Definitions of Legal Terms and Job Descriptions
Generally, all U.S. states share the same three-tiered court structure: The highest court in the state is the state supreme court. This court oversees the lower courts. The second tier is the district courts. The third tier is the magistrate courts, in some states called county courts or general jurisdiction trial courts. Magistrate courts deal with a wide variety of cases, such as traffic violations and misdemeanor violations. They also are responsible for decisions in cases concerning domestic relations, including divorce, alimony, child support, and child custody. When magistrate courts are dealing with family matters, they are often referred to as family courts or family law courts. Evaluators, mediators, and case managers generally work for magistrate courts.
Because court systems can vary, it is important that each forensic professional understand the court system in the state in which he or she practices. But equally important is understanding the language of the court. The legal system relies heavily on jargon, but in this chapter we will discuss only those terms and phrases most commonly used in family law. If you run across a term not explained here, don’t assume that you know its meaning—look it up. Remember that different jurisdictions in different states can use different terms than those presented here. Always familiarize yourself with local terminology. Additionally, consider purchasing a dictionary of legal terms or finding one online.
AFCC: The Association of Family and Conciliation Courts, a professional organization dedicated to the resolution of family disputes.
Affidavit: A written statement made under oath by a party or witness. It is one way of presenting relevant facts to the court.
AKA: “Also known as,” used to list aliases, previous names, or alternate spellings of a person’s name.
Answer: A court document in which the defendant responds to the plaintiff’s complaint.
Appeal: A procedure whereby a person challenges a decision made by a lower court about his or her case.
Applicant: The person who first comes to the court asking for a decision, also called the plaintiff, petitioner, or complainant.
Best interest of the child: The standard a judge uses when deciding custody and visitation issues.
Case: A lawsuit or action in a court.
Case assessment conference: The first court event for both parties to a case that is in progress in family court. This conference—attended by each party, each party’s legal representation, and the judge—allows both sides to identify issues in dispute and future procedural steps, to appoint outside forensic professionals such as a custody evaluator or a mediator, and sometimes even to agree on a resolution to the case. The trial date can also be set at this conference. This conference provides both sides the opportunity to lay out their concerns and complaints before the judge so that everyone is on the same page. Not all jurisdictions hold case assessment conferences.
Case manager: A person, usually assigned by the court, who monitors and resolves parental disputes arising after an order has been entered by the court. Sometimes called a special master.
Case management directions: a set of directions given by the court to help the parties reach prompt and economical resolution, often written as a court order. For example, the court may direct both parties to see a custody evaluator and order that both pay half the evaluator’s fee.
Child: a person younger than age 18 (in some jurisdictions, age 16 for custody cases).
Child’s representative: A lawyer appointed by the court to represent a child’s interests in a case. This attorney, sometimes called a separate representative or guardian ad litem, attends all hearings and conducts the case in such a way as to promote the child’s best interests. The guardian ad litem is served all court documents, is involved in all negotiations, and must approve any proposed arrangements.
Child support: The amount of money that one party must pay the other party each month to help financially support the child. The amount of child support is set by the court according to certain established guidelines.
Complainant: The person that first comes to the court asking for a decision, also called the applicant, plaintiff, or petitioner.
Court hearing: The date and time when the case is scheduled to come before the court.
Court order: Instructions by a court that both parties must carry out certain actions. A court order, sometimes called a judgment or decree, can be either final or interim.
Custody: An arrangement, determined by court order, indicating where a child will primarily live and how decisions about the child will be made.
Custody evaluator: A licensed professional, usually court-appointed, who provides recommendations about custody and visitation to the court with the child’s best interest in mind. The evaluator is generally agreed upon by both parties.
Decision: Another term for the judgment of the court.
Defendant: The party who did not instigate the legal proceeding but who rather is defending his or her position against the claim filed by the plaintiff. Sometimes called the respondent.
Deposition: Testimony taken under oath, given outside the courtroom. A verbatim account (transcript) is made of the testimony.
Discovery: A process that requires either party to disclose to the other party all documents and witnesses relating to the case, including any written reports produced by evaluators or expert witnesses, so that they may be presented as evidence during the trial.
Divorce order: An order made by the court that dissolves a marriage.
Divorce petition: An application to the court for divorce. This application also includes the plaintiff’s requests for property division and for child custody and visitation arrangements.
Domestic violence: Conduct (either actual or threatened) by one person in a family towards another person in the family or that person’s property, if the conduct causes reasonable fear for well-being. Also called family violence.
Evaluator: A professional person who is ordered by the court to conduct a child custody evaluation. Usually this person is agreed upon by both parties. Sometimes called a custody evaluator.
Evidence: Testimony, documents, or objects presented to the court in support of a point.
Ex parte hearing: A hearing for which one party is not present and of which that party has not been given notice before the court. This type of hearing is generally used only in emergencies.
Ex parte order: Evaluators work under a No Ex Parte Order: The evaluator must include both parties (generally both attorneys) in any discussions about the case.
Expert witness: A professional person hired by one of the parties to evaluate an aspect of a case. The expert witness usually does not work under a court order to conduct the evaluation. The cost of the evaluation is paid by the hiring party.
Family law courts: Magistrate courts dealing with family issues such as divorce, child custody, termination of parental rights, adoption, and guardianship.
Family violence: Conduct (either actual or threatened) by one person in a family toward another person in the family or that person’s property, if the conduct causes reasonable fear for well-being. Also called domestic violence.
Final order: The order made by the court to conclude the case.
Guardian ad litem: An attorney chosen by the court to represent the child or children’s interest in a family law case. Also called a child’s representative.
In chambers: Discussion between the parties in the judge’s office rather than in open court. Any decisions made in chambers must be put on the record in court.
Interim order: A temporary order.
Judge: The person who makes the final decisions about the case and who issues a final order resolving and ending the case. Some states use a magistrate, a person who is not a judge but who is authorized to hear and decide certain types of cases. For example, family support magistrates hear some child support cases.
Legal custody: A relationship between a guardian and a child that is created by a court order giving a person legal responsibility for protecting and caring for the child.
Mediation: A dispute resolution process wherein an impartial trained third party helps the parties voluntarily reach a mutually acceptable resolution. In some jurisdictions, the mediation process is confidential and not available to the court.
Mediator: A professionally trained and impartial third party who attempts to help the parties reach a mutually agreed-upon resolution to their case.
Modification: An action requested by the plaintiff, the effect of which is to change the existing parenting plan. The modification request can include changes to the custody of the children, to the visitation schedule, to child support payments, or to any other aspect of the existing parenting plan.
NKA: “Now known as,” used in reference to a person once known by one name but who is now using another name, an alias, or another spelling of his or her name.
No contact order: A court order prohibiting contact by one person with another person.
Order: A court document compelling a person to respond or to otherwise behave in a certain manner.
Order of evaluation: A court order appointing an evaluator to perform a parenting time evaluation, also called a custody evaluation.