When the Hearing Doesn’t Go Your Way

The hope in your divorce, contempt or modification action is that every hearing will get you several steps closer to your end goals. But what can you do when the judge is persuaded by opposing counsel’s argument and rules against you?

She’s not persuaded.

I encourage my clients to think of their parenting or divorce goals as a long game when a hearing goes badly. There will be some hearings that don’t go your way. The judge may not – will not – see everything as you see it, and will never know everything that you know about your family. That means that there is always a risk that he or she may make orders or judgements that do not make sense in your family and do not serve your family’s best interests. Buckle down and start preparing for the next hearing. Consider settling your case if you have not considered that up until this point. Take stock of your new options with your attorney, and keep moving forward.

I find that it is very useful to view the situation as constantly evolving. I have seen parents with restraining orders between them become cordial through the course of a case, with the assistance of their attorneys’ negotiation skills and coaching. The truth is, we do not know what the future will bring, what the judge will decide at the next hearing, or how the family dynamics will change over the next year, five years, or ten years. Even very strained co-parenting relationships can evolve.

The other paradigm that I find useful is to look at the judge’s orders as instructions that help you to stretch yourself. Give the orders a chance; adopt a growth mindset towards your ability to navigate these orders. Comply with them, be cordial, take it on the chin, and see what happens. This is particularly important if you are the defendant in a contempt action. Make it your mission to comply with the orders and then some. The changes that you need to make in order to comply with the judgement or orders may reduce the tension that led to the litigation in the first place. On the other hand, if the orders don’t work, that will become clear over time. It may make sense to file a motion or modification down the road. You can do that. When it comes to issues relating to children under eighteen, a further modification action is always possible.

Most of all, don’t take it personally. The orders may feel unfair, and they may in fact be. Judges are people too, and family law often walks the line between applying legal standards and just making a judgement call as a neutral third party. It isn’t possible for the judge to get as intimate a picture of your family as you have in the five or ten minutes you will have to advocate for your interests. All the judge has is a small snapshot provided by the written pleadings and a few minutes speaking with both attorneys. This is not to say that the oral and written advocacy provided by your attorney is not important; it is. A skilled attorney helps to focus the case, push it forward, and make your story clear to the judge in the short time you have. Nevertheless, once an order is entered, it is there and your family must exist in the new paradigm.

Here is a caveat, however: if there are critical safety issues that the judge gets wrong and you feel that the new orders risk irreparable harm to you or your family, explore appealing the order with your attorney.

As always, if you need help, give us a call.

About the Author:  Elizabeth Dann, Esq. is a family law attorney practicing in Natick, Massachusetts. She is a divorced, single mother of three children who loves soy cappuccinos, Zumba, plant-based food, and karaoke.

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