Family Law Trial & Appeal Process

In a family law case, a trial is a formal examination of the facts and evidence related to a particular family law legal issue (i.e. divorce, legal separation, child custody, etc.). The evidence offered by all parties to the legal dispute is considered by a family law judge. At the end of the trial, the family law judge will usually make court orders that help restrict, mandate, or otherwise resolve the respective parties’ conduct or remedies.

Example: If mom and dad cannot resolve their respective requests for child visitation (parenting time), a family law judge may conduct a trial on that issue. After the trial, a family law judge may render a legal decision, which is enforced by the court’s order(s), as to the child’s parents’ respective rights to child visitation (i.e. mom and dad have 50/50 child time share, 75/25 child time share, alternating weekends for child visitation, mid-week child visitation, etc.).

Note: A family law trial involves legal issues related to the family (i.e. juvenile dependency court, guardianship court, divorce court, domestic violence restraining order court, etc.). Other courts that are not related to family law include: criminal court, civil court (lawsuits), immigration court, bankruptcy court, tax court, and more). Also, for purposes of this article, probate court, which handles cases related to guardianship, conservatorship, and sometimes, adoption, is included as a “family law court.”

 

Also, a family law trial may be conducted on any disputed legal matter, such as a dispute as to child custody, child support, alimony (spousal support), child visitation, division of community property, date of legal separation, domestic violence restraining orders, and more.

Family v. Criminal Court

There are major differences, in terms of legal procedure(s) and legal ramification(s), between family law court and other courts. The following list discusses some of the differences between family law court and criminal court; however, keep in mind that a person facing legal challenges in a family law court may also be facing legal challenges in other courts based on the same legal issues presented in family law court.

For example, a child’s mom, who is facing accusations of child neglect, might have court hearings in family law court (child custody issues), criminal court (PC 273a(a) charges)), juvenile dependency court (petition for removal of child  from mom), administrative court (Child Abuse Central Index [CACI] Hearings), civil court (lawsuit for damages related to child’s injury, if any), immigration court (deportation proceedings based on child neglect accusations), and more.

Procedural Differences

Multiple Parties: In family law court, it is not unusual for a case to involve more, or less, than two parties. In criminal court, there is almost always only two parties (the State of California and the Defendant).

For example, in a juvenile dependency court case, there could many parties disputing the legal issue of who should have physical custody of a child (i.e. mother, father, the state of California (ward of the state), grandparent, adoptive parent, etc.).

 

Also, in a family law case, there might be only one party to a legal dispute in some cases (i.e. stepparent adoption case where legal mother is deceased, legal father is unknown, and stepparent is the child’s only parental relationship remaining after legal mother’s death).

Note: In criminal court, it is possible for more than two parties to present evidence on the same legal issue, but all parties are almost always sided with either the plaintiff (state of California), or the criminal defendant. There is an exception where the state of California is attempting to suspend a criminal defendant’s professional license based on criminal allegations (i.e. Attorney General attempting to suspend a criminal defendant’s professional license through the criminal court until a hearing can be had on the issue in administrative court).

Mediation

In family law court, the parties are encouraged, and obligated in most circumstances, to attend mediation. There is no counterpart in a criminal case; however, the district attorney and the criminal defendant will usually attend settlement conferences in an attempt to settle a criminal case by plea bargain, if legally allowed and possible.

Family law mediation is an attempt by a family law court mediator to resolves the parties’ respective legal issues, or at least narrow the issues for trial. In fact, a family law mediator will usually prepare a “recommendation” for the court; the recommendation is presented to the family law court judge in an effort to assist the judge as to the orders that should be made in a particular case, if any.

 

Private mediation is allowed by the family law court, so long as the legal issue(s) are related to divorce and/or division of community property only. Otherwise, the family law court will order the parties to attend the court’s mediation service (for child custody and child visitation).

Note: Child support amounts may be negotiated in mediation; however, child support amounts that are agreed upon by the parties during mediation is not usually made a part of the mediator’s recommendation. This is because the family law court must see to it that any amount of child support that is agreed upon between the child’s parents is sufficient to meet the best interest of, and the needs of, the child. For this reason, the family law judge, who is presented with child support issues by one, or both, parents, will usually order an amount of child support, if any, which is reflected in the court’s child support calculator (calculation based on parents’ respective income, time with child, and child’s special needs, if any).

730 Evaluations: A 730 evaluation is an expert’s opinion on a legal matter, which is offered to the court in order to assist the court in rendering a proper court order as it relates to a particular legal issue. The expert who renders his or her expert opinion is one who is appointed by the court. A 730 evaluation may apply to criminal cases as well; however, in practice, a criminal court judge will rarely use a 730 evaluator on a legal issue. On the other hand, family law court judges appoint experts on a regular basis. The 730 evaluator in a family law case is usually called upon to render an opinion on matters related to spousal support (party’s ability to earn an income),

community property business value, and more.

Multiple Trials (Bifurcated Issues): A family law trial will usually include all issues disputed by the parties. This is similar to a criminal case; however, it is not uncommon for family law litigants to split the legal issues into multiple trials (bifurcated legal issues). This usually occurs where there is a dispute as to the date of legal separation of married persons (an important issue as it relates to spousal support and paternity issues).

For example, in a divorce case, the parties might have multiple trials based on different legal issues, and all of those trials could be argued at one trial, or they could be argued at different times, depending on the needs of the parties (i.e. a trial on request for domestic violence restraining order, followed by a trial on the date of legal separation, followed by a trial on division of community property, etc.).

Burden of Proof: The burden of proof relates to two legal concepts: 1) which party to a legal matter has the burden of proving his or her argument, and 2) to what degree must that party prove his or her case.

In a family law case, the burden of proof, if any, is placed on the party making a request for court orders, and, for the most part, the person making the request for family law court orders must show that his or her argument has been proved more likely than not (preponderance of evidence standard).

In a criminal case, the burden is almost always on the prosecutor (except in some cases where the burden has shifted to the criminal defendant who makes an “affirmative defense), and the burden on the prosecutor in a criminal case is to prove his or her case beyond a reasonable doubt (to a high degree of certainty where the trier of fact has an “abiding conviction that the charge is true” and where any remaining doubt as to the criminal defendant’s conduct is unreasonable to the trier of fact).

Note: When child custody, child visitation, and child support issues are heard in family law court, the family law judge will make orders that are “in the best interest of the child.” Therefore, the burden of proof is on all parties when it comes to showing what court orders, if any, would be in the best interest of the child. With other issues, such as community property division, spousal support awards, wage garnishment orders, domestic violence restraining orders (DVRO), paternity suits, etc., the burden of proof is on the person making the request for orders (RFO).

Also, the burden of proof is escalated to a “clear and convincing evidence” standard in a limited number of family law legal matters (i.e. termination of parental rights cases, inheritance dispute cases, allegations of fraud in community property transfers, etc.).

No Right to Lawyers: In a family law case, most of the time the litigants must provide for his or her own lawyer. This is true even if the litigants to a family law case cannot afford a lawyer. In a criminal case, a lawyer is provided to the defendant if he or she cannot afford to hire his or her own lawyer (public defender lawyer(s) provided to indigent criminal defendants).

 

Exceptions: A party to a family law case is entitled to a lawyer, even if the party cannot otherwise afford a private lawyer in some types of family law cases. These types of cases include:

Juvenile Dependency Cases: A parent or legal guardian has a right to a lawyer, even if the parent or legal guardian cannot afford a lawyer, where a parent or legal guardian is accused of child abuse, child endangerment, or child neglect;

Stepparent Adoption Cases: A legal parent or legal guardian, who objects to a stepparent adoption of his or her child, may be entitled to a lawyer even if the person objection cannot afford a lawyer of his or her own;

Minor’s Counsel: A child may be provided a lawyer where the court believes a lawyer should be appointed to the child in order for the child’s legal interest to best be protected, and more.

Note: The fact that lawyers are not appointed to pro se or pro per litigants (unrepresented by an attorney) in most family law legal matters means that it is possible for only one side to have a lawyer during the legal process. The apparent unfairness of this outcome is sometimes overcome by having the party, who can afford a lawyer, pay for a lawyer to represent his or her opponent in a legal dispute (payment of attorneys’ fees).

Discovery Issues: “Discovery” is a fancy legal word that essentially means evidence and information, which is required by law to be provided to opposing parties in legal matters, and which is designed ensure legal fairness and sufficient opportunity to prepare.

In family law, discover is an informal process. This means that the parties to a family law legal matter are obligated to act in good faith with respect to following court orders and providing for relevant evidence to opposing parties. If the good faith process does not work the parties may usually follow up with “motions to compel” discovery, request for attorneys’ fees, wage garnishments, contempt of court, and more.

 

In criminal court, most discovery is compelled from the beginning. This means that the district attorney must provide exculpatory and inculpatory evidence to the criminal defendant’s attorney, even if the criminal defendant’s attorney did not request such discovery.

Note: As stated, sometimes, neither party to a family law case will have an attorney that represents him or her. In these cases, the pro per litigants are usually unfamiliar with the discover requirements and processes. Because of this, legal matters can take much longer to resolve than those matters would otherwise take where attorney(s) represent the litigant(s).

Speedy Trial Rights: A “speedy trial” means that the litigant has a right to be heard by a judge within a certain amount of time. In family law, there is no right to a speedy trial for most types of cases (i.e. spousal support, paternity suits, division of community property trials, etc.).

In criminal cases, there are speedy trial rights that apply to all misdemeanor and felony cases (30 days to trial from arraignment of a defendant who is custody on a misdemeanor charge; 45 days to trial from arraignment of defendant who is not in custody on a misdemeanor charge; 60 days to trial from arraignment on the information in a felony case, etc.).

Exceptions: There are speedy trial rights that apply to some types of family law cases. These include, but are not limited to: speedy trial rights to a hearing for a defendant in a domestic violence restraining orders (DVRO) case, speedy trial rights for a legal parent(s) or legal guardian(s) in juvenile dependency hearings (Child Protective Service (CPS) cases), and more.

Continuance: Both family law courts and criminal courts allow for a party to request a continuance as to a legal matter (with some exceptions). This is true even where the party who is not requesting the continuance objects to the continuance and the date set for the proposed continuance of a legal matter is beyond the date that complies with a party’s speedy trial rights.

For example, in a request for domestic violence restraining order case, the defendant (Respondent), has a right to be heard within 21 days of the Petitioner’s request for DVRO. However, if the Respondent request a continuance on the issue, then the court is likely to grant the Respondent’s request, so long as the Petitioner is not endangered by the Respondent’s request for continuance. This is especially true where the Respondent’s request is need in order secure a lawyer to represent him or her at the DVRO hearing(s).

No Incarceration (Usually): The conclusion of a family law trial does not usually result in the litigant(s) spending time in jail. The exception is where a litigant purposefully disobeys a court order or otherwise disrupts a legal proceeding (contempt of court). However, even at the conclusion of contempt of court trials, the defendant, if unsuccessful at trial, may usually “purge” his or her contempt (avoid jail by complying with the court’s order).

Also, the defendant in a contempt of court case that is related to a family law court order usually ‘holds the keys to his or her own jail’ (civil contempt). This means that the defendant may be released from jail when he or she complies with the court’s order. Finally, contempt of court criminal charges that are proved in family law court (criminal contempt) rarely lead to more than a few days in jail (except in unusual circumstance). On the other hand, criminal contempt convictions in criminal court will usually lead to severe consequences, including actual jail time. This is especially true where the contempt of court criminal charges are related to a defendant’s violation of a domestic violence restraining order (DRVO) that was issued in family law court.

Note: The penalties that are issued in family law court may be the same as those penalties that are issued from a criminal court. Nevertheless, there is no Double Jeopardy (Twice in Jeopardy) violation in these circumstances.

For example, in a domestic violence restraining order case, the defendant/Respondent may be issued Criminal Protective Orders from criminal court, and DVRO from family law court, and those multiple restraining orders are not considered Double Jeopardy issues. This is also true for restitution that is ordered in both criminal court and family law court where both restitution orders arise out of the defendant’s same conduct on the same occasion.

Appeals: The process for appealing a family law court’s decision (and court order) is different than it is for appealing a criminal law court’s decision (and court order(s)). The processes and differences on how to appeal a family law judge’s decision and court order is complex and should only be handled by experienced family law lawyers.

To learn more about family law trials, and the differences between family law trial and criminal law trial (or other court trials), contact our divorce and family law attorneys today. Our family law lawyers have vast experienced in all family law related legal matters, including divorce (dissolution of marriage), fathers’ rights, grandparents' rights, and more. Call today!

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