Helping Pro se Litigants Better Represent Themselves in Family Court
Last Saturday, Gregory Forman and I taught a seminar, hosted by Charleston Pro Bono Legal Services, aimed at helping Pro se litigants better represent themselves in the Family Court. One of my inspirations for volunteering to help organize and speak at this seminar was a former client. She came to me after representing herself in a contested custody dispute for more than 2 years. The following synopsis of her struggles to navigate the Family Court’s procedural landmines is published with her express written permission.
The litigation was commenced after my client lost her long-time job, and was working in a temporary 2nd-shift position. She did not have financial support from family. It was a challenge for her to pay routine monthly expenses. When she was served with pleadings from her daughter’s father seeking custody, she didn’t have the means to hire an attorney. One of the allegations against her was that her new work schedule was grounds to change custody, so getting another job, or working over-time didn’t seem like a helpful option. Believe me, she would have quickly hired a lawyer, if there was any way possible.
Within 30 days of the case being filed, she was required to file an Answer and Counterclaim, appear at a Temporary Hearing against the other parties’ very seasoned attorney, and pay a sizable retainer to the Guardian ad Litem (GAL). It was only a month into the case, but already it felt like the deck was stacked against her. After paying the GAL, she had even less cash on hand to pay a retainer to an attorney, and was left trying to navigate the Family Court’s procedural landmine on her own.
For months, she treaded water, and ultimately agreed, at mediation, to share custody, partially motivated by the realities of proceeding to trial as a pro se litigant. I have reviewed that case at length, and strongly believe, if I was representing her at that time, we would have most likely prevailed at trial. She knew the allegations against her were unsubstantiated, but she couldn’t afford to hire a lawyer, and didn’t know how to adequately prepare and present her own case at trial.
At one time or another, both the Guardian ad Litem and Mediator filed Rules to Show Cause against her for not paying their fees, for which she faced going to jail, if she didn’t find a way to get them paid. They were right to do so, and I would have done the same if I was in their shoes. It does, however, illustrate that the financial means to hire an attorney was far out of her reach.
It doesn’t take long after a case is filed before inherent and unavoidable litigation expenses begin to add up. Often, only a month into a case, a litigant that couldn’t initially afford an attorney, has already spent what little funds they had or could borrow paying these expenses, and is left with no choice but to proceed pro se. There’s also the additional cruel reality that the longer a case is pending, the more any lawyer, including myself, will likely charge for the initial retainer. This is because more work will be required in a shorter time frame.
The still-new “365-Rule” requiring all Family Court actions to be disposed of within 1 year of filing is also disadvantageous to lower income litigants. Let’s say a low-end child custody case would cost $20,000 to try. It is much easier for someone who earns $30,000 or less annually to stretch those expenses over an 18 or 24-month time period than a 12-month time period. Under the rules, as they now exist, it is not possible.
It was only a few months after reaching an agreement at mediation and concluding her case, that my client was served with another action by the father, again, seeking custody It was essentially a repeat of the last case, and was premised on vague unsubstantiated allegations. If I had been involved from the beginning, I firmly believe, I could have ended it right out of the gate based on father’s failure to demonstrate a substantial change of circumstances.
But, again, on the heels of the last case, my client still lacked the funds to hire a lawyer. And, again, within 30 days she had to file an Answer and Counterclaim, appear at a Temporary Hearing against the same experienced opposing attorney, and pay yet another Guardian ad Litem. As an aside, it was a savvy maneuver to get a different GAL appointed this time around, one which would not have passed the muster test had I been involved, but pro selitigants are scared and not aware of their procedural rights.
The second case was administratively dismissed pursuant to the Court’s 365- Day Rule. My Client was unaware of this Rule, and certainly did not know she could request a trial herself, instead of allowing the father to control the advancement of their case.
Within 4-6 weeks of the case being dismissed, father filed a third case. And, again, my client had no choice but to represent herself at a Temporary Hearing. This time, however, she had learned her way around the Family Court system, and presented her case in such a way that she obtained a favorable result.
Only a few weeks later, father filed a motion to go back to court, in an effort to undo the favorable result my client obtained at the Temporary Hearing. By this time, my client accepted the deck is stacked against pro se litigants in Family Court. Also, more than 2-years had passed since the litigation began, and she had returned to more gainful employment. She was also engaged to a man who respected the importance of fighting for her daughter enough to help her hire an attorney.
She came to me discouraged but determined. She hired me and we embarked on what will surely be one of the hardest cases of my career. I am still fighting ancillary court battles to this day. My client, and her now-husband, spent a small fortune on legal fees, even with me devoting many pro bono hours to her case. In the end, we achieved a positive result.
The Clerks of Court have commented to me how impressed they always were with her ability to properly file pleadings, and navigate the procedural requirements of Family Court. She was undoubtedly heads and tails above most pro se Family Law litigants. Nonetheless, she was in over her head from the beginning. It was a hard case for me, and an insurmountable one for her. If she could have afforded an attorney sooner, believe me, she would have hired one.
The tragic reality is that sometimes people just can’t afford a lawyer, and lawyers can’t always work for free. The seminar, hosted by Charleston Pro Bono Legal Services, which Mr. Forman and I volunteered to speak at is intended to educate litigants as to the procedural requirements of Family Court from initial filing of the pleadings through trial. There is no substitute for hiring an attorney who is well-versed in the law. However, for those litigants who absolutely just don’t have the financial means to hire an attorney, a lesson in Family Court Procedure 101, will at least begin to level the playing field.
Recently, my former client and her daughter were able to spend a week at Disney World. For my client, and I believe her daughter, it was truly a dream come true. Their story inspires me to volunteer my time, when I can, for the public good.