Get it on the record: Be sure to challenge sidebars and private conferences.

Posted July 14th, 2016.

Categories: Custody Tips, Family Law.

on the record mark guralnick

Family courts have good reason for dealing with issues informally from time to time. Family matters, after all, require a human touch. Sensitive issues, involving parents and children, may require some human “massaging” in ways that the formal rules of procedure and rules of evidence cannot always accomplish.

Beware! Some family courts tend to break the rules of procedure so routinely as to morph into informal meeting places for lawyers and judges to simply “talk things out” amongst themselves. If things don’t go your way in one of these kinds of courts, you won’t have much luck explaining what happened to an appeals court.

The best policy is to get everything on the record — at least, everything that’s important. When a judge says, “let’s go off the record,” don’t be afraid to ask to go back on the record if you want the court reporter or courtroom recording devices to capture what you’re going to say. Be wary of too many off-the-record sidebars in which the lawyers privately confer with the judge at the side of the bench. And watch out for judges who spend inordinate amounts of times chatting with lawyers “in chambers” before or after they go into the courtroom for the formal custody proceeding.

If you ever wish to appeal a decision, the appeals court will require you to produce a transcript of the courtroom proceedings. You can purchase this transcript from the court reporter or recording service. But if the important matters were “off the record” because they occurred in sidebar or in chambers, you’ll have difficulty proving your points to the higher court on your appeal.

Similarly, if your case returns to court after a few years off, and you find yourself before a different judge, an incomplete record won’t help you explain the background to the new judge. So, don’t be shy, and make sure your lawyer is conscientious too: Keep the important aspects of your case “on the record.”

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