ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF

November 24, 2010 § Leave a comment

I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts. 

The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors.  In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”

The Martin v. Coop factors are here.

A guide to the intricacies of grandparent visitation is here.

The retrial in this case may be due to a simple oversight on the judge’s part.  Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.

When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one.  If you do not have proof on every factor, develop as many as you can.  If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so.  If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.

You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.

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