Informal Custody Trial Presented by Judge Benjamin Simpson and Judge Penny Friedlander

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Informal Custody TrialPresented by Judge
Benjamin Simpson and Judge Penny Friedlander

• Test driven and road ready!

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Is the case appropriate for I.C.T. ?

• Considerations
• Substance abuse
• Domestic violence
• Child abuse

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Is the case appropriate for I.C.T. ?

• Mental illness
• Parental alienation
• Pending criminal cases
• Level of conflict

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Informal Custody Trial

• Is the Court comfortable with the process?
• Trading cases?

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Introducing the I.C.T. Option

• Inform the parties of the option early in the
  litigation.
• Inform the parties of the waiver and consent
  documents.

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Preparation

• Importance of disclosure of evidence (practice
  pointer- check volume)
• Use of pre-trial order or pre-trial conference to
  insure exchange of exhibits
• Inquiry

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Waiver and Consent
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Waiver and Consent

• CONSENT TO INFORMAL CUSTODY TRIAL
• WAIVER OF THE RULES OF EVIDENCE FOR INFORMAL
  CUSTODY

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Waiver and Consent

• Website Idaho State Judiciary
• http//www.isc.idaho.gov/rulesfrm.htm

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Waiver and Consent cont.

• Inquiry (swear the parties)
• Were threats or promises made to pressure you to
  consent to the informal custody process or to
  waive the rules of evidence?

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Waiver and Consent cont.

• Inquiry continued
• Did you read and do you understand the consent
  to informal custody trial and waiver of the rules
  of evidence documents?

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Waiver and Consent cont.

• Inquiry continued
• What is your level of formal education?

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Waiver and Consent cont.

• Findings
• Waiver and Consent knowingly, intelligently and
  voluntarily entered
• With advice of legal counsel (if applicable)
• Counsel stipulates the Informal Custody Trial is
  appropriate for this case and their clients

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Evidence

• Increasing likelihood of evidence that is relevant

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Evidence

• Information as to legal standards
• Joint Legal Custody 32-717B (3)
• Joint Physical Custody 32-717 (2)
• If modification, material and substantial change
  in circumstances
• Best Interest Factors 32-717 (1)

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Evidence

• Focus the Evidence
• Redirection
• Questions from the Court
• Weight and hearsay
• Mudslinging

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Evidence

• Witnesses?
• Expert
• Lay

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Fairness

• No artificial time limits
• Poor communication skills
• Limitation of appeal
• Feeling heard

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Role of the Lawyers
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Role of the Lawyers

• Preparation
• Argument and opening statements
• Coaching at counsel table
• Requesting a recess
• Client control

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When To Pull the Plug
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Decision
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Decision

• Weighing the evidence
• Credibility
• No Need to rush
• Efficiency doesnt trump good work

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Decision cont.

• Explain
• Validate
• You control the degree of formality

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General Tips
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General Tips

• Parties sit at counsel table during the
  proceedings

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General tips cont.

• Positive note at the end of the testimony
• Court asks party to express a positive parenting
  quality for the other parent

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General Tips cont.

• Active listening
• Developing patience
• Be Yourself

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General Tips cont.
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Enjoy the journey...