waive a pretrial hearing?

[mpur458]

What is the name of your state (only U.S. law)?

The case is in Utah.

Brief summary: My husband's ex-wife and her husband have filed to adopt his 15 year old daughter. They have tried to prove my husband as unfit by claiming no-payment of child support and abandonment. The discovery process has been completed and these allegations have been addressed. Child support is current and we live in Texas and visitation is difficult, but when we have visited, requests to see the daughter were ignored.

A pretrial hearing has been set for November 20th. There is no way my husband can travel to Utah to attend. He is representing himself and has no attorney to send.

We are thinking the best approach is to waive the right to the pretrail hearing and enter a Motion for Summary Judgement.

Is this an appropriate response? If so, are the waiver and the motion separate documents or can they be entered as a single document?

Any advice will be appreciated.

 

[Ronin]

Waiving a pretrial hearing is risky and should only be done upon the advice of an attorney. However, unless a pro se understands the intent of such a hearing and the procedural requirements, the hearing may not be as beneficial as it could be, such that it may not be worth attending without an attorney.

A pretrial hearing is an opportunity for both sides to present their evidence and a list of witnesses, so that all parties have a fair opportunity to be prepared for these, and avoid last minute "surprises" at trial. It allows parties to object to evidence and have the judge rule on the admissibility before trial even begins, to avoid biasing a jury if they see or hear of the inadmissable evidence.

Beyond this, a motion for summary judgment may not be appropriate in your husbands case. Such a motion generally asks the court to decide on the case as a matter of law, since the relevant facts are undisputed. In his case, the facts appear to be highly disputed. The key facts in dispute are the ones relating to the allegations of abandonment, which are certainly relevant to this case.

In termination cases, the burden of proof required to prevail is clear and convincing evidence. If the father has at least some good evidence to indicate that he did not abandon his child (and showing up for trial is a good start), it is unlikely the mother will prevail on this. If he is a no show at trial, the court may presume all her allegations are true.

But most likely the father will at least need to show up for trial and put his best foot forward, if he wishes to have the court rule in his favor.

 

[mpur458]

Thank you for your response. You brought up some angles that hadn't occurred to me. (Hence the lack of a law degree on my wall.)

My thought is to waive the pretrial hearing, because I don't really see anything being presented that hasn't already been revealed in the discovery process. Nor do I see any kind of compromise or settlement coming out of it.

Since it is unlikely that a Summary Judgment would be issued, should he notify the court that he is waiving the pretrial (or that he can't attend due to financial hardship?) and ask for a trial date to be set at some point in the future when we can afford to travel to Utah?

I'm just not clear on the procedural stuff here and I don't want my husband to shoot himself in the foot.

Thanks again.

 

[janM]

Could he attend the hearing by phone?

 

[Ronin]

If your husband cannot truly cannot afford an attorney, he should be able to ask the Utah court to appoint one for him. A parent who is facing legal proceedings intended to terminate their parental rights normally do have a right to counsel. The courts website may have the application forms and information for this process. It's probably not a bad idea to go on record as having requested and been denied counsel, rather than not having requested the right to assistance of counsel at all.

Could he attend the hearing by phone?

It could not hurt to petition the court to allow him to attend the hearing by phone, but given the nature of pretrial hearings, it is impractical, and as such may not be granted. However, given this his parental rights are at stake, the court may choose to lean toward the side of caution and accomodate this.

If he cannot get an attorney, all he can do is show up at trial and do the best he can. Although you feel everything was already laid out during discovery, it is entirely possible he may be blindsided at trial with some new allegation or evidence, even if completely ludicrous. But even such occurs, just keep a level head and be honest and sincere in court.

Do some research. Google parental termination in general, and more specifically such cases in Utah in the context of parent vs parent cases, rather than CPS vs parent cases. Also the applicable Utah statutes.

http://library.adoption.com/articles/grounds-for-termination-of-parental-rights-utah.html

 

[mpur458]

Ok, thanks all. He's going to call the clerk tomorrow and see if either of those suggestions is an option.