Difference between revisions of "Faux Process And Rubber-Stamped Orders"
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In 2020, I represented a mother in Muskogee County fighting for custody of her 5-year-old son. The mother had full custody at the time and an intermittent hearing was held to potentially appoint a Guardian Ad Litem to the case. The Muskogee County Superior Court did not change custody that day—and the judge asked the father’s attorney to draft an order appointing the Guardian Ad Litem to the case. The opposing counsel drafted the “proposed” order for the judge to review. In the proposed order, however, the opposing attorney inserted a clause that changed full custody from the mother to the father. The judge signed the order without scrutiny and, without notice or a hearing on the matter, the mother lost full custody of her son. It took over a year and a judge's recusal for the mother to regain primary custody of her son. | In 2020, I represented a mother in Muskogee County fighting for custody of her 5-year-old son. The mother had full custody at the time and an intermittent hearing was held to potentially appoint a Guardian Ad Litem to the case. The Muskogee County Superior Court did not change custody that day—and the judge asked the father’s attorney to draft an order appointing the Guardian Ad Litem to the case. The opposing counsel drafted the “proposed” order for the judge to review. In the proposed order, however, the opposing attorney inserted a clause that changed full custody from the mother to the father. The judge signed the order without scrutiny and, without notice or a hearing on the matter, the mother lost full custody of her son. It took over a year and a judge's recusal for the mother to regain primary custody of her son. | ||
So what happened here? How could a judge simply sign parental rights away at the drop of a hat, without notice or a hearing? This is what I call “faux process” (contra to “due process”) and what many attorneys refer to as a “rubber-stamped” order. The formula for this injustice is as follows: | So what happened here? How could a judge simply sign parental rights away at the drop of a hat, without notice or a hearing? This is what I call “faux process” (contra to “due process”) and what many attorneys refer to as a “rubber-stamped” order. The formula for this injustice is as follows:<br> | ||
(1) First, a judge holds a hearing. <br> | (1) First, a judge holds a hearing.<br> | ||
(2) Then at the hearing, the judge makes an oral ruling and tells the attorney for the "winning party" to draft a proposed order for the judge to sign. | (2) Then at the hearing, the judge makes an oral ruling and tells the attorney for the "winning party" to draft a proposed order for the judge to sign. | ||
(3) The drafting attorney then inserts wording awarding additional remedies that were not part of the judge's oral ruling nor within the scope of the hearing. | (3) The drafting attorney then inserts wording awarding additional remedies that were not part of the judge's oral ruling nor within the scope of the hearing. | ||
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