Getting an Order of Protection
The courts make it very easy for a person to get an Order of Protection against a spouse, former spouse, or intimate partner. This is good, in that it allows someone who feels in danger to get help without long delays or the need for professional help. This is in line with Arizona’s goal of allowing the people to be able to solve their own problems without incurring high legal costs. However, there is a downside to to the ease of being a “Pro Per” litigant (meaning, you represent yourself without an attorney).
The normal process of getting a court order is to make a request to the court in a Petition, which then leads to a hearing where the other party can answer, and give reasons why the petition should not be granted. The court then renders a decision based on what has been presented. The legal process of an Order of Protection (OOP) is a little different than the usual petition to the courts – and that can lead to some confusion for the Pro Per petitioner.
With an OOP, the requesting person fills out the petition, and the order is then granted automatically. However, the other party – the one whose behavior is being restricted, must be informed of the OOP, and given an opportunity to challenge it. If they challenge the OOP, then a hearing is set, and the petitioner must then convince the court to retain the OOP, and the responding party may present evidence for reasons not to grant.
This hearing will follow the usual rules of court procedure. You may represent yourself, but if you haven’t spent time in court, these rules and procedures can be difficult, and it’s a good idea to get representation before your hearing. A lawyer will make this go easier and a lot less scary for you – but that lawyer is going to be limited by what was in the petition you originally submitted. If that petition was written poorly, even a good lawyer may not be able to save your OOP, and you could have it dismissed.
So while you can Do It Yourself, it’s also a good idea to get professional help. The more important your legal issue is, the more you should think about getting an attorney to make sure it’s done right. With many legal cases, if you lose, you don’t get to try again.
Some lawyers will offer what is commonly called “unbundled services” – meaning that the lawyer is willing to do work on a portion of your case. This can include the drafting of your petition or motion, or just reviewing what you are going to submit to the courts, or even coaching you on representing yourself in a hearing.
A little guidance in the beginning can save you a lot of pain and grief later. Consider contacting an attorney for a review or some counseling. If the lawyer you used in the past doesn’t do unbundled – don’t be discouraged, there is always a right attorney for your needs. We’ll get you through it.
(Why I will do a default divorce for less than $1000)
At the State Bar Convention this last summer, we had a session on the high cost of lawsuits, ability to retain lawyers, and the general problem that lawyers are available to the rich and the poor – but not the vast majority who fit in between those two stations. Within the legal community, we call this “Access to Justice”, and it’s a serious problem.
Approximately 14% of the residents of Maricopa County can qualify for free legal aid. This is a little higher than the rest of the country, as parts of the metro area are still in recovery from the economic crash. On the other end of the spectrum, only 5% of the people can afford to pay an attorney the average hourly rate of $250/hr, without going into debt. This leaves 80% of the people of this county, stuck with few options for getting legal help: they can represent themselves without help and risk making a serious mistake in court, or they can go into debt and possible bankruptcy by hiring a lawyer. As a Family Law Attorney, I know the risks of representing yourself, particularly when the other side has a lawyer working for them. But if I’m asking for a $5000 retainer up-front, only 5% of the population are going to benefit from my counsel without going into debt, even if this could be a simple default matter.
A lot of people seeking legal help will then turn to a Document Preparer to help with their divorce paperwork. While many of these services will get your divorce completed, they are not permitted to give out any legal advice about what you should do. A default divorce between two people with no children is a relatively simple task – if you know what you are doing. If you DO NOT know what you are doing, you can leave yourself in a very bad position as far as your property rights and taxes go. If there are children, it gets more complex, and if you fail to consider all of the rights and responsibilities, it makes co-parenting a much harder job. These are issues that are more about getting help making decisions, based on your rights and responsibilities – this is Legal Advice, and you need it. You need to talk to a Lawyer, before things get complicated.
I have written other articles about how there are ways to keep these costs down, but that’s only the tip of the iceberg. We, as Lawyers, must be a part of the solution to the problem of access to justice. This is why my services in default family matters is priced at the same amount as Doc Preppers charge. Everyone going through a divorce needs some advice, and Lawyers have a responsibility to assist the 80% in the middle, even if it’s just through consultation rather than full representation.
As attorneys, it’s time we take a look at our prices. Not all matters are the same, and we shouldn’t be stuck on a fixed rate for everything. Many other professions use a sliding scale, and alter their bill rate based on what the client is capable of paying. We have a responsibility to the public at large to promote justice and a more civil society. A big part of that responsibility, is making sure that more people can talk to lawyers without fear of big bills.
I believe in Access to Justice. The Potter Law Firm will get you through it.
Trouble is expensive – whether it’s car trouble, health trouble, or legal trouble, it’s going to cost you. Knowing how expensive it is, and knowing how little you have in the bank for such emergencies, makes most reasonable people want to hide under the blankets and hope it goes away. Most of the time, the trouble doesn’t go away – it usually gets worse. It can be a toothache, a funny rattle under the hood, or process server handing you papers; you know it’s going to be an expensive problem.
The median hourly rate for an attorney in Arizona is $255 per hour. Just knowing this is enough to discourage a lot of people from even picking up the phone for a free consultation. And then there is the advance deposit, which could be more than a year’s worth of discretionary income. Some matters can be dealt with using a contingency fee arrangement (where the payment is made only after the case is resolved), but this is only available in some areas of law. Family law and criminal matters cannot be paid for on contingency. If you do make it through the consult, the payment options may leave you feeling that legal help is out of your range. You do have options – maybe more than you think.
If you are indigent, living below the poverty line, then there are legal aid organizations that can help you. But these groups rely on state funding, and are seeing their budgets reduced every year – which makes it hard to qualify if you are only *somewhat* desperate. But what about people who are working, and just aren’t making that much money? Well, since wages have been stagnant for my entire adult life, this is a common situation. You have different options, depending on where you are on the income scale.
The Working Poor – those people who are not homeless, but make under 250% of the federal poverty guidelines, can qualify for the Modest Means project. Modest Means isn’t in every state, but it’s a widely available resource. If your income qualifies (that’s an annual income of $60,624 for a family of four), you can get a low price, one-hour consult with an attorney practicing in the area you need. In Arizona, that one hour costs only $75. If you are prepared, have done your research, and have your questions ready, you can get a lot out of an hour with an attorney. The consult is usually done at the lawyers office, so you are just like any other client, getting that same level of counsel for your troubles.
After the hour consult, the attorney may offer to take on your case. If the attorney makes this offer, the representation will continue at the modest means rate ($75/hr, here in Arizona). Not every lawyer will make the offer, but there’s no harm in asking. At the very least, you can ask for another 1-hour consult later on.
Modest Means is just one way that your local state bar and legal education organization are trying to bring good legal counsel within reach of working families. And you may be surprised by the caliber of professional you are getting for this low price. Many experienced lawyers are a part of Modest Means – it’s a way to give back and to promote better access to the law.
If you don’t qualify for Modest Means, or if your state doesn’t have such a program, what do you do? There are still ways to get legal assistance in solving your problems – and dealing with trouble is a better plan than hiding under the covers. More strategies for getting good advice for less will continue in the next post.
-Trail Potter, Esq.
2015 Federal Poverty Guidelines: http://aspe.hhs.gov/poverty/15poverty.cfm
Arizona Modest Means Project: http://www.azflse.org/modestmeans/
Before I began a sole practice in earnest, I worked a contract for the Arizona Dept. of Child Safety – more often known by their former letters: CPS. It’s close to the IRS for most maligned state agency (although the National Security Agency is trying), and like the IRS, it’s a necessity. I still don’t know the inner workings of the tax collectors, but my 9 months inside DCS gave me an insight to how the agency works, and the people who do a very hard and often thankless job. I’ve also had a view of the failings and flaws in their work. Now that my work there is done, I want to address a rare but dangerous problem: false reporting.
DCS exists to protect children from dangerous environments created directly by, or due to the neglect of, the parents or guardians of the child. This power to take a child away from the parents is in constant tension with the parents rights over and to their own child. No one is happy to have a government official take away anything of theirs, but to take away a child leaves parents scared and desperate. Often, these are temporary custody situations, where the child is placed with a relative guardian while the danger is assessed, and often returned to the parents. Many times, this danger is from drugs, and DCS provides rehab, counseling, and resources for parents who need help.
Let me assure you – there are very dangerous situations for children in the city of Phoenix, and there are parents whose behavior would terrify you. The people inside DCS all know how bad it can be – and whenever a child dies while under DCS investigation, every single employee of the agency is sent an email of what happened. It’s a constant reminder of what is at stake. Yet with so much riding on this, DCS budgets are always on the chopping block – case managers and parent aids are stretched thin and over-worked. Our new governor, Doug Ducey, has promised to cut the budgets further, leaving more children in danger, and fewer investigators to work on cases.
Although it is rare, sometimes these investigations are triggered by one of the parents against the other parent, during or after divorce, without a legitimate basis. The intent is often to use a DCS case to influence a custody outcome in family court – to move the ball closer to the goal. Sometimes this is done after a divorce, as part of a strategy to petition the court for a change in custody – and other times it’s done while a divorce is pending.
I’ve spent time preparing court documents in these cases, and it doesn’t work. A report can trigger an investigation, but the process will uncover a false report over substantial danger to a child. This discovery will be reported to the judge and any court appointed advisors in the family law case – in other words, it’s going to cause a lot of pain, expense, trauma for the entire family, and will mostly likely backfire. Filing a false report with DCS is a Class 1 misdemeanor and is punishable by up to six months in jail and a fine of up to $2,500. (Ariz. Rev. Stat. §§ 13-707, 13-802.) I’ve seen this happen.
The greater tragedy is that each false report takes attention away from real danger to children in frightening circumstances. As resources are stretched thin, the time it takes to uncover a false report drains the time and budget that should be used on cases where there is an ongoing danger to the child’s physical or emotional well being. DCS is there for the children of this state, not to be a used as a tool for parents working out their anger. Additionally, a DCS investigation won’t just stop once it’s been started, so the children will also be dealing with investigations, examinations, case workers asking them a lot of questions, and you ultimately run the risk of having the child removed from both parents, and placed into foster care.
If you are in a divorce, or have an existing custody agreement, and you have problems with the other parent – how they live or who they live with – there are other options. Mediation is a way parents can work through problems without court involvement. Private mediators can find resolutions for a lower cost than court involvement, and they can do it faster – which saves in the emotional costs to you and the children. Look into mediation before doing something you may regret. Think twice before filing a false report with DCS.
REMINDER: Mediators are NOT certified in Arizona – so ask about your mediator’s background and training. Are they knowledgeable in child issues? Are they a licensed attorney? Do they have a behavioral health background? Some conflicts are more about legal issues, and some are more about the psychology of the parents – so choose the right mediator for the problem. I am a Texas certified mediator with a high resolution rate in both civil and family matters. Contact the Potter Law Firm, we can help.
-Trail T. Potter, Esq.