Legal Parallels – Family Law vs Civil Litigation

Divorce-HelpAlthough Family Law is technically part of civil litigation, sometimes the names used for the same things in Family Law and in ‘normal’ civil litigation are different. Family Law is also form driven while normal civil litigation is not.  In Family Law cases there is a form for almost everything, and all but a few are mandatory.  The number of forms used in normal civil litigation is small, and only a few are mandatory.  Using different names for the same thing irritates me.

Lately there have been changes in the Family Law forms.  One of them makes Family Law sound more like normal civil litigation.  When you ask the court in normal civil litigation to make an order of some kind, you make a motion.  There is no form.  Before January 1 of this year, when you asked the court in a Family Law case to make an order of some kind, most of the time you were required to use a form called an “Order to Show Cause.”  Now that form has disappeared.  In its place we have a form called a “Request for Order.”

For historical reasons, the name of the previous mandatory form was more accurate than the name of the new form, but the explanation for that is of no interest to most people, and it’s a long story.  “Request for Order” is shorter and easier for people to understand.  In addition, lawyers usually abbreviated “Order to Show Cause” to “OSC,” which mystified most clients.  “Request for Order” is an improvement and brings Family Law a bit closer to normal civil litigation, but I don’t understand why “Motion for Order” wouldn’t have served just fine.

Another change in the Family Law forms is the appearance of a new mandatory form for status conferences.  A status conference is just what the name implies.  The judge requires the parties to come to court and tell him what’s happening in the case.  In normal civil litigation, the formal name for a status conference is a case management conference, and a mandatory form, called a “Case Management Conference Statement,” has to be filled out separately and submitted beforehand by both sides.

Before January 1 of this year, in Family Law there was no formal name for a status conference and no mandatory form to submit beforehand.  Now there are both.  The formal name is Family Centered Case Resolution Conference, and the mandatory form is called a “Family Centered Case Resolution Conference Order.”  Isn’t that a bit long?  And what’s family centered case resolution supposed to mean?  Aren’t we divorcing people here and taking families apart?  Whatever. If it’s nasty, give it a nice name and you’ll feel better about it.

Furthermore, parts of the form are orders.  You can’t fill them in beforehand, because you don’t know the orders beforehand.  So far I haven’t discovered how we’re supposed to get the correct orders in one version of the two forms and get it signed and filed.  To my mind, the normal civil litigation name for the status conference and the form for it would have been just fine.  In this instance Family Law and normal civil litigation have gone unnecessarily in the opposite direction, further apart rather than closer together.  I don’t think that’s an improvement.

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Stan Prowse

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