Tuesday, April 15, 2014

Children and Parent Relationship in Divorce

While most parents try to shelter their children from the conflict, some parents use poor judgement. These misguided parents talk to the children about the details of the case or share court room documents with them. If this behavior is brought to their attention, judges will usually enter restraining orders restricting either parent from revealing any details to the children. If your spouse is talking to the children about the case or talking negatively about you, speak with your attorney about your options. It might be a good idea to seek court-ordered counseling for the children to try to encounter your spouse's negative behavior.

Parents who share information with the children under the pretense, "I am not going to lie to my children," are fooling themselves, if not being outright dishonest. There is a difference between lying to the children and being discreet for the sake of their emotional welfare. White lies that protect the children are acceptable and good common sense.

Parents who use their children as confidants also hurt the children. Even though everyone needs a friend and confidante during a difficult period in his or her life, don't make your child that person. You don't help your children by placing them in that role. During a period when there is much upheaval for children, they need the guidance and protection of a parent who knows when to say no. And is is much harder to say no to a friend. Don't give up your parenting responsibilities during this difficult time. 

Even if your spouse has mistreated you, it is rare that the disclosure of the mistreatment will in any way benefit the children. The children need a relationship with both of you. They need the security of knowing that it is okay to love both of you. When you rage to the children about your spouse, this will inhibit the children from expressing their love for the other parent. Put your feelings aside for the best interest of your children. 

Except from, "Divorce in Illinois, The Legal Process, Your Rights, and What to Expect" written by Steven N. Peskind.

Tuesday, April 8, 2014

If you are considering appealing a family law case.....

Appellate planning starts in the trial court.

All good trial lawyers are conscious of “preserving the record” in the event of an appeal. It is vital to have a court reporter at trial in order to do this. A court reporter’s job is to record the proceedings, including all of the witness testimony and the comments by the attorney’s and the judge. In the event an appeal becomes necessary, the court reporter prepares a transcript, which is given to the appellate court as part of the appeal. The appellate judges review the transcript as part of their consideration of the appeal. Without a transcript, it is much more difficult for the appellate judges to determine errors in the trial court. Since the person appealing needs to convince the appellate judges of an error in the trial court, the absence of a transcript can be fatal to the appeal.

Certain issues need to be raised in the trial court or they are waived on appeal. This means that if an issue is not raised at trial, one cannot raise the issue for the first time on appeal. For example, if the issue at the hearing only involved the question of the modification of maintenance, one cannot complain on appeal of a child support issue.

Also, trial court mistakes must be brought to the attention of the trial judge or they are waived on appeal. For example, if the judge considers improper evidence, and no objection is made at the time of the trial, the impropriety cannot be raised for the first time on appeal. It is vital that all errors be properly preserved in order to raise the issue in the appellate court.

Appeals are very time sensitive. One only has a limited amount of time after the entry of a final order to file the appeal. In the event an appeal is considered, action will need to be taken right away in order to meet the strict time requirements.

Appellate law is very complicated and success often depends upon good planning.

The Peskind Law Firm has substantial experience at both the trial and appellate court. Mr. Peskind is available to consult concerning appellate planning in the trial court and all other matters related to an appeal. If you are considering an appeal, Mr. Peskind will evaluate the appeal and explore opportunities for a successful result. Contact him at steven@peskindlaw.com or call the Peskind Law Firm at 630-444-0701.

Monday, April 7, 2014

What is an appeal?

At the conclusion of any family law trial, the trial judge court will make a ruling. If the ruling is considered a final ruling, either party may file an appeal. An appeal does not mean that you get to try your case over with a different judge; rather an appeal involves taking your case to an entirely different court, who will review the trial judge’s ruling. The appellate will determine if the trial judge made a mistake, and if so, it will reverse the ruling. If the appellate court does not believe an error was made, it will affirm the ruling. A ruling by the appellate court can then be reviewed by the Supreme Court, but only if the Supreme Court permits the matter to be reviewed.

The procedure for an appeal involves asking the clerk of the court to prepare the trial court record and then submitting a written argument to the appellate court outlining all of challenges to the ruling.  The trial court record includes: the court file with all pleadings and trial court orders, all of the exhibits submitted at the trial and the transcript of the testimony at the trial. The written argument, known as a “brief,” summarizes the facts of the case and presents legal arguments supporting a reversal of the trial judge.

Once the appeal is filed, the appellate court assigns the case to a panel of three appellate judges who will review the case and determine if the trial court acted properly and consistent with the law. Sometimes the appellate court will request “oral arguments.” If an oral argument is ordered, the attorneys appear at the appellate court and argue the case before the panel of judges.

Preparing an appeal is very involved. The procedures are complicated and the rules differ greatly from those rules in the trial court. An attorney who comfortably navigates daily in the trial court may not necessarily be the right person to handle your appeal. Advocacy in the appellate court is dramatically different than in the trial court, and requires different skills than are required to present a case to at trial judge.

The Peskind Law Firm has extensive experience handling appeals throughout the state. Steven N. Peskind has successfully appealed court decisions both in the appellate court and the State Supreme Court. Mr. Peskind and his team understand how to effectively present the case to the appellate court to maximize chances of success. Whether the case involves appealing a trial court ruling, or defending an appeal, the Peskind Law Firm can help. Contact Mr. Peskind at steven@peskindlaw.com or call the office at 630-444-0701.