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What to Do When the Court Gets ...

divorce and child custody

When going through your divorce or child custody case, you will either be assigned a Judge or Magistrate to preside over the proceedings. While some cases require very little Court presence (this is usually because both parties come to a settlement), other cases may require a heavy Court presence. These can be high-conflict cases – the cases where you are filing a lot of Motions, the other party is filing a lot of Motions, and the Court is needed to step in and make several rulings to keep the case going forward, or to enforce prior Orders.

Or, perhaps the case is somewhere in the middle – there are not a lot of Motions and allegations being thrown around, but you and the other party just cannot come to an agreement on how to divide and allocate marital property or what kind of parenting plan is best for your children. In such instances, you bring your disputes to the Court, make your arguments for what you think should happen, and let the Court decide the outcome.

When the Court gets involved, they do not always get things right. We can help.

Do Family Law Attorneys Prefer to Take Your Divorce or Custody Case to Court or Negotiate a Settlement?

Many attorneys prefer to settle your divorce or custody case rather than take it to court (as long as the other party is willing to work toward a reasonable agreement as well). This is because attorneys know that your having a say in deciding issues such as how your property is divided and how your kids are going to be spending time with both their parents is better than letting a stranger decide what your life is going to look like and what your relationship with your kids and their relationship with their parents is going to look like. Why? Because the Court can get it very, very wrong.

What Can Lead to the Court Getting Your Divorce or Custody Case Wrong?

Judges and Magistrates are imbued with broad discretionary power to decide the outcome of your case. However, that does not mean that they always make the correct ruling regarding their cases. Unfortunately, Judges and Magistrates can get divorce and custody cases wrong for a variety of reasons, including:

  • Only Human – Although held to high standards, Judges and Magistrates are people, with backgrounds, biases, personal problems, and issues of their own.
  • Overworked – Judges and Magistrates are also very tired, oftentimes presiding over hundreds of cases at one time.
  • Unfamiliar with Family Law – In addition, Judges and Magistrates often circulate benches. For example, they may preside over criminal cases for a couple of years and then switch to presiding over domestic (family law) cases for the next few years. This means that the Judge or Magistrate presiding over your divorce and/or custody case may know very little about the actual laws that embody family law and the standards they are supposed to consider when determining the outcome of your case and your life.

When the Court gets it wrong, the result can be that, even though you and your attorney may have put forward the best case possible and may have presented to the Court the strongest legal foundation for why your proposed outcome is the proper outcome under the laws of Colorado, the Court may very well decide against you. Sometimes, the Court will back up why it ruled against you (which it should and is supposed to do), and sometimes, it does not. The impact of such rulings can be devastating for you and your family.

What Should You Do If the Court Gets Your Divorce or Custody Case Wrong?

So, what can be done about it if the Court gets your divorce or custody case wrong? The answer to this depends on several factors:

  • Whether a Magistrate or Judge made the ruling
  • Whether the ruling was made pre-decree (was the first ever permanent ruling in your case with regard to divorce/custody) or post-decree (you already have permanent orders regarding divorce and/or custody in place and new litigation has arisen since then to, for example, modify those existing orders)
  • How far you want to, are willing to, and are able to go

Depending on the factors that led to the Court getting your divorce or custody case wrong, here is what you can do about it.

Pre-Decree Final Orders by Judge or Magistrate

If your case is a pre-decree case and you believe the Court got your divorce or custody case wrong, you can file an appeal. There are two different grounds for an appeal:

  1. Arguing the Court erroneously applied, or misapplied, the law – For example, an erroneous application of law could be something like this: in litigating your custody case, you and the other party cannot decide where your child should attend school – you want your child to attend School A when they are currently attending School B; the Court rules that, it will not rule that the child is to attend School A because no evidence was put forward that attending School B in any way endangers your child. This would be a misapplication of the law. Pursuant to Colorado law, the standard the Court is supposed to consider when making such a ruling is whether changing from School B to School A is in the child’s best interest, not whether the child is endangered by attending School B.
  2. Arguing the Court abused its discretion or clearly erred when making its findings of fact – An example of abuse of discretion or clear error with a Court’s finding of fact could look something like this: the Court outlined in its ruling that, because you live in Texas and your baby is too young to travel between states, Parent X in Colorado should have primary parenting time. However, you do not live in Texas; you live down the street from Parent X in Colorado, and you put forth evidence in your hearing regarding the same.

Both the above scenarios are examples of circumstances in which you would have grounds to appeal the Court’s ruling.

Post-Decree Final Orders by Judge or Magistrate

If a Judge issued the post-decree order, you can determine whether you have grounds for an appeal as you would if your case were a pre-decree case (as outlined in the previous section). However, if a Magistrate issued the post-decree order, you will be required to abide by a different set of procedures pursuant to the Colorado Rules for Magistrates (“CRM”) Rule 7.

If your case is a post-decree case that was presided over by a Magistrate and you believe the Magistrate got your divorce or custody case wrong, here are the grounds for filing a Petition for Review of Magistrate’s Order Pursuant to CRM Rule 7:

  1. Arguing the Magistrate’s findings of fact(s) is/are “clearly erroneous.”
  2. Arguing the magistrate misapplied the law.

Filing a Petition for Review of Magistrate’s Order Pursuant to CRM Rule 7 in a case presided over by a Magistrate can secure results similar to those you would get from filing an appeal in a case presided over by a Judge.

Motions for Post-Trial Relief

A less extensive, expensive, and time-consuming option than an appeal or a Petition for Review of Magistrate’s Order Pursuant to CRM Rule 7 may be a Motion for Post-Trial Relief Pursuant to the Colorado Rules of Procedure (CRCP) Rule 59 and/or Rule 60. Of note, a Rule 59/Rule 60 Motion may not be available to you if Magistrate issued your Order. Seek legal counsel to understand your options. These are Motions reviewed and ruled upon by the Judge or Magistrate who made the ruling you want to be reconsidered.

In a Motion Pursuant to CRCP Rule 59, you may move the Court for “post-trial relief”, including:

  • A new trial of all or part of the issues
  • Judgement notwithstanding the verdict
  • Amendment of findings
  • Amendment of judgement

In a Motion Pursuant to CRCP Rule 60, you may:

  • Ask the Court to correct a clerical mistake in its judgement, order, or other parts of the record.
  • Ask the Court to relieve you of its original judgement for the following reasons:
    • Mistake, inadvertence, surprise, or excusable neglect
    • Fraud, misrepresentation, or other misconduct of an adverse party
    • The judgement is void
    • The judgement has been satisfied, released, or discharged, or a prior judgement upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgement should have prospective application
    • Any other reason justifying relief from the operation of the judgement

These Motions require less extensive preparation than an appeal and are, as a result, less expensive. However, if you want to make sure that the order you are seeking relief from is being reviewed by a different judicial official than the one who made the order, then a CRCP Rule 59 or 60 Motion is not your best option.

Keep in mind, Petitions for Review of Magistrate’s Order Pursuant to CRM Rule 7 can be pretty expensive, an appeal is even more so. However, depending on the issue, a Rule 7 may be your only option for review of a Magistrate’s decision, absent a clerical error. It comes down to what you are willing and able to do to achieve legal relief if/when the Court gets it wrong.

Schedule a Confidential Consultation with Our Centennial Divorce and Child Custody Attorneys Today

If you feel the Court got it wrong in your case, we here at Solutions Based Family Law are available to discuss your best options, provide you with next steps according to the facts and circumstances of your case, and step in as your representation to fight for you and help you achieve your goals. We have members of our firm who specialize in appeals, petitions for review, and motions for post-trial relief, and we are available to help you figure out what to do when the Court gets it wrong.

Call us at (720) 463-2232 or contact us online to schedule a consult with one of our family law attorneys so that we may help you set the record straight and/or achieve relief from an improper judgement.