One of my very first cases in the prime court of Tirana was a custody case in 2004. A pro bono case.
The case clear interacted between more law categories, something at that time never bothered me, without knowing I was living the freedom to use and interpret the law something unique and so very valuable. My customer was a mother of two, out of marriage, daughters. She got sued by her children's father, who was extending a prison sentence, asking now to get sole custody!
I don't ender details about the plaintiff's lawsuit and his arguments. The point, it's clear the reason, why he submit such a request exactly at this moment, and for me was clear what should I have to prove.
In a free law system, it's enough to prove that a request for a process is not legal or is not the real target. For me was clear I had to prove the father does not really care about the kids and explain the real reason for submitting that lawsuit.
The case requires a series of procedures before arriving at the questions. There was necessary to prepare expertise from a psychologist to ensure that the mother, who was sued, take good care of her daughters, and at last 2 court hearings with formal expressions in front of the judge, who got known with the case during those two first hearings.
There were overall four court hearings. The first two were for the presentation of parties' positions, where I did not yet express my real strategy, but only my dissension with the plaintiff's lawsuit and his used arguments, which got, already, answered from the psychological expertise. I waited up to the third hearing to question the plaintiff.
The third hearing took place not in the judge's office as did happen on the first two hearings, but in a real courtroom. The plaintiff was carried from the prison accompanied by the police force.
As my turn come to make my questions I directed to the plaintiff, asking for the reason he had to extend sentence in prison, direct his lawyer objected as nonrelevant with the case, I explained, we need to get know who exactly the plaintiff is, finally he is requesting custody, claiming the mother as unable to raise the children, the court has to know why the plaintiff is extending sentence in prison, the judge sustained the objection, explaining that the prison sentence of the plaintiff is known to the court and asked me to keep on the case. I could make more questions about his record during his sentence, but I never really search to find out about his in-prison behavior. Instead, I got direct to my point asking the date of his daughter's birthday. His lawyer tend to object, but the judge didn't let him talk, she wanted to hear what the father had to say!.. but he didn't, he didn't exactly know when his daughters' birthdays are, for which he required full and sole custody!
- Your oldest daughter visits the school, is that right? What class is she in? What is your daughter's favorite lesson in school, what she likes to play with? what is her teacher's name?
And finally, how do you think about your role as a father for how long you are in prison and how after you will be a free man again.
Plaintiff: the time in Prison is not gonna last long after I get custody. After I'm free again, I plan to work as a driver to support my family financially.
- How long do you think is going to last your time in prison, after your get custody?
Lawyer: Objection, nonrelevant
- Let me rephrase, who informed you that you will get out of prison, after getting your kids' custody?
Plaintiff: I just know it!
- is that the reason why you submit the custody request to get out of prison? you don't even bother to know about who your daughters really are, instead, you are using them to get yourself out of prison!
People who ignore the invitation of the Defence Ministry for serving the armed force in Albania, are committing a crime and need to extend sentence in prison. Man with family and children are obligated to serve less time or not at all.
It was clear to me the real reason for submitting this lawsuit. There wasn't any worry about the kids but the immoral use of kid's existence after a long absence and all this in an amateur and rough way not even bothering getting the elementary knowledge about the children their custody was requested!
The first part of my strategy wasn't of course to ask only about the children's birthday, I suspect he wouldn't know, but I couldn't be sure. The lightness of his answer, like it's not any big deal to know his children's birthday, gave me the desire to attack the plaintiff with a sere of questions, were clear to me, he didn't know the answer. My next category of questions was the legal advantage he would enter after becoming officially a father, winning the right to request termination of his sentence.
His lawyer's objection, "argumentative, the plaintiff is not obligated to answer" couldn't change the impression in the courtroom, now become clear to everyone what was this case about. The plaintiff didn't answer anything and I turned to my sit saying, "no further questions my Horner". On my conclusions, which I submitted in written form the next week, I explained the real reason for this lawsuit. The judge decided to reject the custody request, submitted by the father. And allowed the kids to keep living with their mother.
A case I never forgot, along the years. In fact, I wasn't prepared as much I should. There was a large thematic to ask about like why he never married my customer, did he recognize the children as the law requires in case of children out of marriage, if he sees them if he talks to the kids, or just if the kids really know him as there father!
He wasn't really prepared for the questions I made, he was prepared only to explain how he will support his family after getting out. In his lawsuit, he explained the support he will get from his mother for raising the children, trying to prove the children's mother was unable and unresponsible for the kids. The move of his girlfriend to occur in court represented by a lawyer surprised the plaintiff and his mother who bet on her extreme poverty and believed she wouldn't submit any legal reaction to the plaintiff's lawsuit, but I did.
The fourth hearing took place in the presence of the lawyers only. This hearing was to submit the parties' conclusions and present them in front of the judge who gave her decision a couple of days later.
