Help! I Have a Hearing Coming Up, How Do I Prepare? Part II – Crafting a Winning Argument

WORD OF DISCLAIMER: This blog is not intended to replace the importance of getting legal advice about your case from an attorney. Rather, this blog is to give you general instruction about what is expected at a hearing (trial) and how to prepare. For specific instruction about your case and preparing for a hearing you should contact an attorney, or work with our LawYourWay program.

The key to crafting a persuasive argument is to clearly state the relief you are seeking, know the law the Judge will be applying, and then present the facts/evidence necessary to support your position so that the Judge will rule in your favor.

You must be able to state your desired conclusion simply. These conclusions should be clear and concise. Some examples of desired outcomes might be:

• “I am asking the Court to award joint-decision making for me and my spouse regarding major decisions regarding my children.”
• “I am asking that the Court reduce my child support to $_____.”
• “The assets of my marriage should be split equally between me and my spouse.”
• “I am asking the court to award me $___________ per month in maintenance.”

Depending on the hearing, you may have multiple requests/conclusions that you are seeking from the Court. Start by outlining the separate conclusions for each of the issues that you are asking the Court to address.

Next, you need to find the law that the Judge will apply for each of your issues. Judges are bound to follow Colorado written court rules, case law or statutes. To access the Colorado Rules of Civil Procedure, you may find these here. The body of statutes that speak on divorce, custody, and child support cases can be found in the Colorado Revised Statutes §14-10-101 through §14-10-133. You can find these statutes here.

Below are some sites to the most common statutes to review:

• Child Support - C.R.S. §14-10-115;
• Parenting Time / Decision-Making: Best interest of the Child - C.R.S. §14-10-124;
• Maintenance - C.R.S. §14-10-114;
• Property Division - C.R.S. §14-10-115;
• Modification of Parenting Time - C.R.S. §14-10-129;
• Disputes over Parenting Time - C.R.S. §14-10-129.5; and
• Modification of Decision-Making - C.R.S. §14-10-131.

Finally, you need to apply the facts of your case to the law that will be provided. This can be done in an outline format. As an example, if you are asking the Court to determine what parenting time the Court shall consider in the best interest of the children and all relevant factors, you should focus on the factors set forth in C.R.S. §14-10-124 to include when preparing your argument, as follows:

1. The wishes of the child's parents as to parenting time;
2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
4. The child's adjustment to his or her home, school, and community;
5. The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party's protective actions shall not be considered with respect to this factor;
7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
9. The ability of each party to place the needs of the child ahead of his or her own needs.

For each of the relevant factors you should outline the facts that apply to support your position. Examples of applying one of the best interest factors to your case are:

The child's adjustment to his or her home, school, and community:

• My son has been attending the same school in my school district for the last five years;
• My son has established a strong bond with his stepbrothers who live with me;
• My son has been a part of his school baseball team (which practices less than a mile from my home) since he was 6 years old; or
• My son has been going to my neighborhood church for the last 7 years.

You will need to apply the facts of your case to each of the applicable factors that the Court will be considering for each of the issues that you want the Court to decide. This takes time. Yet, doing this will serve as the basis for your entire hearing and what will enable the Judge to rule in your favor. This is a critical step because taking the effort to apply the facts to all the factors of the law that the Judge will be considering will tell you what evidence/testimony you need to present to the Court for the Judge’s consideration.

Regarding the above example of a parenting time argument, please note that the Court may appoint, and parties may hire, a Child and Family Investigator (“CFI”) or a Parental Responsibilities Evaluator (“PRE”) to address the best interests of the children and make recommendations for parenting time and other factors, which I will discuss in a later blog.

Going through all of these steps carefully and thoroughly not only will provide the Judge with a well-reasoned and persuasive argument but will also help you determine who you will need to call as a witness and what evidence and exhibits you will want to present to the Court at the time of your hearing. Stay tuned for Part III of this series!