The Fact-Finding Trial and Disposition Hearing
The Fact-Finding Trial
Let us assume you have made the decision that you should not stipulate to the allegations of abuse or neglect. By this time, several weeks or even months have passed since your child was removed. By this point, you should be compliant with all court orders, and working with your attorney to assist him or her in preparing your defense. If you have done all of these things, your lawyer will be prepared for the trial You will probably be nervous, but you will also be relieved that your long-awaited day in court has arrived.
Your trial will be in front of a judge only - there are no juries in family court. At the fact-finding hearing your lawyer can cross-examine witnesses and call witnesses in your favor. However, you need to let your lawyer know in advance about any witnesses, because the Division may request information about them. Your lawyer wants to make sure that he or she does not present anything that might backfire and hurt your case. The Division has to prove its case by a preponderance of the evidence unless they have notified your attorney that they are seeking the higher "clear and convincing" standard (see previous post). You may want to testify yourself at the hearing, but your lawyer will want to discuss this decision with you. You do not have to testify and if you do you will be subject to difficult cross-examination. Because the Division has the burden of proof, your lawyer does not have to present a case for you and may decide to rest his or her case after the DAG rests.
Your lawyer will want to try to exclude as much evidence as possible. Very often the documents that the Division presents include inadmissible hearsay. Or the Division will offer testimony of a worker or supervisor who does not have personal knowledge of the facts of the case. Your attorney can make appropriate objections before and during the trial.
Most fact-finding trials take longer than one day and sometimes cannot be completed in consecutive days. Often times you will be waiting weeks before the judge gives a decision at the end of the trial. Once the Judge has considered all the evidence, he or she will make a decision and give an oral and/or a written opinion. If the judge finds in your favor he or she may order the case closed and return your child to you. If the Judge rules in the Division's favor, the court will immediately conduct a disposition hearing to determine what will happen next.
If the Court decides that you did abuse or neglect your child, you can appeal this decision within 45 days. An appeal is not a new trial but a review of all the evidence by three Appellate Judge s who will decide if the Judge decided your case correctly. Although the Appellate Division will hear any case that comes to it, not all appeals are successful. Your attorney will discuss your situation with you and help you decide whether to appeal your case. The Division or the Law Guardian can appeal also, if the court rules in your favor. I will discuss appeals in detail in a later post.
The Disposition Hearing
The court will usually hold a Disposition Hearing immediately after either a stipulation or a fact-finding hearing. The Division will tell the Judge what steps you need to take in order to address the problems that led to the removal of your child. The Judge will assess the situation and will decide if your child can come home now, or if you need to complete services first. The Judge will issue an Order which will set forth what you need to do.