Judge Found Material Change of Circumstances Without Being Asked to Do So
My question involves a child custody case from the State of: Arkansas
There are a few points that I will try to clarify as briefly as possible.
First, at time of first order, Joint custody was NOT preferred in Arkansas. At time of trial, new law states that Joint Custody is Preferred.
Divorce and Joint Custody awarded in 2004. Joint custody did not specify Legal vs Physical. However, the time/structure resembled a legal joint with a physical belonging to dad. The mother was moving during the divorce, due to work but was not clear if she would be relocated 2.5 hours south or 2.5 hrs west. A few months after the divorce, mom moved west. Informal arrangements were made to accommodate meeting times/places and were 8 years.
2013- Dad (plaintiff) petitions court to modify custody due to 1. The children are older 2. The defendant is unwilling to cooperate with children's wishes and therefore denies the children to participate in school, social and sporting events. 3. The defendant has scheduled doctors appointments that caused one child to miss the morning of one day of school.
During interrogatories, the Plaintiff was unable/unwilling to provide specific dates/times of events missed due to defendants actions, but rather generalized that many events had been missed and that people simply didn't invite the kids because "everyone knows the defendant won't allow kids to participate".
During trial, Plaintiff brings the children to testify, even though it was agreed they would not be called in and they were not listed on the witness list.
Plaintiff admits that children had made it to every requested event except for 1 in the last 2-3 years. The plaintiff states that somewhere around 4 or 5 years ago, the son missed a couple of pee wee football/baseball games and or practices. Could not provide specific details.
Plaintiff and Defendant testify to Defendant actually spends at least and avg of 25% of her visitation time in the town the children spend their weekdays (go to school) so that the children can attend special functions.
At no time was any evidence provided of any specific details that supported the Plaintiff's claims. Other than the vague generalizations by the plaintiff during his testimony... One claim was that the mother made the daughter miss most of her softball games 2 years ago. However, during cross, the plaintiff did admit that the daughter had broken her nose the first week of softball and was not medically permitted to play for the entire season. The father did also state that the one item the son has missed in recent years was "pad pick up day" for football. This was not a mandatory, organized event and the plaintiff admitted that he did not notify the mother because he knew that she wouldn't let the son go.
regardless of the Judges "off the record" comments in chambers regarding the surprise of the defendants lack of information and blatant disregard for the mother (judge clearly stated that he had known plaintiff since he was a little boy which we knew and are not arguing). The judges ruling is summarized as:
Full custody to Plaintiff based on Material changes of 1. The kids are older and their needs have changed along with 2. He remembers that he only agreed to "True Joint custody" originally with equal time because mom was going to be living in the same time. Regardless of testimony to the contrary.
My ultimate question is, is it customary for the judge to create (or recognize) a Material Change that was not even argued nor petitioned for in the first place?
I know that there is appeal possibilities (granted slim) due to a lack of evidence to support the plaintiff's claims. My ultimate concern is that this case, based on the arguments, was clearly worth fighting as the defendant was clear in the fact that she had NOT willfully interfered with the children's activities and that the vast majority of the Plaintiff's claims were erroneous and thus would not hold up in court. Plaintiff was correct and yet the ruling was based on a claim that a move 8 years ago was now a surprise change and that the children got older. Both points that are basically ridiculous to argue. Can't argue the judges' memory. Nor can we argue that the children have not aged in the last 8 years...
Any thoughts?
Not that it matters either, but the Plaintiff's father happen to replace the judge as the county prosecutor 30 years ago and is still in that capacity.
There are countless additional details but I will save time by ending here and responding to any questions that are asked.
Thank you in advance to anyone's thoughts/direction. Note this ruling has not been entered so our window is still open for appeal and/or any motions.
Re: Judge Found Material Change of Circumstances Without Being Asked to Do So
testimony is evidence ... if you did not object to the legal conclusion aspect of the testimony .. oh well.
once someone asks for a ruling, the judge's discretion comes into play; they have a great deal of discretion.
Re: Judge Found Material Change of Circumstances Without Being Asked to Do So
Customary or not, a judge has an incredible amount of latitude. If the petitioner is pro se, some judges will go (and will do so legally) above and beyond in assisting the petitioner.
If you wish to appeal the decision, appeal the decision.
Re: Judge Found Material Change of Circumstances Without Being Asked to Do So
did I miss something? You say the judge made a ruling based on a discretionary review of the situation without being asked to do so. That would be this:
Quote:
Full custody to Plaintiff based on Material changes of 1. The kids are older and their needs have changed along with 2. He remembers that he only agreed to "True Joint custody" originally with equal time because mom was going to be living in the same time. Regardless of testimony to the contrary.
My ultimate question is, is it customary for the judge to create (or recognize) a Material Change that was not even argued nor petitioned for in the first place?
yet you started out with saying this:
Quote:
2013- Dad (plaintiff) petitions court to modify custody due to 1. The children are older 2. The defendant is unwilling to cooperate with children's wishes and therefore denies the children to participate in school, social and sporting events. 3. The defendant has scheduled doctors appointments that caused one child to miss the morning of one day of school.
Obviously the court was asked to reconsider the situation due to the children aging. That leaves your issue with the statement the judge recalled the original order, you believe, erroneously.
as to your statement that the judge made a decision based on a material change that was not even argued or petitioned for;
Quote:
A few months after the divorce, mom moved west.
Not sure what the problem is. Whether the judge made the original ruling based on the belief the mother would be living in the same town, the fact remains you are no longer living in the same town and that is a material change of circumstances. A judge would be remiss for not recognizing the change of circumstances.
Re: Judge Found Material Change of Circumstances that plaintiff did not
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Quoting
Dogmatique
Customary or not, a judge has an incredible amount of latitude. If the petitioner is pro se, some judges will go (and will do so legally) above and beyond in assisting the petitioner.
If you wish to appeal the decision, appeal the decision.
2 things: Any idea of potential costs? Just, possibly in relation to other costs. I have an idea of cost to defend a suit with trial. I don't know yet (needing final, official order) if appeals are along similar lines or do they skyrocket in costs?
Second, I understand that I have the right to appeal, however, I need to see if I have any good grounds. Obviously that's more than what could be covered on this forum. I am a little deflated because the "material changes" cited are nearly impossible to argue. So now the best interest of the kids becomes the next point. The challenge there is that the only evidence is testimony and a handful of emails. The emails really only point to dad not being very easy to communicate with. So we're left with due deference and a hope that the actual words of his testimony can be used against him.
Re: Judge Found Material Change of Circumstances that plaintiff did not
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Quoting
Twik
During interrogatories, the Plaintiff was unable/unwilling to provide specific dates/times of events missed due to defendants actions, but rather generalized that many events had been missed and that people simply didn't invite the kids because "everyone knows the defendant won't allow kids to participate".
Interrogatories or depositions?
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Quoting Twik
During trial, Plaintiff brings the children to testify, even though it was agreed they would not be called in and they were not listed on the witness list.
The defendant could have objected - you do not indicate that she did. Should we infer that the children's testimony did not favor her?
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Quoting Twik
At no time was any evidence provided of any specific details that supported the Plaintiff's claims. Other than the vague generalizations by the plaintiff during his testimony...
You can discuss the quality of the testimony with your lawyer if you are considering an appeal.
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Quoting Twik
regardless of the Judges "off the record" comments in chambers regarding the surprise of the defendants lack of information and blatant disregard for the mother (judge clearly stated that he had known plaintiff since he was a little boy which we knew and are not arguing)....
If you knew of the judge's relationship with the other party and chose not to seek recusal, you cannot be surprised that the judge remained on the case consistent with your choices. The fact that the judge reminded you of that known, past relationship is not of itself an indication of bias.
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Quoting Twik
My ultimate question is, is it customary for the judge to create (or recognize) a Material Change that was not even argued nor petitioned for in the first place?
Given that states typically require a court to find a material change in circumstances before modifying custody, it is anything but a surprise that the court did so. The plaintiff argued that certain developments constituted a material change, so even if the plaintiff did not also say, "I want you to find that these changes constitute a material change" that's implicit in the petition.
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Quoting Twik
...and yet the ruling was based on a claim that a move 8 years ago was now a surprise change and that the children got older. Both points that are basically ridiculous to argue. Can't argue the judges' memory. Nor can we argue that the children have not aged in the last 8 years...
Sometimes the changing needs of the children over time can constitute a material change of circumstances. If relocation subsequent to the last formula played a role in why and how circumstances had changed, that move would appear to be relevant to the overall picture. You should discuss these issues in detail with your lawyer, as all we can do (as we have virtually none of the facts) is offer abstractions.
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Quoting
Twik
2 things: Any idea of potential costs? Just, possibly in relation to other costs. I have an idea of cost to defend a suit with trial. I don't know yet (needing final, official order) if appeals are along similar lines or do they skyrocket in costs?
The only way to get a meaningful sense of what an appeal would cost is to discuss the case in detail with an appellate lawyer, preferably giving the lawyer as much of the record as is available along with any available transcripts. The cost depends upon factors including the issues deemed worthy of appeal, the complexity and duration of lower court proceedings, the complexity or novelty of the issues.
Re: Judge Found Material Change of Circumstances that plaintiff did not
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Quoting
Mr. Knowitall
Interrogatories or depositions? Interrogatories
The defendant could have objected - you do not indicate that she did. Should we infer that the children's testimony did not favor her?It was objected. Over ruled yet option of bringing the children back at a later time and depositions. The children have been taught the story line over the last 10 months and went from not wanting to lose time with mommy but just wanting to spend more time going to parties at friends houses and going to the movies... To the time of trial, "I only want to see mommy every other week"... The children and Dad's testimony as to amount of time spent talking with dad about how/why they want a change varied from 3-6 times to weekly from the 12 yr olds words
You can discuss the quality of the testimony with your lawyer if you are considering an appeal.
If you knew of the judge's relationship with the other party and chose not to seek recusal, you cannot be surprised that the judge remained on the case consistent with your choices. The fact that the judge reminded you of that known, past relationship is not of itself an indication of bias.The judge was asked and he clarified that he could very easily be objective. Note, that was hands down and emotional add at the end. There is 0 chance that he (in this small town) stayed perfectly objective as parts of his ruling/opinion mentioned items that were not even brought up in the trial. I know, sounds like sour grapes, however, it is what it is. I have no idea if there is a recourse for the judge mentioning items that were not presented in the case. All told, we have looked for years of a way to change venue and at Every turn, with cash in hand, we were told that we could/should only hold a case and then if it is too bias, then we could argue for a change and to ask for a new trial
Given that states typically require a court to find a material change in circumstances before modifying custody, it is anything but a surprise that the court did so. The plaintiff argued that certain developments constituted a material change, so even if the plaintiff did not also say, "I want you to find that these changes constitute a material change" that's implicit in the petition.I get it. Makes sense
Sometimes the changing needs of the children over time can constitute a material change of circumstances. If relocation subsequent to the last formula played a role in why and how circumstances had changed, that move would appear to be relevant to the overall picture. You should discuss these issues in detail with your lawyer, as all we can do (as we have virtually none of the facts) is offer abstractions.Though I did not clarify in my first post, the truth is that the petition was to take a weekend away from mom based on the kids missing so much. However, it was quite clear that mom already spends that much of her time with the kids in the time that it is claimed they are being taken away from on a regular basis. It is easy that the words of the original decree can be argued to justify the words of this ruling. However the reality of what actually happens is inconsistent with both. If a judge chooses to ignore that, it seems that the appellate court will likely act in kind
The only way to get a meaningful sense of what an appeal would cost is to discuss the case in detail with an appellate lawyer, preferably giving the lawyer as much of the record as is available along with any available transcripts. The cost depends upon factors including the issues deemed worthy of appeal, the complexity and duration of lower court proceedings, the complexity or novelty of the issues.
Thank you for your input!!!
Re: Judge Found Material Change of Circumstances that plaintiff did not
If you choose to accept a vague or incomplete answer to an interrogatory, and choose not to press for details through a motion to compel or a subsequent deposition, you go to trial with what you accepted. In a case that's headed to trial, it is pretty routine to conduct depositions.
If you wanted to make the case that the children had been coached, the time to do so was at the trial. It's still not clear that you objected to their testifying.