“Meeting the Expectations of the Court” Family Court

Click on any item to view associated materials Biographies of Speakers

The Honorable Felice Glennon Kerr Judge, Family Court of the State of Delaware Glynis Gibson, Esquire, Glynis Gibson, P.A. Sean M. Lynn, Esquire, Baird Mandalas Brockstedt, LLC

Webpage to the Family Court of Delaware

http://courts.delaware.gov/family/

Program Materials *

If I Only Knew Then Practice tips for New Lawyers in Family Court Expectations of Attorneys Representing Indigent Parents Expectations of a Guardian Ad Litem Order Appointing Guardian Ad Litem Rule 52(D) Ancillary Pretrial Stipulation

* The forms included herein are samples only and may not be appropriate for any particular matter.

Felice Glennon Kerr

Judge, Family Court of Delaware

Judge Kerr has been a member of the Family Court Bench since July, 2015. As a Judge, she hears civil and criminal cases, including dependency/neglect proceedings.

Judge Kerr received a B. A. from Villanova University in 1986 and a J. D. from Suffolk University in 1989.

Prior to joining the Court, Judge Kerr was the Managing Partner of the Delaware office of MacElree Harvey, Ltd. where she practiced primarily Family Law. Judge Kerr previously worked at Bayard, PA and Laffey & Kerr, PA. In private practice, Judge Kerr also served as a mediator and parent coordinator for high-conflict families.

Judge Kerr served on the Board of Trustees for the Delaware Lawyers’ Fund for Client Protection and served as the Chairperson of the Lawyers’ Fund. She is also a past Chairperson of the Family Law Section of the Delaware State Bar Association. Judge Kerr has frequently lectured on family law and dispute resolution topics, and has written articles on Family Law issues. Judge Kerr serves as a coach for the Delaware High School Mock Trial Competition and as a volunteer for the Boy Scouts of America.

A Dover native with strong ties to the community, Sean graduated from Dover High School and continues to reside in Dover. Sean was a Public School Teacher in the Bronx, New York, for several years after graduating college, where he served in an economically depressed school. During Law School, Sean clerked at the Manhattan Law Firm of Fasulo, Shalley and DiMaggio located near the former World Trade Center. With the Delaware Family Court, Sean served as Counsel for Indigent Parents involved in litigation with the Division of Family Services through a contract with the State of Delaware in 2006.

Active and involved in the community, he has volunteered in many local Organizations, including, The Children's Theatre, The Kent County SPCA, and The Northern Kent County Circle of Hope. Currently Sean manages the Patrick H. Lynn Scholarship Fund, a charitable trust established in honor of his father to benefit college bound local students with financial assistance. Sean also serves as pro bono Counsel for several local children through volunteer work he does through the Office of the Child Advocate.

Sean is a Graduate of Pace Law School, in White Plains, New York, and a Graduate of Marymount Manhattan College, in New York City. He gained admittance to the Delaware Bar in 2005.

As a practicing attorney, Sean has been awarded the SuperLawyers "Rising Star" award in the field of Family Law in 2012, 2013 and 2014. He was recognized by the Office of the Child Advocate on their Pro Bono Honor Roll from 2008-2015.

Sean teaches new lawyers the "Expectations of the Family Court" at the annual Bridge the Gap Conference wherein freshly admitted Delaware lawyers learn the basic demands of the State's Family Courts.

In 2014, Sean was elected to the Delaware House of Representatives for the 31st District. He currently serves as the Vice Chair of the House Energy Committee, and is a member of the House Agriculture Committee, House Education Committee, House Health & Human Development Committee, House Judiciary Committee, House Telecommunication Internet & Technology Committee, and House Veterans Affairs Committee.

Prior to his current service as a Delaware State Representative, Sean was elected to the City of Dover City Council, where he represented the Third District of Dover. In that capacity, Sean served as Chairman of the City of Dover Legislative, Finance and Administration Committee. He also served on the Public Safety Committee, the Utility Committee, the Civilian Pension Board, the Police Pension Board, the Construction Code Board of Appeals, and was the Mayor's appointee to the Library Commission.

IF I ONLY KNEW THEN ………………..

1. Motion Practice. - Every Motion must be decided and closed in the docketing system. Multiple Motions can

create confusion and delay, especially if there are multiple petitions and some are with the Judge and others in the Commissioners’ unit.

- Many motions are not opposed but are filed without the other side’s position. Stipulations are better than Motions so if you agree then Stipulate. See the bullet point above.

- If there are consolidated petitions, the Motions and thus the Motion Orders are filed and docketed in all files. See the bullet point above.

- Discovery disputes should be discussed before Motions are filed. Communicate with one another before resorting to Motion practice.

- Do not let Motions take on a life of their own. See the first bullet point. - Motions should be short and to the point. Be clear about what you are asking for and why.

2. Evidence. - Stipulate to as much as possible before trial and in writing. The more that is in writing, the

less chance of an error. - Exchange all evidence before trial and attempt to work out evidentiary disputes - Only oppose what actually hurts your case - Knowing the Rules of Evidence matters in Family Court - If there are large exhibits such as numerous bank statements, so a summary of what it is you

are intending to illustrate with the statements. Examples: expenses; deposits (income) 3. Emergencies – Excluding Protection from Abuse and Division of Family Services.

- There is a large volume of mostly pro se emergencies filed every day. Most are guardianships and custody cases. Emergencies are turned around the same day or within 72 hours.

- If an ex parte is granted the hearing must be held within 10 days. - Emergencies should only be filed in the most serious cases where there is a showing of

immediate and irreparable harm. Generally, this will involve some form of child abuse, dependency or neglect or parental kidnapping.

- Generally there are no emergency financial issues. - If you do have an emergency, use the Court forms for emergencies and attach the form of

Order from Court forms. An emergency may not be processed as an emergency if it doesn’t look like an emergency. Priority and emergency are not the same thing.

4. Letter writing. - Letters should not replace Motions. - There is no clear time for responding to letters which are actually Motions. - There is no Order attached to a letter. - Letters are appropriate to convey information to the Court.

5. Taking time to settle in the beginning of a case. - Contact the Court ahead of time to let the Judge know if you want to use part of the trial

time to work out final details of a settlement and to get permission.

PRACTICE TIPS FOR NEW LAWYERS IN FAMILY COURT – VIEW FROM THE BENCH

1. Send courtesy copies to the assigned Judge – particularly if time sensitive such as responses to motions. It can take time to have pleadings move from the clerk’s office to the judge.

2. Attach Orders to Motions that say what you actually want the Court to do rather than a blank Order. Attach Orders to Responses to Motions as well.

3. Motions must be verified or otherwise supported by documentation. Attach income and expense information to Motions for Interim Alimony.

4. Read the Rules and the Scheduling Orders. If you agree to extend deadlines file a Stipulation and get permission from the Court.

5. Reach out to experienced practitioners. Most will be willing to help you.

6. Treat pro se litigants with respect and communicate with them but recognize they are not lawyers. (i.e. They may find a Request for Production of Documents with a five page definition of what a “document” is to be overwhelming).

7. Treat Court staff with courtesy and respect. Your reputation depends not just on your behavior in the Courtroom.

8. Admit mistakes (we all make them) and take corrective action. 9. Stipulate to as much as possible in writing. Family Court is a high

volume Court and there is less chance of a mistake in an agreement if it is in writing and signed by both sides.

10. Be prepared. Know the facts and the law. Be familiar with all the pleadings in the case. Obtain documents as soon as possible. Know when it is your burden of proof.

EXPECTATIONS OF ATTORNEYS REPRESENTING INDIGENT PARENTS

1. The Court expects the appointment to be accepted (or one of the alternatives offered) in a timely manner. See In Re Murray.

2. The Court expects the attorney to meaningfully meet with the client. 3. The Court expects the attorney to listen to the client. 4. The Court expects that if the attorney has difficulty making contact with the

client that the attorney will reach out to those who may be able to locate the client, such as social workers and treatment workers.

5. The Court expects that if the attorney still cannot make contact with the client that the Court will be notified in a timely manner.

6. The Court expects that the attorney will be prepared and will advocate for the parent in the same manner as any other client.

7. The Court expects the attorney to cooperate with the other parties in the case, even if they are pro se.

8. The Court expects the attorney to be aware that pro se litigants are not going to understand a lot of legal jargon and to use common sense in dealing with pro se litigants.

9. The Court expects the attorney to familiarize himself or herself with the substantive law and Rules of the Court and to seek guidance from experienced attorneys if needed.

10. The Court expects the attorney to follow all the Rules of Professional Conduct as in any other case.

11. Do not be afraid to take these appointments. These appointments can be very rewarding and can turn the lives of the parent around. Again, just as with GAL’s, some of the best parent attorneys are not family court practitioners.

EXPECTATIONS OF A GUARDIAN AD LITEM (“GAL”)

1. The Court expects the attorney to accept the appointment. See In Re Murray, 47 A. 2d 972 (Del. 2012)(Table). Most family court practitioners are going to be willing to provide guidance and the Court expects a GAL to reach out if there is a question.

2. Meet your client. The amount and circumstances of the contact will depend upon the age of the child and other issues in the case. For example, if your client is an infant, observing the child with the parent or parents or with a proposed guardian or potential adoption placement would be more helpful than just meeting the child with a social worker. If the child is a teenager, one on one conversations would be more helpful.

3. In the rare situation that the child refuses your services, let the Court know.

4. Use your Order. The Order appointing the GAL gives the GAL access to a lot of information which is otherwise difficult to obtain. You can obtain mental health and treatment facility records. See attached Order.

5. Make an independent assessment of what is in the best interest of the child. Your role is essentially to advocate the child’s best interest. Don’t be reluctant to propose solutions that are outside the positions of the litigants or agencies involved.

6. If you believe that the child’s best interests are contrary to the child’s wishes and the child is old enough to have his or her wishes given significant weight, advise the Court of the conflict and a Frazier attorney can be appointed, whose role is to advocate the child’s wishes.

7. Be prepared and follow the rules. Just as with any other case, the Court expects the GAL’s to come to Court prepared to present their part of the case.

8. Don’t be afraid! GAL’s can really turn a case around regardless of their level of family law experience. Representing children requires doing what you believe is best for them. Some of the best GAL’s are not Family Court practitioners.

Form 466 Rev.3/07 FILM

The Family Court of the State of Delaware In and For New Castle : Kent Sussex County

RULE 52(D) ANCILLARY PRETRIAL STIPULATION DATE OF MARRIAGE: 7/4/83 CASE NAME: Petitioner v. Respondent

DATE OF SEPARATION: 1/1/06 FILE NUMBER:

DATE OF DIVORCE: 12/11/06 PETITION NUMBER: PETITIONER’S NAME: Polly Petitioner RESPONDENT’S NAME: Ronald Respondent ADDRESS: 100 Dreamhouse Drive ADDRESS: 20 Bigger Street

DATE OF BIRTH: 7/4/57 DATE OF BIRTH: 9/10/55 HOME PHONE: HOME PHONE: WORK PHONE: WORK PHONE: EMPLOYER NAME: Self -employed EMPLOYER NAME: US Air EMPLOYER ADDRESS: Home EMPLOYER ADDRESS: YEARS EMPLOYED: 5 years YEARS EMPLOYED: 15 years POSITION OR OCCUPATION: Online Business POSITION OR OCCUPATION: Pilot CURRENT ANNUAL INCOME: $35,000.00 CURRENT ANNUAL INCOME: $183,000.00 PETITIONER’S ATTORNEY: Glynis Gibson, Esquire RESPONDENT’S ATTORNEY: Carol Braverman, Esquire ATTORNEY’S ADDRESS: 110 North Main Street ATTORNEY’S ADDRESS: 108 Old Camden Road Suite A, Spruce Acres Camden, DE 19934 Camden, DE 19934 PHONE NO.: (302) 698-3500 PHONE NO.: (302) 697-8070 FAX NO.: (302) 698-3522 FAX NO.: (302) 697-8061 E-MAIL ADDRESS (optional): E-MAIL ADDRESS (optional): If you have remarried, indicate date of remarriage: If you have remarried, indicate date of remarriage: 5/7/07

Names and dates of birth of minor children of the parties. Indicate with whom the child(ren) primarily reside: Mother (M); Father (F); Shared (S).

N/A N/A

Names and dates of birth of any adult children residing with either party. Indicate whether the child is enrolled in school.

Date of settlement meeting: * 5/1/07 Jurisdiction has been retained for the following:

Date of pretrial conference: 9/28/07 : Property division : Alimony

Date and time of ancillary hearing: 10/31/07 : Counsel Fees : Court Costs

*or reason why not held

Percentage Distribution Requested:

Petitioner: 60/40 Respondent: 50%/50%

2

. HOUSEHOLD BELONGINGS

*Two List Method

NS

ified do elations orders (QDROs) or pension allocation orders been prepared for all marital pension plans? Yes : No

. ISSUES IN AGREEMENT

ASSETS VALUE

t)

A

Have household furnishings and belongings been divided? Yes : No

B. PENSIO

Have qual mestic r

C 1. List marital assets and their specific values:

100 Dreamhouse (J $550,000.002006 Porsche (W) $40,000.00 1938 Rolls Royce 136,000.00 $ 2. List marital debts to be shared and their specific balances:

DEBTS AMOUNT ortgage to Friendly Bank (Jt) 150,000.00 M $

3. State the annual incomes which the parties agree should be attributed to each party:

Husband: $183,000.00 Wife: $ 35,000.00* 4. State other issues in agreement: US Airways Pilot Retirement Benefits Program/Fixed Income Plan and Variable Income Plan to be divided pursuant to the Cooper Formula with a 50% multiplier. Wife’s attorney to prepare QDRO. Wife’s IRA of $80,000.00 to be divided pursuant to the Cooper

ormula with a 50% multiplier. Husband’s attorney to prepare roll over QDRO. F *Husband disagrees with Wife’s income. She was offered a job at $100,000.00.

3

. ISSUES IN DISPUTE

ist the marital assets in dispute and state each party’s position:

ASSETS/VALUE HUSBAND’S POSITION Beach House Inherited

ubstantially with marital funds.

D 1. L

WIFE’S POSITIONAlbanese claim-improved s

6 Antique Cars Pre-marital Private Plan Proceeds from pre-marital assets Wife’s business $200,000.00 Husband’s out of state business holdings 1,000,000.00 $ 2. List the debts in dispute and state each party’s position:

AMOUNT

Credit Cards- $100,000.00 d

ccounting for part of the debt.

t even aware and never used card.

DEBTS/ HUSBAND’S POSITION Used to consolidate debts incurred by Wife in her business. Husbanhad two free tickets to Europe. Wife also has a gambling problem

WIFE’S POSITION H took his mistress to Paris. She wasn’

a 3. If either party’s income is in dispute, state the basis of each party’s position:

rital, all other holdings are results of pre-marital investments.

ension.

Also has extensive business hol ings in other states.

HUSBAND’S POSITION Military pension is pre-ma

WIFE’S POSITION In addition to income H received from consulting business he retired from Air Force as Lt. Cornel and has military p

d

4. State other issues in dispute and each party’s position:

Paintings, antiques, tools, CD’s, exercise equipment

rital rited and gifted property.

s, CD’s, exercise equipment.

ISSUE HUSBAND’S POSITIONWife has retained many items comprising similar value. Husband agrees to Two List Method and will prepare the Two Lists within thirty (30) days, omitting the pre-ma

WIFE’S POSITION H took items of marital property of substantial value when he left-paintings, antiques, tool

inhe

4

.

List the witness(es) you expect to call and the reason for their testimony. Other witnesses will be permitted to testify only with Co

HUSBAND’S ES) WIFE’S WIWitness for Testimony Witness

E WITNESSES

urt approval:

WITNESS( TNESS(ES) Name of Reason Name of Reason for Testimony

Husband All issues. Wife All issues. Rex Astate Appraiser. Dr. Frontier rk and

ddiction.

Wife’s inability to wothat she does not have a gambling a

Nolo Respondent d gifted property.

ner or inherited.

Pre-marital inherited an Anna Petitio Items were not gifted

Bill Gatson Business Appraiser. Lando Cal Business Appraiser. F.

List any other relevant considerations (including factors listed in Title 13, Section 1513 of the Delaware Code, such as extraordinary co ssipation by a party, exce ional gifts, or non-marital asset

bling problem and has dissipated at least

50,000.00 in the last year on internet gambling sites and at over Downs.

Husband has dissipated significant marital assets buying his istresses gifts, buying himself liposuction, face lifts.

OTHER RELEVANT CIRCUMSTANCES

ntributions or di pt s):

HUSBAND Wife has a gam

WIFE

$D

m

G ALIMONY .

limon ing:

1.

If a y is requested, the party seeking alimony is to complete the follow

Have you cohabitated with another adult since separation: __NO. If yes, include start date or dates of cohabitation: ____N/A____

. mount of monthly child support received from other party:

.

2 A $ N/A . If pursuant to an Order, date of Order: ____________________.

e nal Order Int rim Order Fi 3. Amount of any monthly interim alimony: $5,000.00 , date of order: 3/15/06 . 4. R alth is at issue, identify the supporting evidence to be presented at trial:

ool education.

eason(s) party is dependent. If he

Has only high sch50 years old, no employment outside of home. Agoraphobia.

5. Attach a list of your CURRENT and PROPOSED expenses in the form on pages 9 and 10 of the Rule 16(c)

Financial Report

5

H.

ursuant to Title 13, Section 1513 of the Delaware Code, the Court, in dividing the marital property and allocating the marital de ing factors:

. The length of the marriage;

HUSBAND’S POSITION WIFE’S POSITION 23 years 23 years

PROPOSED REASONS P

bts, must consider the follow1

2. Any prior marriage of the party;

HUSBAND’S POSITION WIFE’S POSITION N/A

N/A

3. T unt and sources of in ome, vocational skills, e iabilities and needs

WIFE’S POSITION usband has significant income but Wife could have also if e would go to work. No doctor has diagnosed her with

goraphobia. She just does not want to go to work.

ife’s agoraphobia limits her ability to work outside the home ut she is maximizing her income by operating her online usiness.

he age, health, station, amo c mployability, estate, lof each of the parties;

HUSBAND’S POSITION

Hsha

Wbb

r in ad itio

HUSBAND’S POSITION WIFE’S POSITION _______ ife has requested alimony it should be a 50/50 division

Wife is seeking permanent alimony and 60% division of the

4. Whether the property award is in lieu of o

d n to alimony;

W

. marital assets.

ns o ca

cquire assets, but

at is because he works hard. With Wife’s computer skills, she ould have a job earning substantial income. Bill Gates offered er a position earning $100,000.00 a year.

Wife is working to her maximum capacity. The job with Bill ates would have required she relocate and as a result of her

goraphobia is unable to fly or live in open spaces.

5. The opportunity of each for future acquisitio

HUSBAND’S POSITION Husband may have a better opportunity to a

f pital assets and income;

WIFE’S POSITION

thch

Ga

6. T on of each party in th acquisition, preservatio reciation of the

on of a art

HUSBAND’S POSITION Wife has dissipated assets due to her gambling. Wife has

fused to tale more lucrative positions. ost of the parties’ marriage,

ooking, cleaning, and helping Husband _____________ in is career. Wife denies she has a gambling problem and that he has dissipated marital assets.

he contribution or dissipati e n, depreciation or appmarital property, including the contributi

p y as homemaker, husband, or wife;

WIFE’S POSITION Wife has been a homemaker for m

re chs

6

The value of the property set apart to each party;

HUSBAND’S POSITION WIFE’S POSITION Husband has separate property valued at approximately $200,00 .

Wife maintains all property is marital.

7.

0.00

8. T of each party at the time the division of prop tive, including the

r the htany children of the marriage will live;

HUSBAND’S POSITION WIFE’S POSITION Husband has more favorable circumstances due to his hard work.

Wife cannot maintain the lifestyle enjoyed during the marriage

he economic circumstances erty is to become effecdesirability of awarding the family home o rig to live therein for reasonable periods to the party with whom

without financial assistance from the Husband.

property was acquired by gift, exce h ) of the

Delaware Code;

HUSBAND’S POSITION WIFE’S POSITION See above re: specific assets. Wife denies any property was acquired by gift.

9. Whether the pt t ose gifts excluded by Title 13, Section 1513(b)(1

10. The debts of the parties;

HUSBAND’S POSITION WIFE’S POSITION The $10 0.00 credit card debt is marital. Wife believes all credit card debt should be assessed to

Husband as she was unaware he incurred these obligations and they were for his personal enjoyment.

0,00

11. Tax consequences;

HUSBAND’S POSITION WIFE’S POSITION There ar no tax consequences with the exception of alimony

ment deductible by usband.

None other than those associated with the payment of alimony.

e pay s, which are taxable to Wife andH

I. ESTIMATED TRIAL TIME HUSBAND’S Estimated Trial Time: __1 ½ days__________ WIFE’S Estimated Trial Time: __1 day__________

7

. OTHER

Attach a “Wright Chart” and a proposed form of Order. State any other stipulations below:

J The litigants are hereby bound in the ancillary proceedings by the stipulations made above, absent a showing of good cause and amended Court Order and have an affirmative duty to provide the Court with any material change in information.

, ismissal of the ancillary matters with prejudice, fines, counsel fees and/or forfeiting the Ancillary Hearing date.

Domestic Relations Orders (“QDROs”) dividing any ssets which either party proposes be divided by QDRO.

At the Court’s discretion, the parties may be required to amend, resubmit or supplement the Ancillary Pretrial Stipulation. Failure to comply may result in the imposition of sanctions that may include, but are not limited tod At least seven days prior to the ancillary hearing, the parties shall exchange and premark all exhibits, with theexception of any exhibits which either party seeks to introduce solely for the purpose of impeaching the other party. Husband’s exhibits shall be premarked “H-_” and Wife’s exhibits shall be premarked “W-_.” At the commencement of the Ancillary Hearing, the parties shall submit a stipulation of the matters about which they agree and the matters that remain at issue, and Qualified a

USBAND IFE

H W

USBAND’S ATTORNEY IFE’S ATTORNEY

H W

ATE ATE

T IS SO ORDERED.

D D I

UDGE

J DATE

8

HUSBAND’S Wright v. Wright Chart

Tit Husband rive $ $

Assets le Value Wife Dreamhouse D Jt 550,000.00 550,000.002006 Porsche W $40,000.00 $40,000.001938 Rolls Royce Silver Cloud $136,000.00 $136,000.00H Internet Business W $200,000.00 TOTAL $926,000.00 $136,000.00 $790,000.00

Debts

Mortgage Jt $150,000.00 $150,000.00Credit Card Jt $100,000.00 $100,000.00 TOTAL $250,000.00 $250,000.00

Tax-deferred Assets

US Airways Retirement Plans H QDRO -50 Multiplier

IRA WQDRO-50%

Multiplier

$80,000.00-

$676,000.00Sub-total: $136,000.00 $540,000.00*Cash Adjustment to Equalize Distrib + -ution: $202,000.00 $202,000.00

Total: $338,000.00 $338,000.00 *Wife to pay Husband.