What is a Review Hearing?
As per Minn. Stat. § 260C.201, at the time of any hearing (other than a hearing in adoption proceedings) in a juvenile protection proceeding, the Court appointed Judge or Referee must state: Upon any appeal from a review hearing, the district court must obtain material evidence regarding the sufficiency of a trial court’s determination as to the best interests of the child. The record must be reviewed to determine whether there is substantial evidence to support the trial court’s determination and whether the trial court misapplied the law to the facts found . Appellate courts afford no deference to the trial court’s best-interests determination. Id at *6. The Minnesota Supreme Court held that its interpretation of "review" under 260C.201, subd. 11 was to "allow, at the district court’s discretion, a review hearing to consider facts not considered by the trial court so that the appellate court may act upon a record sufficiently developed to permit an independent consideration of the trial court’s findings." See, Minn. Court Policy and Procedures for Juvenile Protection Proceedings (April 1, 2011).
How the Review Hearing Process Works
The process of the review hearing is somewhat similar to the process of trial in Superior Court. All parties to the custody action are entitled to participate in the review hearing. In most cases, the Review Judge will be assisted by a Custody Master who will sit at counsel’s table during the hearing. If you are represented by an attorney, he or she will be permitted to make oral argument at the hearing.
Under local rules, review hearings are limited to one hour. Testimony from fact witnesses is not permitted. The Review Judge and Custody Master may refer to the Custody Services Evaluation Report in conducting the review hearing. Testimony from parties is limited to direct examinatio; it is not in the interest of justice to permit cross-examination of parties who have already testified for the purpose of resolving conflicting testimony. Because the focus of the review hearing is on whether a material change in circumstances has occurred, Review Judges are cautioned against providing broad guidance to parties regarding the best interests of the children.
Once you have filed your written request for a review hearing and paid the required fee, the court clerk will provide you with a date that is available on the court’s review hearing schedule. Typically, review hearings will be scheduled several weeks to several months after the request for a review hearing is filed. Assistant County Solicitors participate by presenting the Department’s position at the review hearing. Therefore, you may notice that review hearings are delayed when the Department has a heavy review hearing schedule.
Types of Review Hearings
Probation Review Hearings – These often occur within the first six months following your sentencing to probation. The Judge must review your probation and may make orders to help you succeed, i.e., to have you do therapy or counseling. These hearings can also extend for issues such as whether you have completed community service or paid restitution. A Review Hearing may be set specifically to address an allegation that you violated your probation terms and conditions.
Establishments Hearings – A relatively rare hearing, this type of hearing may occur to determine whether you’ve committed a violation of a "regulatory statute." This is a type of law that allows an agency or department to make rules about certain activities, such as operating a business. These hearings determine whether there is clear and convincing evidence about violating that law.
NGA Hearings – An acronym for "Non-Guidelines Adjustment," this type of hearing occurs when either you or the prosecutor believes that the guidelines for sentencing should be changed in your case. The argument for a change might include evidence that your case had unusual circumstances, either of aggravation (which are worse than normal) or of mitigation (which are better than normal). For example, you may be able to prove that no one was hurt or that you acted in self-defense.
Custody Review – As a parent or guardian of a minor child, you are entitled to a review of your current custody order. This hearing obtains new information for the judge if evidence suggests that a change might be required, such as excessive contact with the legal system or substance abuse.
Probation Violation Hearing – If the prosecutor believes that you violated the terms of your probation, they may file a complaint that you did so. That filing leads to an arrest warrant or summons for you, after which you’ll have a hearing to determine if you did, in fact, violate your probation.
What Happens at a Review Hearing
A review hearing is held to determine whether the temporary protective order should continue or be modified. This means that per Texas Civil Practice and Remedies Code §81.006, the judge or magistrate can either continue the protective order, limit the conditions imposed by the order or terminate the protective order. The judge or magistrate cannot add conditions to the current protected order , however they can issue a new protective order with new conditions. If the order is terminated, it is as if it was never in place. For example, you will regain your rights to a concealed carry permit, have your names removed from databases that list people with protective orders, etc. You can have the court costs of the protective order hearing taxed against either party.
How to Prepare for a Review Hearing
In advance of any scheduled review hearing, the individual(s) involved should review the GAL’s file, any other files containing evidentiary documents, and gather their own documents. Review these documents to determine if they should be submitted as exhibits. Cull from these files any new documents or records, or anything that has changed since the initial hearing. Generally, different specialists will have different forms of documentation they can provide concerning a client’s progress. This can include written reports, forms filled out at regular intervals, and other documentation relative to a client’s ongoing treatment. It’s a good general practice to review treatment by insurers prior to a review hearing for the services they are willing to provide. For example, insurances are generally happy to provide prescriptions or other treatments like counseling, but may resist more expensive forms of treatment. Although a good attorney can advise as to what paperwork should be provided to the Court in advance of a review hearing, clients can benefit from consulting with an attorney in advance of the hearing. For example, it may be in a client’s best interest to subpoena additional medical records. An experienced lawyer can advise as to whether certain conditions are considered to be chronic or if there has been an increase or decrease in severity in the days leading up to the hearing. Understanding whether this is a new or ongoing problem can help you avoid repeating yourself in front of the Court and ensure that everyone hears your plea for help.
The Effects of a Review Hearing
A review hearing has the potential to impact your entire case. When a case is reopened and a review hearing scheduled, the judge assigned to the case generates an order reviewing all matters before the contract so it is highly likely that the judge will review all matters pending even if the remaining matters are not specifically addressed at the hearing.
At a review hearing the judge can order any number of things, including resolution on issues related to the child, physical placement, child support, past arrears, past tax issues, retroactive child support, or any other item the judge deems relevant. When the party who moved for review succeeds on their motion, they may see significant changes to their case. Even if your circumstances haven’t changed significantly, you’re at risk of changes to the contract and sometimes this can really hurt people.
If you have unresolved issues related to divorce or post-judgment matters and it has been some time since those issues were decided, the state may begin collecting information from you, your employer, and financial institutions in order to schedule a review hearing.
With this in mind, you should always maintain complete records on any and all pending issues even if it has been years since anything has been decided. Past tax returns (several years), proof of income, proof of expenses, and any other information related to the open issues should be organized and ready to present to the court. If the hearing is being held in Milwaukee County, all parties must file a Disclosure of Financial Interest. Payment of child support and/or maintenance may be withheld from sources of income including unemployment compensation, pension benefits, retirement funds, social security and disability payments. Bank and personal asset records may be attached to requests in order to prevent a person’s attempts to hide or remove nonexempt assets.
Owning exempt assets such as the homestead, cash value insurance and pensions does not preclude the court’s ability to use some or all of the value of the assets in the calculation of child support and/or maintenance. A review hearing provides the court with an opportunity to determine the reasons for the arrears for the payment of obligations ordered when the original judgment was entered . At the hearing the court may re-sentence a party and establish future means of collection.
Clients frequently ask about when their case will be reviewed. In some counties, parties can file a motion with the court to request a review hearing. However, in other counties, the District Attorney’s Office requests a review by filing an application in Juvenile Court. In many cases, these reviews are scheduled after a financial review is performed by the District Attorney’s Office as part of program to ensure that the support obligation is correct. Typically, this involves ordering a DWD report and a follow up financial disclosure to confirm the accuracy of the information contained in the report. The review hearing will evidence the DWD report and any agreements reached by the parties as to the correctness of the report.
The party who has custody of the children will generally not have to appear unless the party is contesting the results of the DWD report. When a review hearing is requested by the District Attorney’s office, the specific family court commissioner will issue an order to appear. The order, which is usually issued up to a year in advance, requires the parties to appear before a family court commissioner on the date set forth. While parties do not always understand the purpose for the hearing and fail to appear, when they do fail to appear, it is crucial for the party to contact their attorney before the hearing occurs. If the party fails to appear without the prior notice and agreement of the parties, the court may make an adverse finding against that party or an administrative order regarding the amount of arrears owed, child support and/or maintenance owing.
Sometimes a hearing will be held a year past the time a person received a notice of the review hearing. For instance, a client may receive a notice of the review hearing during the holiday season in 2017 and their hearing is not held until December of 2018. The party fails to appear and the court makes a finding that the order is accurate when the party wasn’t even aware there was any issue with the order. The review hearing impacted them significantly and despite their good faith efforts to comply with the order, they saw an enforcement action taken against them.