REFERENCE GUIDE TO LEGAL DEFINITIONS & PROCESSES

CHILD SUPPORT LEGAL DOCUMENTS 101

REFERENCE GUIDE TO

LEGAL DEFINITIONS & PROCESSES

INDEX

INTRODUCTION DEFINITIONS CHAPTER 1: LOCATE DOCUMENTS CHAPTER 2: STIPULATION /or/ ESTABLISHMENT- CHILD

SUPPORT; PATERNITY CHAPTER 2a: REQUEST FOR HEARING CHAPTER 3: ENFORCEMENT/ORDER TO SHOW CAUSE CHAPTER 3A: REQUEST FOR HEARING CHAPTER 4: APPLICATION FOR DEFAULT & ORDER CHAPTER 5: MEMO FOR WARRANT CHAPTER 6: FULL, FAITH & CREDIT CHAPTER 7: MODIFICATION CHAPTER 8: REDIRECT PAYMENT; EX-PARTE CHAPTER 9: CONTINUANCE CONCLUSION

INTRODUCTION Tsande Paitsuk (Good Morning) my

name is Kim C. Lambert, I am a Legal Specialist for Eastern Shoshone Tribe Child Support Program with Mr. Ricky Blackburn our Case Specialist along Mr. Jeremy Brave-Heart, ESQ. our attorney from the Attorney General’s Office

We work hand in hand with the EST Office of the Attorney General’s Attorneys, who review all of our departments legal matters & Tribal Court Documents, they also represent our department in all trials.

.

DEFINITIONS AFFIDAVIT

n. 1) any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a County Clerk), that the statements in the document are true. 2) in many states a declaration under penalty of perjury, which does not require the oath-taking

before a notary, is the equivalent of an affidavit. ARREST WARRANT

n. a judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime, also called a warrant of arrest. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime.

CHILD n. 1) a person's natural offspring. 2) a person 14 years and

under. A "child" should be distinguished from a "minor" who is anyone under 18 in almost all states.

CHILD SUPPORT n. court-ordered funds to be paid by one parent to the custodial

parent of a minor child after divorce (dissolution) or separation. Usually the dollar amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.

CONTEMPT OF COURT n. there are essentially two types of contempt: a) being rude,

disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; b) willful failure to obey an order of the court. This latter can include failure to pay child support or alimony. The court's power to punish for contempt (called "citing" one for contempt) includes fines and/or jail time (called "imposing sanctions"). Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.

CONTINUANCE n. a postponement of a date of a trial, hearing or other court

appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or (where local rules permit) by the clerk of the court. In general courts frown on too many continuances and will not allow them unless there is a legitimate reason. Some states demand payment of fees for continuances to discourage delays.

DEFAULT n. failure to respond to a summons and complaint served on a party in

the time required by law. If a legal answer or other response is not filed, the suing party (plaintiff) can request a default be entered in the record, which terminates the rights of the defaulting party to defend the case. Under a unique New York statute a default can be taken by failure to respond to a summons served without a complaint. 2) the failure to make a payment when due, which can lead to a notice of default and the start of foreclosure proceedings if the debt is secured by a mortgage or deed of trust. 3) v. to fail to file an answer or other response to a summons and complaint, or fail to make a payment when due.

DEFAULT JUDGMENT n. if a defendant in a lawsuit fails to respond to a complaint in the

time set by law (commonly 20 or 30 days), then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. If the complaint was for a specific amount of money owed on a note, other money due, or a specific contract price (or if the amount due is easy to calculate) then the clerk of the court can enter a default judgment. If proof of damages or other relief is necessary, a hearing will be held in which the judge determines terms of the default judgment. In either case the defendant cannot speak for himself/herself. A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.

EX PARTE (ex par-tay, but popularly, ex party) adj. Latin meaning "for one

party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a diligent attempt to contact the other party's lawyer of the time and place of any ex parte hearing.

FULL FAITH AND CREDIT n. the provision in Article IV, Section 1 of the U.S. Constitution

which states: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." Thus, a judgment in a lawsuit or a criminal conviction rendered in one state shall be recognized and enforced in any other state, so long as the original judgment was reached by due process of law. Each state has a process for obtaining an enforceable judgment based on a "foreign" (out-of-state) judgment

HEARING n. any proceeding before a judge or other magistrate (such as a hearing

officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the definition, a hearing usually refers to brief sessions involving a specific question at some time prior to the trial itself, or such specialized proceedings as administrative hearings. In criminal law, a "preliminary hearing" is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.

IMPUTE v. 1) to attach to a person responsibility (and therefore financial liability)

for acts or injuries to another, because of a particular relationship, such as mother to child, guardian to ward, employer to employee or business associates. Example: a 16-year-old boy drives his father's car without a license and runs someone down. The child's negligence may be imputed to the parent, or, in the reverse, a mother drives her car and collides with a truck driven over the speed limit, and her baby in the front seat of the car is badly injured, in part due to not being put in a safety seat with a seat belt. The mother's negligence can be imputed to the child in any claim on behalf of the child against the truck driver. 2) to attribute knowledge and/or notice to a person only because of his/her relationship to the one actually possessing the information. Example: if a partner in a business is informed of something, that knowledge is imputed to his/her partner, and the partner is expected to have the information also.

MOTION n. a formal request made to a judge for an order or judgment.

Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party's case, for a rehearing, for sanctions (payment of the moving party's costs or attorney's fees), or for dozens of other purposes. Most motions require a written petition, a written brief of legal reasons for granting the motion (often called "points and authorities"), written notice to the attorney for the opposing party and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted.

MODIFICATION n. a change in an existing court order or judgment made

necessary by a change in circumstances since the order or judgment was made or to cure an error. A motion (petition) to the court for modification is common after divorce judgments because the courts "retain jurisdiction" over matters concerning the children which may need changes such as terms of child support and custody.

MAJORITY n. 1) the age when a person can exercise all normal legal rights,

including contracting and voting. It is 18 for most purposes, but there are rights such as drinking alcoholic beverages which is set at 21. 2) 50 percent, plus one of votes cast.

PARENT n. the lawful and natural father or mother of a person. The word

does not mean grandparent or ancestor, but can include an adoptive parent as a replacement for a natural parent.

PATERNITY SUIT n. a lawsuit, usually by a mother, to prove that a named person

is the father of her child (or the fetus she is carrying). Evidence of paternity may include blood tests (which can eliminate a man as a possible father), testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another may lead to a prompt and quiet settlement.

PETITION 1) n. a formal written request to a court for an order of the

court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions. 2) n. a general term for a writing signed by a number of people asking for a particular result from a private governing body (such as a homeowners association, a political party, or a club). 3) in public law, a writing signed by a number of people which is required to place a proposition or ordinance on the ballot, nominate a person for public office, or demand a recall election. Such petitions for official action must be signed by a specified number of registered voters (such as five percent). 4) v. to make a formal request of a court; to present a written request to an organization's governing body signed by one or more members. 5) n. a suit for divorce in some states, in which the parties are called petitioner and respondent.

PETITIONER n. one who signs and/or files a petition.

RESPONDENT n. 1) the party who is required to answer a petition for a court order or

writ requiring the respondent to take some action, halt an activity or obey a court's direction. In such matters the moving party (the one filing the petition) is usually called the "petitioner." Thus, the respondent is equivalent to a defendant in a lawsuit, but the potential result is a court order and not money damages. 2) on an appeal, the party who must respond to an appeal by the losing party in the trial court (called "appellant") in the appeals court.

REQUEST 1) v. to ask or demand a judge to act (such as issuing a writ) or

demanding something from the other party (such as production of documents), usually by a party to a lawsuit (usually the attorney). 2) n. the act of asking or demanding.

ORDER 1) n. every direction or mandate of a judge or a court which is not

a judgment or legal opinion (although both may include an order) directing that something be done or that there is prohibition against some act. This can range from an order that a case will be tried on a certain date, to an order that a convicted defendant be executed at the state prison. 2) v. for a judge to direct that a party before the court perform a particular act or refrain from certain acts, or to direct a public official or court employee (like a sheriff) to take certain actions such as seizing property or arresting an AWOL defendant.

ORDER TO SHOW CAUSE n. a judge's written mandate that a party appear in court on a

certain date and give reasons, legal and/or factual, (show cause) why a particular order should not be made. This rather stringent method of making a party appear with proof and legal arguments is applied to cases of possible contempt for failure to pay child support, sanctions for failure to file necessary documents or appear previously, or to persuade the judge he/she should not grant a writ of mandate against a governmental agency.

STIPULATION n. an agreement, usually on a procedural matter, between the

attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.

OR AGREED STATEMENT

n. occasionally the two parties on opposite sides of a lawsuit or on an appeal from a trial judgment will agree upon certain facts and sign a statement to be used in court for that purpose. Agreed statements are only used when the only remaining dispute boils down to a question of law and legal argument and not of the actual facts.

WARRANT 1) n. an order (writ) of a court which directs a law enforcement

officer (usually a sheriff) to arrest and bring a person before the judge, such as a person who is charged with a crime, convicted of a crime but failed to appear for sentencing, owes a fine or is in contempt of court. A "bench warrant" is an order to appear issued by the court when a person does not appear for a hearing, which can be resolved by posting bail or appearing. A "search warrant" is an order permitting a law enforcement officer to search a particular premises and/or person for certain types of evidence, based on a declaration by a law enforcement official, including a district attorney. 2) v. to claim to a purchaser that merchandise is sound, of good quality or will perform as it should, or that title to real property belongs to the seller.

CHAPTER 1LOCATE

*This step is VERY IMPORTANT as it is our foundation to start our Legal process.

YOU MUST HAVE A CORRECT AND DELIVERABLE PHYSICAL ADDRESS FOR THE NCP!

There are 4 forms we use & also use the State office POSSE

CHAPTER 2 & 2A STIPULATION /OR/ ESTABLISHMENT-

CHILD SUPPORT; PATERNITY IF WE CAN COME TO AN AGREEMENT BETWEEN THE

CP & NCP THEN WE WILL DRAW UP A STIPULATION TAKE IT OVER TO THE TRIBAL COURT & HAVE THE JUDGE SIGN IT, AT THIS POINT IT BECOMES AN “ORDER”-THIS IS A 2 STEP PROCESS

IF WE CANNOT COME TO AN AGREMMENT BETWEEN THE PARTIES THEN WE MUST START THE LEGAL PROCESS TO GO TO TRIAL WITH ESTABLISHMENT PETITION, AFFIDAVIT, SUMMONS, CERT OF SERVICE THEN AN ORDER. THIS IS A 5 STEP PROCESS THEN AFTER NCP IS SERVED WAIT 20 DAYS (DUE PROCESS) THEN FILE A REQUEST FOR HEARING

ONCE YOU FILE THE AFFIDAVITS,PETITION&SUMMONS YOU MUST CALL THE PROCESS SERVER TO SERVE THESE DOCUMENTS , THEN AFTER WAITING 20 DAYS (DUE PROCESS) YOU WILL FILE A REQUEST FOR HEARING.

CHAPTER 3 & 3A ENFORCEMENT- ORDER TO SHOW

CAUSE

MUST START THE LEGAL PROCESS TO GO TO TRIAL WHEN THE NCP DISOBEY’SO THE ESTABLISHMENT COURT ORDER. THIS IS A 5 STEP: PETITION, AFFIDAVIT, SUMMONS, CERT OF SERVICE THEN AN ORDER. THIS IS A 5 STEP PROCESS THEN AFTER NCP IS SERVED WAIT 20 DAYS (DUE PROCESS) THEN FILE A REQUEST FOR HEARING


CHAPTER 4 APPLICATION FOR DEFAULT & ORDER

THIS IS A 2 STEP PROCESS


CHAPTER 5MEMO FOR WARRANT

THIS IS A 4 STEP PROCESS- You must have the New Order to Show Tribal Court Order Cert of Service (when NCP was served) and MEMO to give to the tribal Prosecutor

CHAPTER 6FULL FAITH & CREDIT



CHAPTER 7MODIFICATION



CHAPTER 8RE-DIRECTION FOR PAYMENT; EX-

PARTE


CHAPTER 9CONTINUANCE

THIS IS 2 STEP PROCESS

CONCLUSION:

There are many steps to the legal process and a few more that may be utilized for your needs in your department and these forms may be different than what your Tribal Department and Tribal Court authorized. These forms shown are the most common used in our field.

Thank you from Kim C. Lambert, Ricky Blackburn & Mr. Jeremy Brave-Heart,

ESQ.

PRESENTER'S INFO: Jeremy Brave-Heart ESQ Attorney

Office of Attorney General EST

P.O. Box 1644

Fort Washakie, WY 82514

307-335-8249

[email protected] Kim C. Lambert Case Manager/ Legal

P.O. Box 1573


307-335-8371

[email protected] Ricky Blackburn Jr. Case Specialist

P.O. Box 1573


307-335-8371

[email protected]

mailto:[email protected]

