How To Read and Understand Judicial Orders Affecting Children

1. How To Read and Understand Judicial Orders Affecting Children Adam Miller, Esq. Benesch, Friedlander, Coplan & Aronoff LLP acmiller@beneschlaw.com 614.223.9315

2. Q: What is a Judicial "Order?" • A written expression of the Court's findings and determinations in a particular case. • An Order can be affirmative or negative.

3. Courts “Speak" Only Through Their Formal Orders • A judicial Order occurs when a Judge makes a formal disposition in a pending case. • An order is usually written but can be made orally from the bench. • An oral Court directive is typically memorialized by the court shortly after it is made.

4. What are the Types of Court Orders? • Entry • Judgment • Decree • Agreed Entry/Order • Interim Order • Restraining Order • Temporary Order • Be alert for combinations of these terms!

5. Why Are Orders Made Affecting Children? • Juvenile Court invokes jurisdiction due to abuse, neglect, dependency allegations • Child engages criminal conduct

6. Family Court Jurisdiction • Family Court invokes jurisdiction in divorce, dissolution, separation, annulment, or paternity action. • Disposition of the above requires an order determining child custody.

7. Custody is a fundamental aspect of any case, as it carries significant responsibility and financial attributes -Child support, tax credit, insurance, etc.)

8. The law in most states favors a joint custody or high measures of involvement by both parents. • Jt. Custody is now known as Shared Parenting. • Legal standard is the best interest of the child. • Preponderance of the evidence (51%).

9. Family Court Cases Proceed in Stages • Stage I: Interim Order/Entry • aka "Temp. Order" for child support, custody, health care, visitation, etc.

10. Family Court Cases Proceed in Stages • Stage II: Mediation/Pre-trial • Temp order can change now that court has heard some additional evidence.

11. Family Court Cases Proceed in Stages (FRAUD ALERT) • Losing party at earlier stage tries to alter procedural posture of case. • Only signed Orders approved by the Judge constitute a valid Court Order.

12. Family Court Cases Proceed in Stages • Stage III. Final Case Disposition. • Expressed as "Decree of __________“ • "Final Judgment of ______________"

13. "Shared Parenting Order" • A school parent must be named in a Shared parenting order. • Problematic as Court may not always express in clear concise fashion.

14. Who Actually Drafts Orders? • Asst Prosecutor, attorney representing one (or both) of the parties, law director, clerks, staff attorneys, court secretary, magistrate, even the Judge occasionally.

15. Who Issues the Order? • Magistrate, (30 day appeal) • Judge, (30 day appeal) • Appeals Court (3 members) • Municipal, Probate, Juvenile, Common Pleas. • Ohio Supreme Court

16. What to Do When Material Error Discovered? • Motion To Reconsider (ALERT). Motion looks like and Order, includes and order, but is not an Order unless Court approves.

17. Clerical Error Correction • Recommended Method: Nunc Pro Tunc, (Latin meaning "this for that"). • Used to fix factual mistakes. Does not always require a motion. • Can be submitted by private counsel or law director/prosecutor.

18. How? • Use Electronic or Paper Tickler File. • Calendar "Appointment" to remind for review.

19. Analyze Order for Proper Time Category • 2 week file, Ex Parte Order • 30 day file, Interim, Emergency Orders • 90 day file, Temp Orders • 180 days file. Child abuse, neglect cases., • 1 year file. (Final Decrees) • Make effort to synchronize with SF reconciliation submissions.

20. MUSTS • Read Order carefully to anticipate time fame for judicial review, and/or litigant actions. • Read Electronic Court Case Docket, Ask Questions! • Learn to Identify the context of the order. • Make friends with the other people who work in the system.

21. DON'TS • Do anything without verifying legitimacy of the Order. • Rely on verbal representations of what the order provides. • Interpret the Order yourself, ask for legal help.

22. ALWAYS • Bring fresh eyes to Order intake & analysis process. • Analysis process can be exhausting. • Take frequent breaks, or perform another task rather than plowing thru the Orders.

23. ALWAYS (cont'd) • Set aside a predictable time of each week or month to focus exclusively on Orders. • Train a working group at your district of people to eventually develop a cadre of experts!

24. Advanced Topics • How do you reconcile multiple orders from the same Court? • Last in time rule. Each subsequent order should specifically address custody, tuition for school purposes.

25. Advanced Topics • Grandparent Affidavits, Power of Attorney, Letters of Instruction. • Technically not an order, but can function as if an Order.

26. Specific question not addressed above? Call and ask me!

27. Adam Miller acmiller@beneschlaw.com 614.223.9312 Bensch, Friedlander, Coplan & Aronoff, LLP 41 South High Street Suite 2600 Columbus, OH 43215 614.223.9300 614.223.9330 (fax) http://www.beneschlaw.com