Welcome back to another entry in our ongoing blog series about enforcing divorce orders in New York. This time we are going to discuss the typical components of an Order to Show Cause and how to draft them in a way that is the most beneficial to your case or argument.
The Order to Show Cause to enforce an order is composed of several parts:
- The Order to Show Cause itself, which is an actual court order to be signed by the judge.
- Supporting affidavits (usually of the client, any witnesses, and possibly by the attorney).
- Any supporting documentary evidence that can be attached as exhibits (police reports, photographs, emails, etc.).
The Order to Show Cause has several sections. First is a statutory warning in a specific type and font to the evil-doer noting that he or she may be held in contempt. Then there is a directive that they appear before the Court at a specific date and time. After that is a
list of the things the client wants the Court to do, such as holding the other party in contempt, sending him or her to jail, enforcing the order, and anything else they might request. The next section is
actual orders of the Court that go into effect when the Order to Show Cause is signed and served. These can be things like temporarily suspending visitation until the parties appear before the Court on the Order to Show Cause (such orders are called
ex parte relief in legalese).
Although the attorney may ask for ex parte relief in the Order to Show Cause, the Court is not required to grant it. The Court is always free to strike out those provisions. Finally, at the end of the Order to Show Cause is a place for the judge to sign it.
Closer Look at Affidavits in Orders
Affidavits that must be attached to the Order to Show Cause are sworn statements of someone with personal knowledge, telling the story of what happened and why the Court should grant the relief requested. Usually the client sits with his or her attorney and helps to craft his or her affidavit and put it in a format acceptable to the Court. Any witnesses to the alleged violation may also be asked to swear to an affidavit of what they saw or heard. Sometimes the attorney may also do an Attorney's Affidavit (or Affirmation). These affidavits tell the story to the judge.
Other times, an attorney may draft a Memorandum of Law to attach to the Order to Show Cause. This is a formal legal document that cites and explains the law to the judge. It informs the judge of the applicable laws and legal precedents, and argues why the judge should rule in favor of the given party.
Last But Not Least
The final part of an Order to Show Cause are the exhibits. Just about anything can be attached as an exhibit. Very often, police reports, Child Protective Services reports, texts, emails, and photographs that help tell the story are used as exhibits. These are documents that help to corroborate the story the client is telling to the judge. Exhibits are often persuasive when the client alleges one thing and the opposition says it never happened.
Imagine that you were a judge, and person A said, "Person B punched me in the face in violation of the order." Then person B says, "No I didn't." If there is no bruise, or anything else, who should you believe? But your opinion would probably change if person A had attached a police report saying person B was arrested for punching them in the face. Maybe they also thought to attach the hospital report from their x-rays showing they had a fractured orbital bone? Now the story starts to come together.
Even though you aren't preparing for a criminal trial, or even a civil one, constructing a proper Order to Show Cause in your family law case can feel as strenuous and intricate as any other courtroom process. If you need some help, let The Law Office of Charles A. Messina know and you can retain a professional Buffalo family law attorney to guide you. Dial 716-980-1959 for more information – and be sure to
visit my blog frequently to catch the next entry in this series.