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CALIFORNIA FAMILY LAW FOR PARALEGALS

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					   CALIFORNIA
 FAMILY LAW FOR
PARALEGALS, 5th Ed.

      Chapter Eight
   The Litigation Process
           A. OVERVIEW OF THE
           LITIGATION PROCESS
   Much of the paralegal’s time will be devoted to assistance at
    virtually every phase of the litigation process, from the initial
    commencement of the proceedings, obtaining relief pending
    trial, obtaining judgment, and finally any post-judgment
    modifications that may be necessary.
   Litigation is merely the act of marshaling the facts in support of
    your position and against those offered by your opponent and
    presenting them in a clear and convincing manner to the trier of
    fact, in this context, the judge.
   While most courts differ as to time parameters and local
    procedures, the basic structure of a lawsuit is for the most part
    the same in all locales.


                                                                         2
          A. OVERVIEW OF THE
          LITIGATION PROCESS
   Some form of initial presentation of a party’s position is
    required to get the ball rolling.
   This is typically called the Complaint in most civil
    matters, the Indictment or information in criminal matters,
    and the Petition in family law cases.
   The Petition is basically a position paper setting forth
    the petitioner’s (the person commencing the litigation)
    position on the various issues to be addressed in the
    case.
   The Petition is then served upon the other party to the
    proceeding, thus giving him notice of what it is the
    petitioner desires by virtue of this action.

                                                              3
          A. OVERVIEW OF THE
          LITIGATION PROCESS
   Because all parties to litigation are allowed an
    opportunity to be heard (that is, a chance to tell their
    side of the story), the next step in the litigation process
    is typically taken by the opposing party by filing his
    own position paper.
   In family law, this document is known as the Response.
   In most other civil matters it is called an Answer because
    its function is to answer the allegations made in
    Complaint.


                                                              4
         A. OVERVIEW OF THE
         LITIGATION PROCESS
   Once the Petition (Complaint) and the Response
    (Answer) have been filed, the matter is ready to
    be scheduled for trial.
   There next ensues a sometimes significant
    waiting period during which time discovery is
    conducted, pretrial orders are requested and
    often made, and general preparations for trial are
    undertaken by all sides to the litigation.

                                                     5
          A. OVERVIEW OF THE
          LITIGATION PROCESS
   Once the matter is called for trial, assuming all parties
    are ready (and sometimes whether they are ready or
    not), the parties are usually required to present
    themselves to a judicial officer who conducts a
    mandatory settlement conference in an attempt to achieve and
    amicable resolution of the issues without the necessity
    of trial.
   On the day of trial, the trial judge may refer the parties
    to mediation in yet another attempt at settlement, and a
    trip to the conciliation court is also required if there are
    issues of child custody or visitation involved.

                                                               6
          A. OVERVIEW OF THE
          LITIGATION PROCESS
   When the trial starts, the issues are presented in an
    orderly manner with the petitioner going first, and the
    respondent responding to the petitioner’s claims, raising
    issues of his or her own as the circumstances may
    require.
   Following the trial, the judicial officer weighs all the
    evidence, makes various findings (factual and legal
    conclusions based upon the evidence presented), and
    renders a decision on all issues in controversy.


                                                            7
          A. OVERVIEW OF THE
          LITIGATION PROCESS
   In the family law context, this decision will typically
    divide all community property and obligations,
    determine custody of the children, determines issues of
    support and all other matters relevant and necessary to
    an orderly termination of the relationship.
   Like most other court orders, the orders made at trial
    are subject to review by the appellate court.
   Many orders made at trial in a family law matter are also
    subject to post-trial modification as the circumstances
    may require.


                                                            8
         B. THE INITIAL CLIENT
              INTERVIEW
   Many attorneys will want to include their paralegal in
    the initial intake interview and so familiarity with this
    process is a must.
   The paralegal’s role in this process may rise to the level
    of collecting much of the information him or herself or
    may simply consist of observing the dialogue between
    the client and the attorney, taking notes of the meeting
    as the context requires, depending upon the particular
    attorney and client involved and the degree of
    experience of the paralegal.

                                                                 9
         B. THE INITIAL CLIENT
              INTERVIEW
   The client information sheet is simply a list of information
    collected from the client in order to create as complete
    a “database” as possible about that client.
   There is no particular form and there are few rules
    regarding its preparation except these two: 1) it must be
    maintained; and 2) it must be thorough.
   Unless it is so required for any particular purpose, the
    listing should be relatively short and succinct, and easily
    browsed to facilitate locating a particular piece of
    information.


                                                               10
        B. THE INITIAL CLIENT
             INTERVIEW
   Whether the client information sheet is done in
    the office with the attorney, in the reception
    area, or at home, the important point is that it
    should be done.
   See Figure 8-1 on pages 318 to 320 for an
    example of a client information sheet.




                                                       11
        C. CHOICE OF ACTIONS
   Obviously, when two people decide to terminate
    their relationship, decisions must be made
    regarding how this will be accomplished: put
    succinctly, what type of action will be filed.
   There are three types of actions available when
    commencing litigation in this area: dissolution,
    legal separation, and nullity.


                                                   12
        C. CHOICE OF ACTIONS
   Family Code section 310 instructs that a
    marriage can only be terminated by death, a
    judgment of dissolution of marriage, or a
    judgment of nullity of marriage.
   A judgment of legal separation, while available,
    will not terminate a marriage.
   Thus, if termination of marriage is the goal, only
    two options are available: dissolution or nullity.

                                                     13
                    1. NULLITY
   An action for nullity is actually somewhat of a rarity due
    to the very specific and unique grounds under which it
    is available.
   An action for nullity presumes (or at least argues) that
    the marriage was not in fact valid, and as such must not
    be given any recognition at all.
   The marriage is declared void, and the parties are
    returned to the status of unmarried persons as if the
    marriage had never taken place.


                                                            14
                    1. NULLITY
   Several other factors might prove attractive in selecting
    an action for nullity over one for dissolution.
   For example, the six-month waiting period before a
    judgment of dissolution becomes final does not apply.
   Neither does the six-month residence requirement.
   Unlike a dissolution of marriage, nullity can be directly
    concerned with fault, especially when it comes to
    assessing attorney’s fees and costs against one of the
    parties.

                                                            15
                        1. NULLITY
   In order to provide some relief for innocent parties to an invalid
    marriage when dealing with the property of that “marriage,” the
    law has created a separate category applicable to such persons.
   They are called putative spouses.
   This is an equitable concept designed to provide an innocent
    spouse (one who in good faith believed the marriage was valid
    and acted accordingly) with a fair realization of the expectations
    formed during the marriage.
   Such spouses will generally be granted certain rights usually
    reserved for parties to a valid marriage regardless of the fact that
    the marriage was in fact not valid.



                                                                       16
                     1. NULLITY
   Another interesting distinction between a nullity action
    and one for dissolution has to do with the parties to the
    litigation.
   While in a dissolution (or legal separation) action, the
    party commencing the proceeding must be one of the
    parties to the marriage, such is not necessarily the case
    in an action for nullity.
   Other interested persons such as parents and other
    relatives can commence a nullity action on behalf of
    one of the parties to the “marriage.”


                                                            17
                  1. NULLITY
   a) Void versus Voidable Marriages
   In the context of an action for nullity, a
    distinction is made between a void marriage and
    one that is merely voidable.
   In the latter case, the marriage is actually valid
    until such time as whatever defect rendering it
    subject to attack in the nullity action is proven,
    at which point the marriage will then be deemed
    void.

                                                     18
                    1. NULLITY
   Some “marriages” however are never valid, and never
    carry with them the benefits of a valid marriage, not
    even for a short time.
   The grounds upon which a nullity action can be
    brought are specific and are provided by statute. They
    are:
   Void: (1) Incestuous marriage: Family Code §2200
   (2) Bigamous; polygamous marriages: Family Code
    §2201.

                                                             19
                  1. NULLITY
   Voidable: (1) Petitioner’s age at the time of the
    marriage: Family Code §2210(a)
   (2) Prior existing marriage: Family Code §2210(b)
   (3) Unsound mind: Family Code §2210(c)
   (4) Fraud: Family Code §2210(d)
   (5) Force: Family Code §2210(e)
   (6) Physical incapacity: Family Code §2210(f)

                                                        20
                     1. NULLITY
   b) Nullity Based on Void Marriages
   Statutorily speaking, there are only two grounds upon
    which a marriage will be declared a nullity as void or of
    never of any force and effect.
   These are incestuous and bigamous and polygamous
    marriages.
   Family Code section 2200 describes as incestuous any
    marriage between “parents and children,” “brothers
    and sisters” (half brothers and sisters also), “uncles and
    nieces,” “aunts and nephews,” and “ancestors and
    descendants of every degree.”


                                                             21
                        1. NULLITY
   Family Code section 2201 describes a bigamous marriage as one
    created when a person, after having married one person
    subsequently marries another person without having terminated
    the first marriage (by dissolution or a decree of nullity).
   An exception to this rule of an automatically void marriage is
    found in Family Code section 2201(a)(2), which provides that the
    result mandated generally by section 2201 will be avoided if the
    former spouse is absent (that is, missing), and has been for at
    least five successive years immediately preceding the subsequent
    marriage, or is generally presumed to be dead at the time of the
    subsequent marriage (without waiting the five years).
   In these cases the marriage is considered valid until its nullity is
    declared.

                                                                      22
                     1. NULLITY
   c) Nullity Based on Voidable Marriages
   Not all defective marriages are void right from the start.
   Several marriages may start out valid on their face and
    later end up being declared null and of no force or
    effect.
   These marriages are said to be voidable.
   It is important to note that these marriages are
    completely valid for all purposes until such time as they
    are declared a nullity.

                                                            23
                   1. NULLITY
   The legal defect must exist at the time of the
    marriage.
   If the marriage is valid at its inception (that is,
    there are no legal defects then in existence), it
    cannot be set aside later and declared a nullity.
   It can only be terminated by dissolution.



                                                          24
                     1. NULLITY
   The basic distinction between these marriages and
    those that are void primarily has to do with the
    availability of the nullity action.
   For all practical purposes, in a void marriage no rights
    or incidents of the marriage can attach to the
    relationship.
   A void marriage is never valid.
   A voidable marriage, on the other hand, is valid on its
    face until someone attempts to have it set aside.
   If no one ever does, then it simply continues until it is
    terminated in some other way.

                                                                25
                     1. NULLITY
   Section 2210(a) provides that a marriage can be
    annulled if the petitioner in the nullity proceeding was
    not old enough to legally consent to the marriage.
   Once the underage party comes of age, however, if he
    continues to cohabitate with his spouse as husband and
    wife, this avenue of nullity will no longer be available.
   Section 2210(b) provides the answer to the
    missing/presumed dead spouse question.
   Under those circumstances, the second marriage is
    voidable.

                                                            26
                     1. NULLITY
   Section 2210(c) makes a marriage voidable if either
    party was of unsound mind at the time of the marriage.
   Section 2210(d) makes a marriage voidable when the
    consent of either party was the product of fraud.
   Section 2210(e) is similar to (d) above, only it speaks to
    consent through the use of force.
   Section 2210(f) renders a marriage voidable if, at the
    time of the marriage, either party was physically
    incapable of entering into the marriage state, and the
    incapacity continues and appears to be incurable.

                                                             27
                    1. NULLITY
   Family Code section 2211 provides the limitation
    period and proper petitioning party in these actions.
   Actions brought under 2210(a) are limited to those
    brought within four years after reaching the age of
    consent.
   If a parent or guardian wishes to bring the action, it
    must be done before the underage married person
    comes of age.
   Once a party turns 18, he has four years to seek to have
    the marriage declared a nullity due to the fact of his
    minority at the time of the marriage.


                                                           28
                    1. NULLITY
   Only the spouse who was underage at the time of the
    marriage (or a party acting on his behalf) may bring the
    action.
   Family Code section 2211 answers the question of just
    who this other person who commences the action on
    behalf of the underage spouse is: that spouse’s parent(s)
    or legal guardian.
   According to Family Code section 2211(a)(2), they
    must bring their action before their child becomes an
    adult.


                                                           29
                     1. NULLITY
   Family Code section 2201 does not declare marriages
    that fall into this area of “presumed dead/missing”
    void.
   In fact, that section specifically recites that such
    marriages are not void.
   The statute makes it clear that when a party enters into
    a subsequent marriage under circumstances where the
    former spouse is missing or presumed dead, the
    subsequent marriage is voidable, not void, upon the timely
    request of either of the “new” spouses as well as the
    previously believed to be dead or missing spouse.
                                                                 30
                     1. NULLITY
   Section 2211(c) limits section 2210(c) actions to the
    injured party (or a relative or conservator of a person of
    unsound mind).
   There is no time limit for bringing this action.
   It can be brought at any time before the death of either
    party.
   For marriages voidable by reason of fraud, the injured
    party must bring the action within four years of first
    discovering the facts constituting the fraud.
   This is also the case when dealing with issues of
    physical incapacity.

                                                            31
                    1. NULLITY
   d) The Putative Spouse
   Family Code section 2251 provides that, in the context
    of a void or voidable marriage, whenever one or both
    of the parties believed in good faith that the marriage
    was valid, the court shall decree such person(s) to have
    the status of putative spouse and as such be eligible to
    receive the benefits of the provisions of Family Code
    sections 2500 et seq. regarding property acquired during
    the “marriage” that would have been community or
    quasi-community property had the marriage not been
    void or voidable.

                                                          32
                   1. NULLITY
   Section 2254 of the Family Code provides that a
    putative spouse is also entitled to the benefits of
    an award of spousal support in the same manner
    as if the marriage had not been void or voidable.
   Section 2255 makes an award of attorney’s fees
    and costs available to a putative spouse, and
    section 2080 gives the court the power to restore
    the wife’s former name to her following entry of
    a judgment of nullity.

                                                     33
    2. DISSOLUTION AND LEGAL
            SEPARATION
   In California the most common method of terminating
    a marital union is through the procedure of dissolution.
   Also available is an action that results in a decree of legal
    separation.
   Procedurally these two actions are virtually identical;
    and, with the exception of the rather major distinction
    of the continuing marital union, the results available in
    a legal separation are exactly the same as those obtained
    through dissolution.


                                                               34
    2. DISSOLUTION AND LEGAL
            SEPARATION
   Issues of child custody and visitation, child and spousal
    support, attorney’s fees and costs, property division,
    restraining orders, and other injunctive relief are all
    equally available whether through dissolution or legal
    separation.
   The same procedure is applied and the same forms are
    used in the prosecution of the action for legal
    separation and dissolution.
   The fundamental differences between the two
    procedures are noted below: see pages 327-328.


                                                            35
    2. DISSOLUTION AND LEGAL
            SEPARATION
   The grounds for obtaining a dissolution and legal
    separation are the same and are found in Family Code
    section 2310: irreconcilable differences and incurable
    insanity.
   Incurable insanity, while available, is virtually never
    used as grounds for a dissolution action.
   To prove incurable insanity requires introduction of
    medical expert opinion testimony attesting to the
    party’s incurable insanity at the time the Petition is filed
    and its continuance through the hearing on the
    dissolution.
                                                               36
    2. DISSOLUTION AND LEGAL
            SEPARATION
   Family Code section states as follows: “Irreconcilable
    differences are those grounds which are determined by
    the court to be substantial reasons for not continuing
    the marriage and which make it appear that the
    marriage should be dissolved.”
   Substantial reasons for not continuing the marriage are
    usually found when one party testifies that the marriage
    is over and not capable of being saved.



                                                           37
     3. SUMMARY DISSOLUTION
   Under certain very limited and very strict
    circumstances, parties to a marriage may be able to avail
    themselves of the statutory procedure known as
    summary dissolution.
   This process is quick and inexpensive and is designed
    to be obtained easily and without participation by
    attorneys.
   This procedure does not require a court hearing or
    appearance and is set out in detail in Family Code
    sections 2400 et seq.
   Summary dissolution is only available if all of the
    following conditions are met: see page 329.

                                                           38
            D. THE SUMMONS
   One of the documents that must be prepared
    and accompany the Petition when taken to the
    clerk’s office for filing is the Summons.
   This document is issued by the court clerk and
    acts as an officially issued document that gives
    notice to the respondent that legal proceedings
    have been instituted against him and advises him
    to retain counsel.

                                                   39
            D. THE SUMMONS
   Following the expiration of 30 days following
    service, if no Response to the Petition has been
    received (or some other acceptable responsive
    document), then the petitioner (or her attorney)
    prepares and sends down to the court clerk a
    document called Request to Enter Default (form
    FL-165) and includes with this delivery the
    original summons (to prove that it was issued)
    and the original Proof of Service (to prove that
    the papers were served).
                                                   40
             D. THE SUMMONS
   “Notice” is extremely important in the context of a
    legal proceeding and is necessary to satisfy the due
    process considerations mandated by the Constitution.
   Properly serving these documents will satisfy the
    constitutional requirements of notice and opportunity
    to be heard, and thus the manner of service is very
    important.
   Improper service can, absent a general appearance
    entered by the respondent, result in a void judgment.


                                                            41
            D. THE SUMMONS
   Once the appropriate documents have been
    served (the Petition and Summons), the person
    who actually served the documents must
    complete a separate document known as a
    “proof of service,” which is maintained by the
    attorney until such time as it needs to be filed
    with the court.
   When reviewing the Family Law Summons, care
    should be taken in examining the back side.

                                                   42
              D. THE SUMMONS
   Family Code sections 213, et. Seq. provide for the
    automatic issuance of temporary restraining orders
    against both the petitioner (effective when the
    summons is issued by the clerk) and against the
    respondent (effective once the respondent has been
    personally served with the summons and petition).
   They are primarily designed to maintain the status quo
    between the parties during that time after filing the
    petition and before a court hearing.
   See Figure 8-2 on pages 332-333.


                                                             43
         E. THE INITIAL FILING
   Once the initial interview has been completed the
    attorney is prepared to “officially” commence the
    proceedings.
   These initial papers are actually preprinted forms, which
    are filled out and modified as needed.
   These forms are, for the most part, designed and
    promulgated by the California Judicial Council.
   Most of the forms available for use in family law
    proceedings are mandatory and must be used.
   See Figure 8-3 on pages 335-336.

                                                           44
          E. THE INITIAL FILING
   1. The Petition and Response Forms
   The Petition and the Response are the rough equivalent to the
    complaint and answer in a non-family law proceeding and can
    generally be described as “position papers.”
   Essentially, the parties set forth the nature of their request (that
    is, dissolution of marriage, legal separation, or nullity), their
    contentions as to basic statistical information (date of marriage
    and date of separation), property rights (both separate and
    community), and their various requests pertinent to issues of
    custody and visitation of children, support (spousal and child),
    and attorney’s fees and costs.



                                                                           45
       E. THE INITIAL FILING
   The Petition (form FL-100) is the form used whenever
    a party seeks to change his marital status whether by
    dissolution, legal separation, or nullity.
   Once this document is properly completed and filed,
    the proceeding has started.
   Both the Petition and Response (form FL-120) are
    substantially identical both in structure and substance.
   See Figure 8-4 on page 338; see Figure 8-5 on page 339;
    see Figure 8-6 on page 340; see Figure 8-7 on page 342;
    and see Figure 8-8 on pages 344-345.

                                                           46
       E. THE INITIAL FILING
   2. Additional Options Available to Respondent
   Although the petitioner is restricted to filing the
    Petition when commencing the proceedings, the
    respondent actually has several choices other than
    merely filing the Response (depending upon the facts
    and circumstances of the particular case).
   Once served, the respondent must decide whether to
    submit to the court’s jurisdiction or challenge the
    court’s exercise of power over him.
   This decision is usually based upon a contention by the
    respondent that the court does not have personal
    jurisdiction over him.

                                                          47
         E. THE INITIAL FILING
   To challenge jurisdiction, the respondent must
    make a special appearance and contest jurisdiction
    by filing a motion to quash the service of summons.
   This will have the effect, if successful, of
    denying the petitioner’s attempt to seek relief
    against the respondent in that state.
   Another motion available to the respondent is
    called a motion to quash the proceeding.

                                                          48
         E. THE INITIAL FILING
   The basis for such a motion is set out in detail in CRC
    5.121 and includes challenges based upon allegations
    that the petitioner lacks the capacity to file a lawsuit,
    that residence requirements have not been met or that
    there is another action already pending between these
    parties on the same issues.
   CRC 3.1326 gives the respondent the opportunity to
    request, by motion, that the venue (location) of the
    proceedings be changed.
   This is called a motion to change of venue.


                                                                49
        E. THE INITIAL FILING
   Finally, CRC 3.1322 makes provision for filing a
    motion to strike (remove) certain items
    contained in the Petition not specifically
    required by FL-100.
   A similar motion can be made by the petitioner
    regarding improper items contained in the
    Response.


                                                   50
        E. THE INITIAL FILING
   3. Filing and Service Requirement
   Once the various papers have been prepared,
    they must be filed with the appropriate office of
    the superior court clerk and then served on the
    responding party.
   The fee for an initial filing is currently about
    $320 for the Petition and roughly $320 for the
    Response.
   Indigent litigants can have this fee waived.

                                                    51
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   It is not uncommon for many family law matters to
    resolve either through default or uncontested
    proceedings.
   From a procedural standpoint, once service of the
    Petition has been effected, the respondent has 30 days
    within which to either file and serve a Response or
    some other appropriate paper.
   If that time passes with no responsive papers having
    been filed, the petitioner can request that the clerk enter
    the respondent’s default in the case.


                                                             52
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   Once the Request to Enter Default is properly
    completed and filed with the court, the court
    clerk will enter the default of the respondent,
    and the respondent will thus be precluded from
    taking further action in the case until the default
    is set aside.
   See Figure 8-9 on pages 348-349.
   At this time the matter can be set for hearing on
    the default “prove-up.”

                                                      53
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   This typically involves an appearance by the petitioner
    by the in court in front of the judge with all of the
    paperwork involved pertinent to obtaining the relief
    requested in the Petition, and then giving testimony to
    support his or her requests.
   In some of the larger counties, the personal appearance
    of the petitioner is not required: The petitioner may
    simply send all of the various documentation to the
    court along with an evidentiary declaration supporting
    the requested relief, and with a proposed judgment to
    be signed and entered by the court.

                                                          54
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   There are several other papers that must be completed
    by the petitioner and submitted to the court.
   They include:
   1. Declaration for Default or Uncontested Dissolution
    (form FL-170)
   2. Income and Expense Declaration (form FL-150)
   3. Declaration of Disclosure (form FL-140)
   4. Judgment (form FL-180)
   5. Notice of Entry of Judgment (form FL-190) along
    with two stamped envelopes, one addressed to the
    petitioner and one addressed to the respondent

                                                            55
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   A close relative to the default procedure is one which is
    uncontested.
   Many individuals wish to avoid the inconvenience and
    expense associated with a protracted trial in a family law
    matter.
   As such, they are free to sit down with each other and
    work out a mutual basis for agreement on all issues.
   The process for an uncontested dissolution is basically
    the same as with default matters, the only fundamental
    difference being that it is based not upon failure of the
    respondent to participate, but on a judgment to which
    both parties have stipulated.

                                                            56
        F. DEFAULT AND
     UNCONTESTED HEARINGS
   Assuming the matter proceeds as uncontested rather
    than by default, the respondent will participate in the
    proceedings by virtue of filing an “Appearance,
    Stipulations, and Waivers.”
   See Figure 8-14 on page 367.
   In both default and uncontested dissolutions, the
    effective date of the dissolution of marriage is that date
    which is six months from the date the respondent was
    served with the summons and petition, entered a
    general appearance in the action, or the date the
    judgment was entered, whichever is later.
                                                             57
        G. CONTESTED TRIALS
   Most family law trials are conducted in much the
    same manner as any other civil trials.
   Once a case approaches the trial date, it
    becomes necessary to organize all of the
    evidence acquired during the discovery process
    and to distill that information into a cohesive
    body of facts that can be presented to the trial
    judge in an organized manner.

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          G. CONTESTED TRIAL
   Once a lengthy or complex case is within 60 to 90 days
    of the date of trial and has an estimated trial date in
    excess of on or two days, the trial judge will generally
    call both counsel into chambers to informally discuss
    certain aspects of the trial in hopes that it can be
    streamlined by dealing with certain objections,
    obtaining stipulations to the admissibility of certain
    evidence, pre-marking exhibits, and exchanging and
    identifying lists of exhibits and witnesses.
   The lawyers and the judge will also discuss the order in
    which the various issues will be tried.

                                                           59
         G. CONTESTED TRIALS
   The pretrial conference can also lead to
    settlement discussions.
   Following the informal pretrial conference, the
    judge will typically schedule a mandatory
    settlement conference.
   Once the parties have gone through the
    informal pretrial conference and the mandatory
    settlement conference, it is time to start the trial.

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          G. CONTESTED TRIAL
   At the trial, the petitioner will go first and will
    present witnesses and documents to support her
    position and requests.
   After the petitioner has completed her
    presentation, the respondent presents witnesses
    and documents in support of his position.
   Once all the evidence has been presented to the
    court, the lawyers are entitled to give a closing
    or final argument to the judge.

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         G. CONTESTED TRIALS
   Once both sides have given their closing arguments, the
    judge will either make a decision on all of the contested
    issues right then from the bench or will take the matter
    under submission, preferring to give additional thought
    to the evidence that has been presented and formulate
    an opinion accordingly.
   Following entry of the court’s decision and judgment
    with respect to the issues presented at trial, if one or
    both of the parties are unhappy with the outcome,
    under appropriate circumstances they will have the
    right to appeal the decision.

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              H. CONCILIATON
               PROCEEDINGS
   The Family Code makes provision for the superior
    court to intervene on an informal basis and work with
    the parties to save their marriage.
   Not all counties are required to establish and maintain a
    conciliation court.
   As a practical matter, however, most larger counties do.
   Either parent (or spouse) or both may file a petition for
    conciliation.
   It is intended that this petition will be filed before any
    litigation is commenced.

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              H. CONCILIATION
               PROCEEDINGS
   Once the petition has been filed, the court sets a time
    and place for the hearing and will give notice of this
    hearing to all interested parties.
   The hearings themselves are informal and are
    conducted not as trials but as conferences, much like
    more traditional marriage counseling.
   The supervising and associate counselors take the
    laboring oar in conducting these hearings, making
    recommendations to the judge as appropriate.


                                                              64
              H. CONCILIATION
               PROCEEDINGS
   The goal of the Family Conciliation Court is to provide
    reconciliation services, not to generate court orders; after
    all, no judge can order parties to stay together.
   Everything about the proceedings of the conciliation
    court is designed to allow the parties easy access to the
    court free of charge and the opportunity to present
    their differences to counselors trained in the fields of
    psychology, social work, marriage and family
    counseling, child development, child abuse, and many
    other related areas.

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                I. MEDIATION
   A concept closely related to conciliation is
    mediation.
   Mediation presupposes that litigation has already
    commenced.
   The purpose of mediation is to reduce acrimony
    and help the parties come to an agreement
    regarding custody and visitation issues.


                                                    66
                I. MEDIATION
   The mediation proceeding itself must be set so
    that it will take place either before or on the
    same date as the custody or visitation matter has
    been set for hearing.
   Not all mediation sessions produce agreement
    between the parties, and in those instances the
    mediator usually refers the parties back to the
    court for resolution of the dispute.

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     J. PARENTAL COUNSELING
   In order to facilitate communication between
    parents regarding their children’s best interest
    and to improve the parenting skills of both
    parents, the court is empowered to require
    parents who are involved in a custody or
    visitation dispute to participate in “outpatient
    counseling with a licensed mental health
    professional, or through other community
    programs and services that provide appropriate
    counseling . . . for not more than one year.”
                                                       68
     J. PARENTAL COUNSELING
   The parties will typically each pay for their own
    counseling under these provisions and share the costs
    of the counseling for the child in a proportion deemed
    appropriate by the court.
   The Family Code gives the court the opportunity to
    evaluate the situation existing between the parties and,
    rather than simply imposing its orders on them, refer
    them to counseling in hopes that the facts and
    circumstances at the heart of the problem can be
    addressed and remedied.

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