In family law cases (divorce, custody, child support, etc.) unless you practice in a county that only has one judge, you will not know who your judge will be until the day before the merits hearing (the final hearing) which is approximately 9 months to a year after you file.
While in theory each judge should consider the same laws and factors within those laws, each judge brings their own perspective to the table when considering the factors of a case and ultimately rendering a decision.
Although I pride myself on being able to negotiate successful, amicable settlement agreements for my clients, this is not always the case and I do have to go to court many cases for clients that do reach a settlement agreement.
I want to tell you about two recent court cases in the same county, with somewhat similar factors, in front of two different judges and with ultimately two polar opposite decisions. I am relaying these stories for several reasons. When you read these stories, please think about this:
you do not know which judge you are going to be in front of until approximately a year after you file your complaint and it may be a judge that tends to consider the factors to your detriment; and even if you get everything you wanted (which is very rare in family law cases) is it really worth the time, energy, emotions, and expenses of going to court?
I had a case where I represented a father of a 5 year old girl. This father was a police officer working night shifts 4 days a week and was off from work for 3 straight days. The parents were never married and there was disagreement as to whether the father was involved in the child’s life for the first 3 years of his daughter life. Nonetheless, neither party stated that the other party was unfit. The parties lived approximately 10 minutes from each other and from the child’s school. Mom’s biggest concern was that dad tends to be sleepy (especially the first day after his last day of work for the week) and that he was not involved in the child’s life previously. Dad’s biggest issue was that he was prevented from being involved in their daughter’s life, as prior to the filing he was only allowed to have dinner visits and no overnights, then once the case began 2 dinner visits a week and one overnight a week, then right before the merits hearing no dinner visits, but 2 overnights a week. In the end the judge granted my client’s request and during the school year allowed him to have his daughter in his care 3 nights a week and in the summer the parties were ordered to alternate having their daughter in their respective care on an alternate week basis. Even though my client obtained the custody arrangement (and more) that he was seeking, he was still required to contribute towards the mother’s attorney fees (because of the discrepancy of the parties income).
A few months later in the same court, but in front of a different judge, I had another custody hearing, where I represented the father again (I tend to have an equal amount of mother clients and father clients, with an equal amount of them settling and/or going to court). In this case the parties were previously married and dad was seeking a modification of a settlement agreement the parties entered into at the time of their divorce. At the time of the parties divorce dad was an active marine who was stationed to California. When the parties divorced their daughter was not yet school age and they agreed until she became school age dad would have at least 120 consecutive overnights a year. However, once she was school aged, they agreed that their daughter would reside in Maryland with mom during the school year and dad would have the bulk of the summer and school holidays. Prior to their daughter entering kindergarten, dad was medically discharged from the marines and moved back to Maryland. Mom refused to renegotiate the access schedule now that dad was living only 15 minutes from mom and their daughter’s school. For the first 5 months after his 120 consecutive overnight period ended, mom refused dad to have any overnight access (since the agreement did not require her to provide him with overnights). The next 5 months preceding the merits hearing, mom did begin allowing dad to have one dinner visit a week and alternate weekend (Friday-Sunday). At trial the parties stipulated that there was a material change of circumstance that warranted the judge to consider the 11 factors as it would if this was an original custody case. During the hearing neither party stated that the other party was unfit. The parties lived approximately 15 minutes from each other and from the child’s school. Both parties biggest argument against each other is their inability to communicate effectively with each other. Almost 3 months after the trial concluded, and immediately after dad filed a motion to reopen testimony due to allegations that had occurred since the hearing concluded, the judge ruled that dad would only have alternate weekends (Friday-Sunday) with no dinner visits during any week (less than what he was receiving during the 5 months prior to the merits hearing) and took away the bulk of the time during the summer that the parties previously agreed dad would have. Dad, for many reasons has appealed this decision, and to this day I still cannot figure out why the Judge ruled the way he did.
Although I do my due diligence to educate my client as to what a judge may or may not do, at the end of the day as an attorney, the best understanding of what a likely outcome may be in court is not until the day before trial and even then, that particular judge may ultimately end up surprising me and making a ruling that he or she “normally” does not do. Leaving the possibility for a party to file an appeal, in turn, delaying a final resolution even further and causing the parties to spend even more money than they already have.
Who wins in this case? No one but the attorneys. The judges go home at night and live their life without any knowledge of the consequences (good or bad) that their decision has made on this particular family’s life and the parties live with trying to pick up the pieces from a decision that they may or may not agree with. Lastly, the children lose out the most, because money that could have been spent on them, was instead spent on fighting about the child, without the parties being better off than they were when the their case first began or perhaps worse than when the case first began.