LEGAL GUIDE
Written by attorney Peter Christopher Lomtevas | Nov 10, 2010

The Oral Motion Fraud in Family Court

A nefarious act plays out in family court all across the country. All states require written pleadings to get a judgment and written motions to get an order. However, in family court, these written applications for legal relief in the form of “orders" produce a paper trail that can be audited by authorities and provide valuable advance notice of requests by the opponent. So family courts have done away with formal motions as a practical matter and are now engaging in verbal motions. For example, a custody dispute where the mother abandoned her children starts by the mother appearing in court and alleging that the father stole the children from her. As the case progresses, she appears in court with an attorney. On one appearance before the court, the attorney informs the court that the father never provided the mother with the children’s birth certificates, health insurance cards and social security cards. This may be false, but the court enters an order that the father must provide forthwith the two cards and the birth certificates. This is an example of the nefarious act: the soiling of the opposition by ad hoc demands made before the court without a written request and granted summarily whether there was a hearing on the issue or not. Another example using a different case is the cutting of hair. The custodial mother alleges in court that the father cut the hair of the daughter. Nowhere in any custodial law anywhere in this country is there a prohibition against the grooming of the daughter by her father. Nevertheless, the intent is to soil the father’s integrity before the court and get an order imposing a grooming limitation upon the father in the form of an order. A violation of such an order will cause a finding of contempt against the father further soiling the father’s integrity before the court. A another example is the use of federal law. In yet another scenario, the custodial mother obtained an order of protection against the father, her current husband. She comes to court on a custodial petition brought by the father and alleges that certain spread sheets he emailed to her was harassing. These spread sheets may contain the family’s financial data (the couple is still married) but if the mother could use the sheets as proof of harassment in order to violate the father, she will. Such a violation will negate any chance he may have for custody – even though the mother may be diagnosed with a serious mental health condition which the case has not yet revealed because of the federal law (in this case VAWA). A second example arising out of federal law is child protection allegations. In this scenario, a non-custodial mother’s attempt at custody is thwarted at the outset when an unqualified social worker appears in court and carries on a discourse with the judge as to how dangerous the mother appears and how the kids should be evaluated for placement in foster care. The judge grants the oral motion and the mother’s custody case goes out the window. In all of these cases, government provided attorneys may be assigned to represent a parent who is unable to pay to carry on litigation. The strategy of the oral motion allows a free lawyer to protract an appearance for at least one hour by offering bogus arguments about how a spread sheet gave rise to a violation of an order of protection or how the cutting of a girl’s hair is outside the custodial parameters for a father. Judges sign off on these lawyers' pay vouchers. Hence, not only is a paper trail of a case not produced for placement into the court’s file, but taxpayers can be ripped off via the time it takes to offer up a bogus argument and for the judge to respond to it. The only way to obtain a record of the oral motions is to order the transcript of the individual appearances which costs $5 per page in most jurisdictions. Defending this is difficult. You may have to object that the assigned counsel is testifying as a witness. Another objection is a violation of the state’s rules requiring motions be in writing. Judges should not be signing off on free counsel vouchers. However, if you get hit with an order from one of these colloquies, an appeal will be fruitless because of the universal deference to family courts and their rulings and the risk is contempt which will adversely impact upon your overall petition before the court. The danger with this practice is that eventually, state superior and federal courts will begin entertaining oral motions for all issues and justice will be buried in the transcripts.

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