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How To Read and Understand Judicial

Orders Affecting Children

Adam Miller, Esq.Benesch, Friedlander, Coplan & Aronoff

LLPacmiller@beneschlaw.com

614.223.9315

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.

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.

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!

Why Are Orders Made Affecting Children?

• Juvenile Court invokes jurisdiction due to abuse, neglect, dependency allegations

• Child engages criminal conduct

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.

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

• 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%).

Family Court Cases Proceed in Stages

• Stage I: Interim Order/Entry

• aka "Temp. Order" for child support, custody, health care, visitation, etc.

Family Court Cases Proceed in Stages

• Stage II: Mediation/Pre-trial

• Temp order can change now that court has heard some additional evidence.

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.

Family Court Cases Proceed in Stages

• Stage III. Final Case Disposition. • Expressed as "Decree of __________“

• "Final Judgment of ______________"

"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.

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.

Who Issues the Order?

• Magistrate, (30 day appeal)• Judge, (30 day appeal)• Appeals Court (3 members)• Municipal, Probate, Juvenile, Common

Pleas.• Ohio Supreme Court

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.

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.

How?

• Use Electronic or Paper Tickler File.

• Calendar "Appointment" to remind for review.

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.

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.

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.

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.

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!

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.

Advanced Topics

• Grandparent Affidavits, Power of Attorney, Letters of Instruction.

• Technically not an order, but can function as if an Order.

Cleveland | Columbus | Philadelphia | Shanghai | Wilmington

www.beneschlaw.com

Specific question not addressed above? Call and ask me!

Adam Milleracmiller@beneschlaw.com614.223.9312

Bensch, Friedlander, Coplan & Aronoff, LLP

41 South High StreetSuite 2600Columbus, OH 43215

614.223.9300614.223.9330 (fax)http://www.beneschlaw.com