Understanding the Basics of Your Colorado Divorce or Custody Hearing (part 1)

As I often indicate, each Denver area divorce or custody case is unique, with its own twists, turns and variables which can come to play and, potentially, have an impact on the outcome of a case. An experienced Denver family law attorney knows how to deal with those nuances to his or her clients’ advantage, when possible. A seasoned attorney dealing with a Douglas County divorce knows that the outcome might be different from one in Jefferson County. Beyond the subjective intricacies that each case may hold, there are also basic fundamentals in family law cases which hold true, regardless of which county a case is docketed in. One of those relates to court procedure, particularly when it comes to contested hearings.

In all Denver metropolitan area divorce or custody cases, an initial status conference is required. This is an initial meeting with the court for purposes of assessing where the case is at, is headed, and what needs to be done to get there. There may also be secondary status conferences, whether in person or by telephone. In some cases, such as a contempt of court matter, there will be a perfunctory advisement hearing, which will be the first, and lesser, interaction with the court. Each of these lesser court appearances is important. That being said, none are the final hearing each person anticipates as the potential end point of his or her divorce or custody case.

Your final hearing is where the contested issues are decided. Your family law judge, or magistrate, will ultimately make decisions regarding division of property, what child support should be, or who might get the kids more often. Until speaking with an attorney, people often assume the final hearing is just as informal as the prior conferences, or perhaps entails a few people sitting in the courtroom engaging in a free flowing dialogue with the judge. It’s not.

In the broad scheme of your case, that final, contested hearing is your Super Bowl, your D-Day, your chance to fight for the outcome you are seeking to resolve your case. It’s not the cute scene from Mrs. Doubtfire, with Robin Williams pleading his case to the judge to see his kids, after having been figured out as the cross-dressing, lovely elderly nanny. It’s not the shenanigans from the Jim Carey movie, Liar Liar. Rather, your final hearing will be more like the toughest courtroom scenes from any number of more serious legal movies, or perhaps like the second, courtroom half of a Law and Order episode. There will be testimony from the parties, and potentially other witnesses. There will be evidence or exhibits presented. There will be arguments and objections. There will also be rules, both procedural and substantive in nature, which will govern how the hearing is conducted.

The final hearing in your Colorado divorce or custody case will generally be a well choreographed event. Going into that hearing, each litigant should be aware of the sequence of events in terms of how the hearing will go so that he or she knows what to expect and understands what is transpiring at any given time.

Contested hearings in a divorce, custody, or child support case are presided over by a judge, who will make the decisions. There are no juries in family law case. At any contested hearing I have taken part in, the first thing the presiding judicial officer will ask is whether the parties are ready to proceed. Usually they are. The judge will then ask if there are any preliminary matters to be discussed prior to getting down to the conducting of the evidentiary phase of the hearing. Presuming there are not, the first phase of the hearing will usually be “opening arguments.” At this stage, the attorneys will generally present to the court their parties’ positions on the various issues, what specific relief they are requesting, what issues or bits of potential evidence they might want the court to pay particular attention to, and what they believe the evidence will ultimately show. Opening arguments are not for purposes of presenting evidence, nor for summarizing the evidence and testimony in a conclusive manner. Rather, they are designed to give the court an understudying of the issues, where the hearing is headed, and perhaps some preemptive food-for-thought to digest as the hearing unfolds. Each side will normally be given the chance to make an opening argument, though sometimes they are waived by either or both sides. Waiving of opening arguments can might be done strategically, for time sake, or because the judge suggests that he or she doesn’t need to hear opening statements.

Once opening arguments are concluded, the first party will begin presenting his or her case. This is the critical stage of any contested hearing. The court will ultimately make it’s ruling based on the testimony and evidence it hears or receives. In a pre-decree divorce case, or pre-final orders custody or child support case, the “petitioner,” meaning the person who filed the case, gets to go first in terms of calling witnesses. This will almost always include the party, as well as any lay or expert witnesses needed to testify as to the various issues or evidence to be presented. The initial examination of these witnesses will be called “direct examination,” which will be discussed further below. In a post-decree or post-final orders hearing, the party bringing the action, generally the one filing the motion giving rise to the hearing, will get to go first, regardless of whether they were the petitioner or the “respondent” at the beginning of the court case. The party going first is also in the unique position to call the other party to the stand prior to him or her getting to present his or her side of the case. In some instances, this can be an effective tool for taking the wind out of the proverbial sails of the other side. I have never seen a judge object to one side taking liberty to call the other party to the stand preemptively.

I will continue to portray the other sequential and substantive aspects of a contents hearing in the second segment of this article. This will include looking at the remainder of the hearing, including identifying the types of testimony, the additional sequential aspects of the trial, the admission of exhibits, and how rules of evidence come into play. Again, everyone should know what he or she is in for when it comes to that final hearing. Contacting a Colorado family lawyer can help, as no movie, TV show, or amount of second-hand knowledge from friends can truly convey what your hearing will really be like.

Understanding The Basics of Your Colorado Divorce or Custody Hearing (Part 2)