After your initial filings and while you are conducting your discovery and disclosures, you will be set for prehearing conferences.
Prehearing conferences, for the purposes of this section, are any court ordered judicial or quasi-judicial Proceedings before your final evidentiary hearing or trial.
Their purpose is to determine the outstanding issues, lock in any settlements, and determine what, if any, assistance the court or the parties need in order to either reach an agreement or have a trial on the merits of the case.
Prehearing conferences set the tone for the case and determine many of the resources that will be used. We will also discuss any of the court-appointed advisers, or other court appointed experts that may be used in any given case.
Prehearing conferences consist of:
- Resolution management conferences
- Early resolution conferences
- Return hearings
- Status conferences
- Open negotiations
- Temporary orders hearings
Resolution management conference
A resolution management conference, or RMC, is set by the court in virtually every initial case. The RMC is a non-evidentiary hearing, which means that the judge should not look at exhibits or hear testimony, nor should they make rulings on any issues. This takes place in the judge’s assigned courtroom. At the RMC, you and the opposing party will go before you’re assigned Judge and present your positions on all of the outstanding issues. You will file an RMC statement before the scheduled RMC and provide a copy to the opposing party. This statement is to be completed without argument and without emotion if possible. With that being said this is your first Time in front of the judge and you will want to make a good first impression. Your RMC statement might say something like:
“Legal Decision Making: Mother should be awarded sole legal decision-making because Father has been convicted of selling narcotics and domestic violence including the assault.”
You should add enough to back up your position, but nothing more and without a graphic description.
The RMC will be set for 30 minutes in front of your assigned judge. The judge will have read both of your RMC statements and will likely state whether or not there are issues that you both agree upon. For instance if both parties have stated that they would like joint legal decision-making, the judge will most likely ask the two of you to stand, raise your right hand, and put your agreement on the record. When you do this you are entering a “rule 69 agreement.” It is binding and issue will never come up again. It is also possible that the two of you will enter into temporary agreements. That could be a temporary agreement that Father will continue to pay the mortgage and the car payment and Mother will continue to pay all of the utilities and the cell phone.
If there are no agreements to be reached the judge will either:
1) Set a final evidentiary hearing date.
2) Send the parties to a parenting conference or mediation.
3) Apoint a third party to offer the court evidence on a specific outstanding issue.
If you would like the intervention of a third party, because you are asking for drug testing or a psychological evaluation, the RMC statement is a great place to make the judge aware of your request. The judge may order what you’re asking for or may request that you file a motion asking the court for ruling on your request.
Sometimes judges set and RMC on temporary orders. This is very confusing. It means that the judgment may or may not take evidence on any temporary orders request and may or may not enter orders regarding temporary issues. Sometimes a judge will have an RMC on temporary orders only to set a temporary orders hearing at a later date. If this happens, call the JA, or judicial assistant, and see if you can find out whether or not the judge would like to take evidence at the RMC. If you cannot find out in advance, be prepared for either possibility.
Early resolution conference (ERC)
An early resolution conference maybe set instead of, or in addition to, an RMC. An early resolution conference is only set if one or both parties are unrepresented buy attorneys. It will not be scheduled if two attorneys are on the case.
The ERC takes place at the courthouse but not in a court room. It is scheduled for three hours and is facilitated by a mediator, not a judge. The mediator cannot make rulings, even if they want to. Temporary orders for final agreements will only be locked down if both parties agree. If you have been scheduled for an ERC, consider bringing an attorney with you. The combination of a law trained mediator and an attorney has been very successful in the past walking down favorable agreements.
Unlike an RMC, where you do not need to bring or present evidence, you will want to bring all of your evidence to the ERC. If you can show the other party and the mediator the extent of your assets, income, and debts, it becomes much easier to persuade the opposing party to agree to your position.
If you do come to agreements, the mediator will draft those agreements, get each of your signatures, and take the agreement to a judge to be signed that day. It is possible to complete your entire case at the ERC.
A status conference is usually set by the judge at the RMC to take place following a certain event. For instance, if the judge sends two parents to mediation on a certain date, it isn’t unusual for the judge to set a status conference for the following week. I judge may avoid scheduling A final evidentiary hearing until after both a mediation and a status conference have taken place. A status conference can either be telephonic or in person, and is usually set for 15 minutes. The purpose is simply to update the court on any progress that has been made or changes that have taken place and to decide the next step.
Another prehearing conference that you may come across is a return hearing. A return hearing is sometimes set instead of an RMC in a post-decree, or modification case. There is no need to file any documents prior to the return hearing, although you may want to prepare some notes for yourself. The return hearing is a hybrid between the RMC and the status conference. It is not quite as informal as a status conference, nor is it as formal as an RMC. It usually takes place in a courtroom and is not typically conducted telephonically.
Opening negotiations are a new type of prehearing conference that takes place instead of the RMC. Attorneys are not allowed to attend open negotiations, where a Judge may ask questions of both parties to tease out positions and try to guide the parties to some agreements. If the Open Negotiation is unsuccessful, the Judge will simply proceed with the case as he/she would following an RMC.
Temporary Orders Hearings
Temporary orders hearings are only set if one of the parties files a motion for temporary orders. Even then, a hearing may not be set until after an RMC. It can take anywhere from 30 to 90 days to get in front of the judge for a temporary orders hearing. This hearing is unlike the others that we have discussed, because it is an evidentiary area hearing. That means the judge will take testimony, exhibits, and make rulings on the outstanding temporary issues.
To prepare for a temporary orders hearing, you need to gather evidence that supports your position and prepare your testimony. This topic is covered more in the last chapter and in the chapter on preparing for trial.
A temporary orders hearing is usually scheduled for 30 minutes or 60 minutes so there is rarely time for any additional witnesses. The petitioner will present evidence first. The respondent will have the ability to cross-examine any witnesses called by the petitioner. Then the respondent will present their own case, and the petitioner we’ll cross-examine any witnesses called by the respondent. Sometimes the judge will rule “from the bench,” which means the Judge will deliver the verdict immediately and orally. More common however, is that the Judge will take the matter “under advisement.” This means the ruling will be issued within 30 days in writing in what is called a minute entry.
A temporary order will give you an idea of how the judge is leaning on any given issue. It can be a trial run and could make you better prepared for a final evidentiary area hearing.
Court appointed intervention after the initial filing but before the final evidentiary hearing could include:
- Parenting conferences
- A psychological evaluation
- A comprehensive family evaluation/ assessment
- For a limited family evaluation/Assessment
- Reunification therapy
- Court appointed adviser
A Parenting conference is frequently scheduled when you have two good parents who don’t agree on a parenting plan four there are concerns regarding parental fitness or addiction issues. Typically the judge will order the parents to attend a parent conference at RMC. You will receive an order identifying the parenting conference provider and you will have 10 days in order to contact the provider and arrange the first appointment. The parenting conference costs each party $300. The parent conference provider will review any collateral information that you have about the other party like emails, police reports, CPS reports, etc. The provider may even speak with third party witnesses.
A meeting is then scheduled for the parents, and the children if they are old enough, to speak with the provider. The conference provider acts like a cross between a mediator and an expert witness. The meeting is non-confidential and the provider will create a report for the court’s review. The Parents are encouraged to come to agreements, which are written down by the provider and treated like a Rule 69 agreement. For many children, this is their opportunity to be heard on any opinions regarding what living arrangement they would like.
After the provider has reviewed the information, spoken with witnesses, and met with the parties and children, they will provide a written report to the parties and court. This can take up to 60 days. The report can contain any concerns they have about either parent or the children. Sometimes the provider will point out an initiative the parents aren’t even thinking about like a child’s eating habits, or school attendance issues. Sometimes the parenting conference provider will recommend a psychological evaluation for either mother or father, or they may recommend alcohol or drug testing.
The judge will certainly read the report and rely on information within it. Probably 75% of the time judges adopt the recommendations and findings of the parenting conference provider. With that being said, you can use the reports to craft a settlement agreement or change your strategy moving forward in court.
Comprehensive Family assessment/ comprehensive evaluation
A Comprehensive family assessment or a comprehensive evaluation can be ordered for many different reasons. Most often when a Judge suspects domestic violence, substance abuse, serious mental illness, or child abuse; or when the issues are so complex that the judge simply needs much more information.
Comprehensive evaluation usually lasts between two and six months and is very expensive, sometimes costing up to $10,000. The evaluations are conducted by a psychologist or psychologist that has been qualified and approved and Can be found on the Maricopa county court roster. On the roster you will find providers locations, prices and credentials.
Comprehensive assessment usually include mental health testing for both parties. It may also include diagnoses. There is typically a in-depth analysis of all allegations made.
The results of these assessments are provided to the parties, attorneys if they have them, and to judges. They can be between 20 and 60 pages. One interesting thing to note, is that the recommendation in the evaluation may not be legally sound, since the providers are not typically attorneys. If you received the results of an evaluation and you think they are wrong, consider consulting with an attorney in order to find out the legal basis for the recommendations.