Fighting Birmingham Child Custody Case Without Attorney is Unwise

Posted by Steven D. Eversole | Jan 06, 2014 | 0 Comments

The recent recession not only resulted in a sharp decline in divorce filings, it also gave rise to a practice of filing for divorce and other family law matters pro se, or without an attorney. 

Statueofwisdom

While our Birmingham child custody attorneysunderstand finances are still tight for many people, this tactic makes little practical sense because lack of a legal advocate in court generally will end up costing you much more in the long run. It could result in your receipt of child support payments that are lesser than what you deserve. It could result in the loss of property you may have otherwise been allowed to keep. It may result in an unfairly high spousal support payments.

Except in certain cases of abuse, it's almost always better in matters of family law to wait and save up for an attorney rather than make the mistake of going it alone.

The family law case of Brush v. Davis, recently reviewed by the Supreme Court of Wyoming, reveals what can happen when one – or both – sides choose to go sans-lawyer.

Here, the decision of both parties to avoid the counsel of a family law attorney resulted in numerous clerical errors and unnecessary delays that taxed the resources and patience of the court. It also gave rise to claims of violation of due process rights, and left one party dejectedly without custody of a minor child.

According to court documents, the two in this case divorced back in 2005. At the time, the mother was granted custody of the pair's two children. One of those children had aged out of the system when the father approached the court in 2012, requesting a modification of custody and time-sharing of the minor child.

Acting without an attorney, the father filed his own petition, rejecting even the use of the family law  pro se forms provided by the state's supreme court. This petition contained numerous errors. For example, it purported to contain a copy of the original divorce decree, when in fact, it did not. In an attached affidavit, he noted the mother had been served a copy of the document on a certain date. Not only did he mislabel the type of document he had supplied, it was improperly dated as well.

However, the mother did receive a copy of his paperwork and did not respond to it. So the district court entered a default against her. This meant that in future hearings, she could cross-examine his witnesses and challenge his evidence, but she could not bring any of her own.

What the mother didn't know – because she didn't have a lawyer to tell her – was that such orders are routinely reversed in family court, simply by request. She would have had an even stronger case than most, given the clerical errors made by her ex.

However, the hearing went on as planned. Ultimately, the father was awarded custody of the minor child and the mother was ordered to pay $340 monthly in child support.

The mother appealed the ruling, arguing in part that her due process rights were violated because she was not allowed to bring her own witnesses. However, the state supreme court ultimately ruled there was nothing improper about the family court's ruling, and she had ample time prior to the hearing to challenge the default against her.

The mother also tried to challenge the child support decree, but the court weighed heavily on the fact that she failed to provide any financial documentation, as had been requested. Such an oversight could have been prevented had she secured the services of an experienced family law attorney early on in the process.

If you are seeking a child custody modification Birmingham, contact Family Law Attorney Steven Eversole at (866) 831-5292.

Additional Resources:

Brush v. Davis, Dec. 27, 2013, Wyoming Supreme Court

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

We serve the following localities:

Birmingham, Jefferson County including Bessemer, Homewood, Hoover, Irondale, Leeds, Mountain Brook, Trussville, and Vestavia Hills, Shelby County (including Pelham, Alabaster, Chelsea, Calera), Tuscaloosa, Auburn, Huntsville, Calhoun County including Anniston, Etowah County including Boaz and Gadsden, Cullman County including Arab and Cullman, Madison County including Huntsville and Madison, Montgomery County including Montgomery, and all of Alabama.

Menu