Trial De Novo

[aworriedstepmom]

What is the name of your state? Wisconsin

My husband and his ex wife have joint custody and joint physical placement. They alternate weeks.

She has taken a job 130 miles away, it went to a GAL, who recommended that the kids be able to go with them.

But the family court commissioner, denied her motion to revise the judgement to award her primary placement and allow her to relocate.

Now she has filed a "Trial De Novo" what is that exactly...What I know is that now they will go in front of the circuit judge and have another hearing...but is their a criteria that needs to be met before a "trial de novo" be granted?

Thanks for you help

 

[snostar]

It means "new trial." The appeals court holds a trial as if no prior trial had been held. New evidence can be presented which was not included in the previous trial.

 

[aworriedstepmom]

So...can anyone file this if they are unhappy with the outcome of their case?

Or is just in family court?

Also....can the commisioners decision be brought up as evidence?

I feel so bad for his children....it is like they will have no peace.

Is their anything my husband can file to block this?

 

[adonahee]

There's a reason that she did this...

First, since the GAL recommended one thing, and the judge another, the matter really hasn't been settled. So she's appealing, either because she's hoping it'll go her way in the appeal, or she's hoping Dad will run out of money for attorney fees and will have to give in.
And second, has a new trial been granted?

 

[aworriedstepmom]

My husbands lawyer said that they have to grant her a de novo....although nothing has been scheduled yet....I'm not quite sure what happens...do they go in front of the judge and ask for the de novo, and then another hearing is set?

The FCC, said that the GAL report was not very passionate, and based on hearsay and not facts and legal criteria.

Can the 1st decision from the judge be brought in as evidence?

He won't run out of money, as his lawyer is a childhood friend and is doing it pro bono....I know, he is one of the lucky ones...otherwise, I have no idea how we could possibly pay these costs.

 

[adonahee]

That's excellent news for you....

As Snostar answered in a prior post today, Yes, you should be able to use the prior decision by filing a Judicial Notice of Exhibit from the prior court proceeding. True, Snostar? Or would they request a different motion? Your husband's attorney should know what to file.

It sounds like this could definitely go your way the second time around. Good luck.

 

[snostar]

The FCC, said that the GAL report was not very passionate, and based on hearsay and not facts and legal criteria.
Can the 1st decision from the judge be brought in as evidence?

The general rule is that an appeal must be based solely on "points of law", and not on "points of fact". Appeals are frequently based on a claim that the trial judge or jury did not allow or appreciate all the facts; if that claim is successful the appeal judges will often order a trial "de novo".

He can file a Judicial Notice of Judgement (or Ruling) from a prior court proceeding. The judge will decide whether or not it will be admitted into evidence. So, it's similar Adonahee.

 

[aworriedstepmom]

Does the same go for the GAL's reccomendation? Will it be considered as evidence as well?

I also have another question....when I sent in my questionaire to the GAL, I only put the positives qualities of my husband as a man and a father. There was much negative that I could have put in about the children's mother, but decided to take the high road, and only say they have different views on parenting....can I still contact the GAL and give him new information? Or am I out of luck?

 

[stealth2]

Does the same go for the GAL's reccomendation? Will it be considered as evidence as well?

I also have another question....when I sent in my questionaire to the GAL, I only put the positives qualities of my husband as a man and a father. There was much negative that I could have put in about the children's mother, but decided to take the high road, and only say they have different views on parenting....can I still contact the GAL and give him new information? Or am I out of luck?

Why is you husband not the one filling out the interrogatories?

 

[aworriedstepmom]

Maybe I am calling it the wrong thing....when he met with the GAL the first time, the GAL told him that he needed at least 6 people who could do like a personal reference for him....so in the mail I recieved a "CUSTODY/PHYSICAL PLACEMENT QUESTIONNAIRE ..it asked my relationship to the parties, how long I have know them, how much contact I have with the children... What are the good points of each parent for providing a good, stable, appropriate home for the children? For the parent that you referred you, what are the good points of that parent for providing a good, stable, appropriate home for the children? "...and their were other questions...I could send you it if it would better explain things


I sent in my questionaire, and requested an interview, which his assistant told me wouldn't be needed, and then the GAL called me the Sunday before handing down his decision on the following Tuesday and talked to me for 20 minutes....I was the only one of the six people who sent in the "CUSTODY/PHYSICAL PLACEMENT QUESTIONNAIRE" that he talked to.


I was told by my husband's lawyer not to bash the other parent. So I didn't.

Does that help?

Or am I still way off base?

 

[stealth2]

No, that makes sense. Our GAL only required each of us to fill them out, so that's what confused me.

 

[aworriedstepmom]

Can I call the GAL and ask for an interview....or since he has already given his recommendation am I out of luck?

The ex-wife told the GAL that I was being abused and being controlled by my husband....he never asked me about any of that, and threw that at my husband during the hearing....shouldn't I have the opportunity to clear the air? (yeah, I know, in a perfect world I should have, but reality bites)

Furthermore, if the GAL had information that I might be in danger, shouldn't he have done something to help me get out of it? I'm a teacher, and I am mandated to contact child services if I think a child is being abused or if a child tell me that they are living in a house where abuse is taking place.

And...too....since a de novo hearing is like the other trial didn't take place, will the GAL recommendation be used as evidence?

This is all confusing....

 

[LdiJ]

Can I call the GAL and ask for an interview....or since he has already given his recommendation am I out of luck?

The ex-wife told the GAL that I was being abused and being controlled by my husband....he never asked me about any of that, and threw that at my husband during the hearing....shouldn't I have the opportunity to clear the air? (yeah, I know, in a perfect world I should have, but reality bites)

Furthermore, if the GAL had information that I might be in danger, shouldn't he have done something to help me get out of it? I'm a teacher, and I am mandated to contact child services if I think a child is being abused or if a child tell me that they are living in a house where abuse is taking place.

And...too....since a de novo hearing is like the other trial didn't take place, will the GAL recommendation be used as evidence?

This is all confusing....

Yes, the GAL's recommendation would be used as evidence. In most courtroom's the GAL's recommendations are some of the most significant evidence.

 

[aworriedstepmom]

Funny thing is....there is nothing in the GAL's report about abuse. Nothing...not even an inkling....

It says the kids are very balanced, well adjusted, and have a good relationship with both parents. They do well in school and have many friends. They have a very close relationship to their family in the area where they live....

And then in the end he says they should move with their mom.

And the court commissiner says that such a move, although professionally for their mom, would be good for her, but would distrupt the realtionship that the kids have with their father....

So he denied the motion.....

From what I am understanding...the GAL recommendation might carry more weight then the commissiners ruling at the de novo hearing?

 

[snostar]

From what I am understanding...the GAL recommendation might carry more weight then the commissiners ruling at the de novo hearing?

There is also the possiblity that the GAL will change their recommendation based on the commissioner's ruling. It never hurts to hope.