Mar 3 2017

Importance of Understanding the New Idaho Rules of Family Law Procedure

All court proceedings are normally governed by a set of rules.  For example, there are Rules of Civil Procedure, Rules of Criminal procedure etc.  Prior to January 1, 2013, there were no separate rules governing family law procedure and such matters were generally governed by the rules of civil procedure.  However, given that the Idaho Rules of Family Law Procedure (IRFLP) are now effective statewide, it is extremely important for anyone handling family law cases to thoroughly understand these rules and how these rules work.

The Idaho Rules of Family Law Procedure (IRFLP) first started in the 4th Judicial District of Idaho as a pilot project, effective January 1, 2013. The IRFLP have been effective statewide since July 1, 2015 and are applicable in all cases involving divorce, legal separation, child support, child custody, paternity, all proceedings pursuant to the Domestic Violence Crime Prevention Act, all actions pursuant to the De Facto Custodian Act, and all proceedings, judgments or decrees related to the establishment, modification, or enforcement of orders in such action, except contempt.

Here are some noteworthy differences between the practices in a family law court before and after the adoption of the new rules:

Under the new Rule 401, the parties must make mandatory disclosures of specific information within 35 days after a responsive pleading is filed.  These mandatory disclosures must be made even if there are no requests for disclosure.  However, parties may stipulate to an extension of the deadline (stipulation is where both parties agree), or one party may petition the court by filing a motion for an extension of time to comply with the Rule 401.

The new Rule 504 anticipates the court deciding temporary orders based exclusively on affidavits rather than having lengthy hearings with testimony by the parties and witnesses.  This reliance on affidavits alone makes it extremely important to prepare detailed affidavits containing relevant information supporting the motion for temporary orders.  However, at the time of the hearing on the motion for temporary orders, the judge may decide to set a separate evidentiary hearing so that the parties are allowed to present testimony and call witnesses at an evidentiary hearing.  This is often the case where the issues are complex and the judge may have additional concerns for the health or safety of the children.

The new Rule 102.B, is designed to ‘simplify’ the formal and very technical rules of evidence that ordinarily apply in court proceedings.  However, the rule allows either party to request a strict compliance with the Idaho Rules of Evidence within 30 days after a responsive pleading is filed or within 42 days from the filing of the motion or petition in cases where no responsive pleading is filed, or such date as is established by the judge.  Experienced attorneys frequently request strict compliance with the Idaho Rules of Evidence making it much more difficult for people representing themselves to effectively present evidence in court given the technical nature of the application of the formal Idaho Rules of Evidence.

Idaho Rules of Family Law Procedure are often misunderstood by the pro se litigants (people representing themselves without an attorney). Many people do not know that the Rules of Family Procedure even exist or where to search for these rules (See link to Idaho Rules of Family Law Procedure).  People representing themselves without an attorney will be held by a judge to the same standard of expertise as attorneys and are frequently confounded by these rules.

(Idaho Rules of Family Law Procedure)

Feb 17 2017

Difference Between No Contact Orders and Civil Protection Orders Issued by Idaho Courts.

I am frequently asked questions about civil protection orders and no contact orders issued by Idaho courts.  Some people call these ‘restraining orders’. It has been my experience that a lot of people confuse the two and are consequently severely confused about the situation that they are facing.  Some of the confusion stems from the fact that both typically originate from domestic violence, stalking, or harassment allegations, and they both have the affect of prohibiting contact between the parties involved.   This blog primarily focuses on comparing civil protection orders and no contact orders to correct some common misconceptions.  For a more a detailed discussion of each please refer to my blogs dealing separately with the no contact orders and the civil protection orders.

First, I want to make it clear that civil protection orders are different from no contact orders.  Civil protection orders and no contact orders have similar goals – to alleviate the danger of violence, harassment and intimidation and to deter criminal behavior.  However, the two are very different.  If a no contact order is issued, it is always issued as a part of a pending criminal case and is issued under the same case number as the criminal case.  Typically, in a case involving the allegations of domestic violence, assault or battery, the prosecutor will request that the judge issues a no contact order preventing the defendant from contacting or approaching the alleged victim of the crime and the alleged victim’s place of residence.  At that time the judge will hear the arguments from the prosecutor and the defense counsel and decide whether to issue a no contact order and what protections are appropriate given the allegations and the arguments made by each party.

Civil protection orders are issued by Idaho courts upon sworn application by the person seeking a civil protection order (Petitioner).  The prosecutor is not involved in obtaining a civil protection order – if you want a civil protection order you will have to obtain it yourself or hire an attorney to assist you in the process. There is no need for a criminal case to exist before a civil protection order can be obtained.  The person seeking a civil protection order must sign a sworn petition for a protection order, alleging the conduct on the part of the person that they seek protection from (Respondent).  If the petition contains sufficient allegations, a temporary ex parte order is expeditiously granted without a hearing on the merits of the allegations.  A hearing on the matter is set within 14 days from filing of the petition.  At that hearing the parties will present their case to the judge who will decide whether to grant the protections sought by the Petitioner.

Oct 10 2012

Welcome to our new blog!

We are starting a new blog today to help answer questions related to family law and immigration. Please visit us again to see what is in store.