Wednesday, August 22, 2012


            The answer is it depends. Unlike civil or criminal courts which are solely a court of law, the family law court is also a court of equity. As a result, the family law court is entitled to utilize the concept of “fairness” when applying the law, i.e., judicial discretion. What is fair in the eyes of the court is solely up to the judge hearing the case. The judge is a person just like you and I. Although he/she is sworn not to discriminate against anyone because his/her race, creed, color, sexual orientation, etc., he/she is still just a person with a multitude of life experiences which influence his/her decisions. In addition, the judge’s perception of the facts depends on how accurately they are portrayed by the attorneys, how the parties look or act at court, the judge’s own emotional state, how much time the court has to devote to your case, and numerous other factors which may have nothing to do with the facts.
            Empowering family law courts to be courts of equity was intended to permit a court to excuse a party from technical compliance with the law when needed to achieve a fair result. This is a very powerful grant of authority and must be used very sparingly otherwise it perpetuates abuse of the judicial system by both parties and their attorneys. For example, courts have made it routine to grant continuances in cases with little or no showing of need when someone merely alleges the same out of a desire to be fair to the requesting party. These requests for continuances many times are not truly needed but are requested for tactical reasons and serve only to drag out cases, increase legal fees, and further contribute to congestion in the court system.

            Many times judicial discretion can also lead to just the opposite of what was intended, i.e., an unfair result. As stated above, proper application of judicial discretion requires the court to have an extremely focused and accurate view of the facts and issues in the case. Should something preclude the court from properly applying its judicial discretion, such as the judge’s miss-perception of either the facts or law, insufficient time to spend on the case, or even the judge’s subjective own biases, or a combination of all of them in varying degrees, then judicial discretion will not have the effect it was intended. Regardless of the merits of a law, its importance in the legal system is that it provides a level of certainty of what will or will not happen to people when they go to court. Judicial discretion adds a level of uncertainty to the system and reduces its effectiveness as a method of resolving disputes.

            Most of the time there is no effective way to overcome a court’s misapplication of it's discretion. While a party is free to file an appeal, the minimum legal fees involved are realistically around $15,000 and it takes about a year to get a decision. Even worse, if you are appealing a financial decision you have to post a bond equal to150% of the amount of money in question. In a custody case, the parenting plan objected to will probably become the status quo for the child before you can get your appeal decided and then the result of the appeal will be moot because the child will have become comfortable with that arrangement. Even then, the court of appeal rarely disturbs a trial court’s exercise of discretion because it is presumed that it acted properly and the standard to overcome that presumption is very high.
            In conclusion, judicial discretion will not undermine the law and will yield “fair” results when properly applied. However, its proper exercise requires intelligent, fair minded judges who are not over-worked. The problem with this scenario is that the current state of the state budget is that there have been so many cuts to the funding of the court system that the same amount of judges are forced to hear more and more cases with less and less funding causing them and their staff to become tremendously overworked. In addition, the pay for judges has fallen out of sync with the private sector and few attorneys of notable achievement are willing to take a large pay cut to become judges. These conditions cause the public even more discontent with the court system as conditions get worse, e.g., perceived uneven application of the law, lack of predictability, and favoritism. These problems are even more reason why you need the best quality attorney available to help achieve you goals in a dissolution proceeding. A seasoned attorney will be familiar with the vagaries of judicial discretion.

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