Going to court – hearings and trials
A hearing or trial should usually be the last resort for solving a legal problem, especially if the legal problem involves parenting. Some people want to have their ‘day in court,’ expecting that they will be allowed to stand in court and just ‘say their piece.’ Remember that what you see on TV is not usually the way courts and the legal system work in real life. There are rules that have to be followed about what you can say in court and what evidence you can present, and these rules will not be disregarded just because you may be representing yourself. People involved in a court case at a hearing or trial cannot just get up and talk when they want.
If you go to court, a judge must decide what to do in your case based only on the sworn evidence they hear or read in any affidavits filed, or any exhibits or reports that are taken as evidence. If you do not have a lawyer, you are still expected to know and follow the rules of the court about how to present your case. This can be confusing and stressful.
Sometimes court is necessary, for example, if the situation involves issues like violence, or if all other available methods of fixing the dispute have been tried. While going to a hearing or trial will allow a judge to make a decision in a case, it is important to realize that their decision is made using very specific, narrow legal rules in a very structured court setting.
When you go to court to have a judge make a decision in your case, you are giving someone else the power to make decisions that will impact your life, and perhaps your children’s lives. The judge hearing your case does not know you or your children personally, and can only make a decision based on the proper evidence put in front of them. Wherever possible, it is best that you and the other party or parent try to come up with an agreement that works for all of you, especially when it comes to parenting arrangements. The judge will do their best to make a decision that is in your children’s best interests, but sometimes neither parent may be happy with the result. Parents who can work together to come up with solutions are often the best people to create custom-made plans to parent their children, because they know their children best.
A judge cannot supervise the terms of an order or decide things like support or parenting issues on an ongoing basis. Judges will, most often, use the traditional custody/access language in making a decision and will base decisions about support on income information that is known at the time of the hearing. In the case of parenting issues, this can create inflexibility that may disadvantage both parents and children as the situation changes, as the order may no longer fit the new situation.
The court process also puts one person against the other and can increase hostility and resentment between the people involved. We call this legal process an ‘adversarial process.’
If a person representing themselves in court does not do a good job of presenting their case, or does not understand the law or legal procedures, then they run the risk that things may not go well at a hearing or trial. They may not be able to do anything about it afterwards as appeals can only be made under certain situations – they are not a second chance to present your case.
The judge will require the parties and any witnesses they are calling to file and exchange information before the hearing so that what is in dispute can be identified and an appropriate court time set. This may result in more than one court appearance and could involve delays if the parties are not ready.
Any person going to a hearing or trial should have legal advice, or better yet, legal representation. Talk to your local court about other ways you may be able to resolve your legal disputes aside from a hearing or trial, or click here.
If your matter does go to a hearing or trial, there is a new workbook that can help you to prepare for court. The workbook is called 'Going to Court: Self-Represented Parties in Family Law Matters,' and you can find it here. The workbook contains information about preparing for court and how to present a case in court, as well as worksheets to help you prepare.
Remember that a judge cannot act as a lawyer for either party and cannot fill in the gaps of your case for you. Self-represented people are supposed to know the law and legal rules. People can help themselves by learning more about the law, the rules and procedures to follow. Reviewing the links to other parts of this website may also be helpful. There is really no substitute for getting advice or representation from a lawyer. For information on how to get legal advice or find a lawyer, click here.
For more information about preparing for court, what goes on in the courtroom, and what happens after a hearing or trial is over, click on one of the selections in the menu to the left.