of divorce, but not on the nights that he had requested.
The husband filed for reconsideration twice, and was denied both times. He finally appealed, citing the court had made “mistakes of fact not supported by the record”, in particular, “considering objections that were raised by respondent that were not a part of respondent's motion papers and by using them as the basis of the denial of the overnight parenting time…” The appellate court agreed with the husband's objections and referred the motion back to the trial court where, “both sides should be given an opportunity to submit additional legally competent, relevant evidence, concerning the visitation issue.”
Based on the excerpt from the husband's petition, you may have already guessed that it was written by an attorney. The husband had represented himself in the original proceedings, but retained an attorney for the appeals process. We can't know for sure, but having representation to begin with may have saved him considerable time, cost and aggravation. An experienced attorney, for example, would have raised immediate concerns about the wife's lack of “legally competent, relevant evidence” concerning the husband's parenting abilities. Before you file a custody modification request, please find out about your rights and legal options from the attorneys of Villani & DeLuca, P.C.