Can My Attorney Attend My Court Hearing On My Behalf

Mar 4, 2022 | Criminal, General | 0 comments

In North Dakota, custody orders—whether for equal residential responsibility (shared parenting time) or primary residential responsibility (when one parent has more than 50% of the parenting time)—are not easily modified.

Once a court has issued an order regarding residential responsibility, changing it requires a strong legal argument. Unless the parties agree to the changes, the parent seeking modification must file a written request to the court and prove their case.

What is the Burden?

The parent seeking modification must prove the following:

Material Change in Circumstances

There must be a significant change in the child’s environment or circumstances that justifies a review of the current custody arrangement. This can include:

- - A parent relocating
  - A child’s expressed preference to live with the other parent
  - A parent’s involvement in illegal activity or domestic violence
  - Changes in the health or safety of the child
  - A child’s development needs that the current arrangement does not adequately address

These changes must have occurred after the last court order was entered. Any facts or circumstances known prior to the order do not constitute a material change in circumstances.

Adverse Effects on the Child

A material change alone is not enough. A recent string of Supreme Court rulings has heightened this burden by requiring a demonstration that the child has experienced actual harm due to the current custody arrangement. This could include:

- - Disruption in the child’s daily routine or stability
  - Withdrawal or isolation
  - Behavioral problems
  - Decline in a child’s physical and/or mental health
  - Decline in the child’s academic performance or social relationships

A mere claim of sadness, anxiety, or other emotions without accompanying evidence of actual harm or detrimental effects on the child will not be enough to justify a modification. They must be supported by tangible, documented evidence, such as medical or school records, expert evaluations, or testimony from individuals with firsthand knowledge.

Modification is Necessary to Serve the Best Interests of the Child

Even after proving a material change and tangible harm to the child, the Court must still determine whether the modification is in the child’s best interest. North Dakota requires courts to consider several factors. For a more thorough analysis of what these 13 factors entail, check out our blog on the best interest factors: https://rosenquistlawoffice.com/blog/family-law/best-interest-of-the-child-factors/.

Conclusion

If you want to modify an existing order or have questions, having an experienced family law attorney at your side can be invaluable. Please get in touch with our office at +1 (701) 775-0654 or email us at lawinfo@rosenquistlawoffice.com to schedule a free consultation today.

*The information in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon.

If you are charged with a criminal offense, whether it is your first or your fourth, a misdemeanor or a felony, the thought of attending a court hearing might seem frightening or intimidating. However, in North Dakota, an attorney may be able to attend these hearings on your behalf, without you having to be present. This is dependent upon the severity of your criminal case.

How can my attorney attend my hearing on my behalf?

Within a criminal case, there are different types of hearings. These hearings may include an initial appearance, arraignment, motion hearing, preliminary hearing, dispositional conference, or even a trial. The practice and procedure of the criminal proceedings are governed by the North Dakota Rules of Criminal Procedure. The purpose of the North Dakota Rules of Criminal Procedure is to provide for the just determination of each criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay. However, there are some exceptions within criminal proceedings.

Rule 43 of the North Dakota Rules of Criminal Procedure refers to Defendant’s Presence. Rule 43 states when required, unless provided otherwise, the Defendant must be present at the initial appearance, arraignment, the plea, every stage of trial, and sentencing. This Rule also provides “exceptions” and allows the Defendant to not be present at certain hearings.

If the court permits, the Defendant does not need to be present under any of the following circumstances: Felony Offense, Misdemeanor Offense, Conference or Hearing on Legal Question, and Sentence Correction. It is very important to recognize that the court MUST approve the absence before the Defendant’s appearance is deemed waived. If the judge does not permit the requested absence, the Defendant MUST be present at the hearing.

Felony

Under Rule 43, A felony offense is punishable by imprisonment for more than one year. For the Defendant to waive their presence for a felony offense, similar to misdemeanors below, the Defendant must be advised of their rights listed in Rules 5(b)(1) and (2) and 5(c). The Defendant must also consent to the absence in writing. If these conditions are met and the court approves of the absence, the Defendant does not need to be present with his or her attorney at the preliminary hearing, arraignment, and entry of a plea of not guilty. However, the Defendant must be present at trial and sentencing.

Misdemeanor

Under Rule 43, a misdemeanor offense or infraction is punishable by fine or by imprisonment for no more than one year, or both. Like a felony offense, the Defendant must be advised of their rights listed in Rules 5(b)(1) and (3) and 11(b). The Defendant must also consent to the absence in writing. If these conditions are met and the court approves of the absence, the Defendant does not need to be present with his or her attorney at the arraignment, plea, trial, or sentencing.

It is possible for the Defendant to never need to attend a court hearing on a misdemeanor charge or an infraction if they provide written consent to their attorney to appear on their behalf. However, it is important to note that the Defendant ALWAYS has the right to be present at every hearing.

Conference and/or Sentence Correction

The Defendant does not need to be present at a conference. For example, a misdemeanor dispositional conference.

The Defendant does not need to be present at a hearing on a question of law.

Additionally, under Rule 35, the Defendant can waive their appearance at a hearing for a sentence correction. A sentence correction can include an illegal sentence, clear error, or a sentence reduction.

The legal system can be intimidating and complex. If you find yourself facing criminal charges, contacting a criminal defense attorney may be in your best interests as they can protect your legal rights throughout the process and help you obtain a favorable outcome. Contact Rosenquist Law Office at (701) 775-0654 or email us at lawinfo@rosenquistlawoffice.com to schedule your free consultation.*The information contained in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon as so.