Valerie J. Botter

Creative solutions for family transitions.

What is the Judge’s Role in the FRSC Court?

by Valerie J. Botter

The Family Resolutions Specialty Court (FRSC) in Hampshire Probate and Family Court provides parents from all of the four Western MA counties with an alternative to traditional Court litigation. FRSC parents experience a collaborative Court process in which they, their lawyers (if they have counsel), the Family Consultant, the appointed attorney for the children, the assigned Probation Officer, and the Mediator each provide expertise and communication skills to help parents reach full agreements in their divorce, paternity, or post-judgment proceedings.  So how and when is the FRSC Judge involved?

Each time the parents appear before the Court at a Court Conference, the parents share with the FRSC Judge what each of them feel are the outstanding concerns and issues. Then the FRSC team members (including the lawyers) sit together at a table to each share his and her perspectives on those issues. The FRSC Judge shares her wisdom and knowledge to help the parents consider the issues, and when appropriate, opines on how to streamline the issues and/or consider another perspective. There are often several Court Conferences before a final agreement is reached.  For most families, this collaborative process leads to a full settlement, and the FRSC Judge approves the final agreement at a later Court Conference. But when parents cannot agree, some or all of the issues are decided by the FRSC Judge. 

There are no formal motion sessions or pre-trial conferences in FRSC, and all Court appearances are referred to as “Court Conferences.”  If the parents cannot decide an issue while the case is pending, the FRSC Judge will provide the parents with advance notice of an opportunity to present the issue to the Court for resolution, and the FRSC Judge’s decision is then incorporated into a Temporary Order.  If the parents cannot reach a full final agreement, whatever issues are not agreed upon are also decided by the FRSC Judge at a final Court Conference. That final Court Conference is scheduled with notice to the parents, and with deadlines for exchanging documents and other tangible evidence that the parents wish the FRSC Judge to review.

So . . . do most FRSC cases settle? Yes. However a few FRSC cases are resolved by the FRSC Judge making a decision, and now and then a parent in a FRSC cases concludes that they need to resolve their issues in the traditional Court, and so they “opt out” of the FRSC case and resume a litigation track. But some FRSC cases proceed through a process where the FRSC Judge makes rulings and decisions on issues about which the parties cannot agree. So what does it look like when the FRSC Judge makes a decision?

In a FRSC divorce in which I represented the child, the parents could not agree upon the amount of child support that one parent would pay the other. One of the children was enrolled and attending college, the other child was in high school and lived primarily with one parent, and the other parent was paying some of both children’s expenses and the other parent’s expenses. No child support was being paid. The parents were not represented by counsel. After working with the Probation Officer and a FRSC mediator, the parents were unable to reach an agreement, so the FRSC Judge let the parents know that at the next Court Conference, she would ask the parents to express their proposals regarding child support, and that the FRSC Judge would enter an order for temporary support.  The FRSC Judge asked the parents to bring their current financial statements and to each be prepared to address the issue of temporary child support at the next Court Conference.

At that Court Conference, each parent engaged with the FRSC Judge in a discussion about which parent was paying what expenses for the children and for the other parent, and why each parent felt that his/her proposal for child support was fair.  There was a lot of dialogue between the FRSC Judge and the parents in order to clarify the details of the children’s expenses and the parents’ income and expenses. The parents were unable to agree upon an amount of child support, and asked the FRSC Judge to make the decision, which she did, entering a temporary order for child support that deviated from the child support guidelines in consideration of some of the expenses that the non-residential parent was paying. While the amount of child support was not what either parent had proposed, both parents seemed satisfied that the FRSC Judge understood their finances and made the Order after careful consideration.

In a post-divorce modification case, the parents were unable to reach an agreement about where their young son would reside when he began Kindergarten later that year (the child was then living half-time in Northampton and half-time in Boston from the time of the divorce until the time of final FRSC Court Conference). The FRSC team worked hard with the parents to help them reach an agreement, and the FRSC Judge heard from both parents several times at Court Conferences. This helped the FRSC Judge understand the parents’ perspectives, the impediments to them reaching an agreement, and she learned that neither parent could move closer to the other due to their work commitments which required each of them to reside in their respective communities.

Removal cases pose the greatest challenge to settle, because there is typically no compromise position.  In this family, the child had to live with one parent during the school week and with the other parent on weekends. Both parents wanted the child to live with him/her during the school week.  One parent worked primarily (but not exclusively) on weekends, which presented a unique challenge. Ultimately, despite the fact that the parents got along very well considering their disagreement on this issue, at a Court Conference, the parents agreed that the decision had to be made by the FRSC Judge, so we addressed the logistics and timing of the final Court Conference.

The FRSC Judge asked the parents and the child’s attorney in advance of the final Court Conference to exchange comprehensive proposals for the final decision by the FRSC Judge and provide them to the FRSC Judge. This gave the parents and the FRSC Judge a clear understanding of what each parent would ask the FRSC Judge to order. The FRSC Judge also gave each parent time to submit whatever documents that parent wanted the FRSC Judge to review as exhibits in advance of the final Court Conference, and required that the parents exchange these documents with each other.

The relaxed rules of evidence allowed the parents to select and prepare materials that were directly relevant but perhaps would not have been admitted if traditional evidentiary rules prevailed. For example, my client prepared a timeline regarding certain events, which eliminated his need to speak to that level of detail, which also gave his former spouse the information in advance so she could address the Court about it if she so wanted.  In addition, statistics regarding various school options from websites were admitted, all without fanfare. Most importantly, the FRSC Judge promised us that she would read these documents before the final Court Conference, and she did, so by the time that Court Conference occurred, she was even more familiar with the case. In a traditional trial, exhibits are not reviewed by the Judge until they are admitted into evidence, and often not until the Judge reviews the file after the trial is over, before issuing a decision. In a FRSC case, the Judge also has an opportunity to ask the parents and counsel directly for clarification of the contents of exhibits.

At the final Court Conference, each parent had an opportunity to speak directly to the Judge. My client prepared an outline in advance, and referred to his outline as he spoke. The other parent spoke more spontaneously, but no less effectively. Each spoke directly to the FRSC Judge (who took her usual careful notes) for approximately 30 minutes.  Then each of the lawyers had an opportunity to speak. I said nothing about the substantive issues, as the exhibits and my client’s statement covered the substantive issues thoroughly. Instead, I briefly commented on a few aspects of our proposed Judgment to explain the thinking behind certain provisions.

My client did not become the weekday parent, but the Judgment incorporated many of the provisions of his proposed Judgment, and was detailed and responsive in a way that clearly indicated that the FRSC Judge understood the subtleties of the situation and the need for clarity around parenting time and parent decisions despite the cordial relationship of the parents. The final Court Conference was truly a collaborative process, with the child’s attorney, Family Consultant, and Probation Officer each weighing in on the ultimate issue in a way that was supportive and recognized both parents in a positive way. The final Court Conference lacked the often sarcastic, painful moments of cross-examination that mark so many litigated trials, and I believe that the parents’ ability to speak directly to the FRSC Judge helped them feel that they were heard in full before the FRSC Judge made her decision.

When the FRSC Judge decides an issue, it does not mean that the FRSC process has failed. It simply reflects the reality that not all FRSC cases will reach a full agreement, and that some decisions need to be made by the FRSC Judge. In a traditional litigated case, the Judge may not hear from the parents until the trial at the end of a case, and that snapshot of information may or may not convey the whole picture effectively to the Judge. FRSC offers a respectful, collaborative, and efficient approach when the FRSC Judge is asked to decide, ensures that the FRSC Judge is fully apprised of the underlying facts and the personalities of the parents before she makes a decision, and incorporates the child-focused perspectives of the child’s attorney, Family Consultant, and Probation Officer.  

February 2021

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