Informal Custody Trial

Presented by Judge Benjamin Simpson and Judge Penny Friedlander

Test driven and road ready!

Is the case appropriate for I.C.T. ?

Considerations:

Substance abuse

Domestic violence

Child abuse

Is the case appropriate for I.C.T. ?

Mental illness

Parental alienation

Pending criminal cases

Level of conflict

Informal Custody Trial

Is the Court comfortable with the process?

Trading cases?

Introducing the I.C.T. Option

Inform the parties of the option early in the litigation.

Inform the parties of the waiver and consent documents.

Preparation

Importance of disclosure of evidence (practice pointer- check volume)

Use of pre-trial order or pre-trial conference to insure exchange of exhibits

Inquiry

Waiver and Consent

Waiver and Consent

CONSENT TO INFORMAL CUSTODY TRIAL

WAIVER OF THE RULES OF EVIDENCE FOR INFORMAL CUSTODY

Waiver and Consent

Website: Idaho State Judiciary

http://www.isc.idaho.gov/rulesfrm.htm

Waiver and Consent cont.

Inquiry (swear the parties)

Were threats or promises made to pressure you to consent to the informal custody process or to waive the rules of evidence?

Waiver and Consent cont.

Inquiry continued;

Did you read and do you understand the consent to informal custody trial and waiver of the rules of evidence documents?

Waiver and Consent cont.

Inquiry continued;

What is your level of formal education?

Waiver and Consent cont.

Findings

Waiver and Consent: knowingly, intelligently and voluntarily entered

With advice of legal counsel (if applicable)

Counsel stipulates the Informal Custody Trial is appropriate for this case and their clients

Evidence

Increasing likelihood of evidence that is

relevant

Evidence Information as to legal standards

Joint Legal Custody § 32-717B (3)

Joint Physical Custody § 32-717 (2)

If modification, material and substantial change in circumstances

Best Interest Factors § 32-717 (1)

Evidence

Focus the Evidence

Redirection

Questions from the Court

Weight and hearsay

“Mudslinging”

Evidence

Witnesses?

Expert

Lay

Fairness

No artificial time limits

Poor communication skills

Limitation of appeal

Feeling heard

Role of the Lawyers

Role of the Lawyers

Preparation

Argument and opening statements

Coaching at counsel table

Requesting a recess

Client control

When To Pull the Plug

Decision

Decision

Weighing the evidence

Credibility

No Need to rush

Efficiency doesn’t trump good work

Decision cont.

Explain

Validate

You control the degree of formality

General Tips

General Tips

Parties sit at counsel table during the proceedings

General tips cont.

Positive note at the end of the testimony

Court asks party to express a positive parenting quality for the other parent

General Tips cont.

Active listening

Developing patience

Be Yourself

General Tips cont.

Developing patience

Be Yourself

Active Listening

Enjoy the journey...