How To Transfer A Family Law Case To Another County?

How To Transfer A Family Law Case To Another County
File a Motion with Supporting Declaration In order to transfer a family law case to another county, one party must file a motion, also called a request for order. This motion is the legal process of asking the court to move the case to another court.

How do I change my family court location?

How to File a Change of Venue in California Family Law – ” Venue ” describes the specific court where your case is filed and ultimately resolved.U.S. law has extensive jurisdictional rules for what qualifies as a “proper” venue to file a case, depending on the people and facts involved.

A knowledgeable family lawyer would be intimately familiar with these rules and can help steer you in the right direction. Your family law attorney can also help with the process of changing the venue of your case, if necessary. To get a change of venue in a California family law case, you must file a motion for change of venue with the court where your case is currently filed.

The court will consider your motion (otherwise known as a ” request for order “) along with your supporting declaration,

How do I transfer a family law case to another county in Texas?

What is the process for having a case transferred? – File a motion to transfer venue in the court where the SAPCR was finalized. Include an affidavit explaining why the transfer is needed.

Can you switch court locations?

Change of venue is the transfer of a legal action from one county to another county for trial. In criminal cases a change of venue is permitted if, for example, the court believes the defendant cannot receive a fair trial in a given county.

How do I file a motion to transfer in Texas?

See Texas Rule of Civil Procedure, Rule 87. Write the date and time of the hearing on the Motion to Transfer Venue and Notice of Hearing form. Fill out this form completely in blue or black ink (except for the judge’s signature). You will ask the judge to sign this form to grant the motion and transfer your case.

What type of motion is used to move a case to another jurisdiction?

What is a Motion for Change of Venue? A motion for change of venue ensures that a case is heard in the best location. There are two basic requirements that must be met before a court can hear a case. The first is jurisdiction, which means that the court has the which affect the rights of the parties in the case.

What are the requirements to change the venue of the case?

Grounds for Change – To achieve a change of venue, defendants typically have to show a reasonable likelihood that they can’t receive a fair trial. That reasonable likelihood is usually due to pretrial publicity, but it could have to do with some other event making it almost impossible to find an impartial jury.

Venue changes can also happen when the current venue is simply the wrong one. For instance, if the crime occurred in County X, and the case is currently in County Y, County Y most likely lacks jurisdiction, If so, it may have to transfer the case to County X. Some states, as well as the federal courts, allow a change of venue for the convenience of the parties or witnesses, typically because some or all of the witnesses reside elsewhere.

But the inconvenience usually must be substantial before a court will change venue for this reason alone. Other reasons for a change of venue include:

a judge who is prejudiced against the defendant, and in capital cases, a jury pool that’s predisposed for or against the death penalty.

What county has jurisdiction over child custody?

When child custody is an issue and parents are in different countries, the issue can become very complex. While in the California, a child’s home state normally has jurisdiction over child custody matters, but other countries are not required to abide by California family laws.

How do you transfer matter from one court to another?

Regional court to district court: Horizontal and vertical application – De Rebus How To Transfer A Family Law Case To Another County By Dr James Lekhuleni Section 35 of the Magistrates’ Courts Act 32 of 1944 (the Act) regulates the transfer of matters from one magistrate’s court to another. A transfer of a matter can be in the form of consent by parties or on application by one of the parties in terms of r 55 of the Magistrates’ Court Rules.

The question whether a matter can be transferred from the district court to the regional court for hearing and vice versa has been a bone of contention in recent times, especially after the regional court was given civil jurisdiction in terms of the Jurisdiction of the Regional Courts Amendment Act 31 of 2008.

There are two schools of thought on this question. The first school of thought believes that s 35 applies both horizontally and vertically (ie, a case can be transferred from the regional court to another regional court and from the regional court to the district court and vice versa ).

The second school of thought believes that s 35 only applies horizontally (ie, from regional court to regional court and from a district court to district court). The views of the two schools of thought are discussed hereunder. In terms of s 29(1)( g ) read with s 29(1A) of the Act, the minister is empowered to determine different jurisdictional amounts in respect of district and regional courts.

Such determination is aimed at delineating the monetary jurisdiction of the two courts respectively. The minister has since determined the minimum and the maximum monetary jurisdiction of the respective courts as R 200 000 for district courts and above R 20 000 up to R 400 000 for regional courts in terms of GG 37477/27-3-2014.

It will be shown hereunder that the determination of the minimum amount by the minister is of no consequence in so far as the monetary jurisdiction of the regional courts is concerned. To this end, a door has been opened for forum shopping between the regional courts and the district courts. The first school of thought: Both horizontal and vertical application In Matlhasa v Makda and Another (GJ) (unreported case no 2015/17438, 4-9-2015) (Mphahlele J) the plaintiff sued the defendant for damages in the regional court.

The matter was defended. The parties agreed to transfer the matter from the regional court to the Vereeniging District Court. The application was granted by the regional court. The file contents were transferred to the district court. In other words, the regional magistrate believed that there was nothing wrong to transfer the matter from the regional court to the district court (vertical application).

When the matter appeared before the district magistrate, he refused to allocate a trial date as he held the view that there was no provision in our law specifically allowing any matter to be transferred from a regional court to a district court. He found that since the action was already instituted in the regional court, the matter could not be transferred subsequently to a district court.

The plaintiff applied to the High Court to review the decision of the magistrate for refusing to allocate a trial date. The High Court held that the finding of the magistrate – that there is no provision in our law allowing any matter to be transferred from the regional court to the district court – was unfounded and incorrect.

  • The High Court found that the Act defines a court as a magistrate’s court for any district or for any regional division.
  • The High Court held that the regional court was correct in transferring the matter to the district court on the consent of the parties.
  • The decision of the district magistrate to refuse to allocate a date was set aside and the plaintiff was allowed to proceed with the matter in the district court.

The implications of this case are that a regional court may transfer a matter to the district court by consent or on application by one of the parties in terms of s 35. If a matter is so transferred, the district court is bound to deal with the matter.

  • The second school of thought: The vertical application In Botha v Singh and Others (GP) (unreported case no 30761/14, 21-5-2015) (Kganyago AJ) the plaintiff issued summons against the Road Accident Fund (RAF) for damages in the district court.
  • The summons was issued in 2009 before the coming into operation of the Jurisdiction of the Regional Courts Amendment Act giving regional courts civil jurisdiction.

Subsequent to the Jurisdiction of the Regional Courts Amendment Act coming into operation, the plaintiff engaged the services of an actuary to calculate damages. After the actuarial report was prepared, it was found that the damages suffered by plaintiff exceeded the jurisdiction of the district court.

  1. The plaintiff then amended the summons and the RAF did not object.
  2. The plaintiff and RAF subsequently agreed to transfer the matter from the district court to the regional court as the claim now fell within the monetary jurisdiction of the regional court.
  3. Despite the agreement, the plaintiff still filed an application to transfer the matter in terms of s 35.

The matter was duly transferred from the district court to the regional court in terms of a court order. At the regional court, the regional magistrate refused to allocate a date for the matter and informed the parties that the regional court did not have jurisdiction to deal with the matter.

The applicant instituted an action in the High Court to compel the regional magistrate to allocate a date of trial. The applicant argued that the order transferring a matter to the regional court stood until it was set aside by court. The High Court held that s 35 does not specify to which court the parties must transfer their action or proceedings to, but refers to any other court.

The court held that what is important is that the parties must consent or any other party to the action or proceedings may bring an application for such purpose. The court found that the order granted by the district magistrate to transfer a matter to the regional court was a valid order.

The High Court then deprecated the conduct of the regional magistrate for refusing to allocate a date. The court held that the regional magistrate exercised powers of review, which he did not have when he refused to allocate a trial date. The regional magistrate was ordered to allocate a date of hearing within 60 days from date of the court order.

From this case, it is evident that litigants may transfer matters from the district court to the regional court by agreement or on application. In such cases, regional magistrates must comply with such orders of transfer. On receipt of cases from the district court, the regional magistrates must either allocate a date for the hearing of the matter or challenge the validity of the order of transfer through the right channels.

  • It is, therefore, unmistakably clear that matters can be transferred from the regional courts to the district courts and vice versa,
  • However, this will also be dependent on the substantive jurisdiction of the court.
  • Regional magistrates and district magistrate have to respect orders transferring matters to their courts.

The district court or the regional court? Ever since the coming into operation of the Jurisdiction of the Regional Courts Amendment Act, the view held by a number of regional magistrates was that the regional court does not have jurisdiction in matters falling within the monetary jurisdiction of the district court.

This view was overruled by the Western Cape High Court in the case of Minister of Police v Regional Magistrate Oudtshoorn and Others (WCC) (unreported case no 15587/2013, 6-11-2014) (Binns-Ward J), in which the court held that parties are at liberty to institute actions in the regional court whether the district court had jurisdiction or not,

In this case, the plaintiff instituted summons against the Minister of Police for payment of R 100 000 for unlawful arrest and detention. The plaintiff claimed R 20 000 for malicious prosecution against the Minister of Police. The defendant filed a plea and denied liability and prayed for the dismissal of the plaintiff’s claim.

After the closure of pleadings, the defendant amended its plea and raised a special plea of jurisdiction to the plaintiff’s summons. In its special plea, the defendant pleaded that the regional court did not have jurisdiction to try the matter as the monetary value of the plaintiff’s claim fell within the jurisdiction of the district court and that the plaintiff should have instituted action in the magistrate’s court.

The regional magistrate found that the minister acted ultra vires when he determined the jurisdiction of the regional court in that the notice of the minister provides a minimum, as well as a maximum, which is in conflict with s 29(1)( g ) of the Act.

  1. In terms of s 29(1)( g ), the minister could only determine the maximum of the court’s monetary jurisdiction.
  2. The regional magistrate dismissed the special plea on those grounds.
  3. The applicant applied to review the decision of the magistrate particularly based on reasons the regional magistrate gave that the Notice of the Minister was in conflict with the Act and that the minister acted ultra vires,

The High Court considered s 29(1)( g ) of the Act and found that the regional magistrate had to decide whether the claim fell within his monetary jurisdiction. The court held that in determining his monetary jurisdiction, the regional magistrate was entitled to disregard the words, ‘bove R 100 000 to’ as of no operative effect.

The court found that the words ‘bove R 100 000 to’ does not fit into the determination in terms of s 29(1)( g ) of the Act. The court found that s 29(1)( g ) has nothing to do with the determination of a lower limit to the magistrate’s court’s jurisdiction but the maximum limit. The court eventually found that an interpretation in terms of the determination by the minister leads to an absurd results.

The High Court eventually dismissed the application for review and also found that there was another reason for dismissing the special plea. The other ground was that the special plea was filed after litis contestatio, which is not permissible in law ( Zwelibanzi Utilities (Pty) Ltd Adam Mission Services Centre v TP Electrical Contractors CC (SCA) (unreported case no 160/10, 25-3-2011) (Cloete, Heher, Snyders, Majiedt and Plasket AJA)).

The court found that by failing to take the point before pleadings had closed, the applicant was taken to have submitted to the court’s jurisdiction. From the decision of the High Court, if follows that a plaintiff has a choice to issue summons in the regional court or in the district court for claims falling within the monetary jurisdiction of the district court.

The determination by the minister that the monetary jurisdiction for the regional court is ‘above R 200 000 to’ has no operative effect. Conclusion This decision has a potential of encouraging forum shopping. The plaintiff may choose to issue summons in the regional court for claims falling within the monetary jurisdiction of the district court because the district court’s court roll is clogged and the turnaround time for the enrollment of cases for trial is long.

In the result, there is a great potential for the regional courts to be clogged with matters, which should have been dealt with by the district court. It remains to be seen how things will unfold in the near future. There is a sizeable number of cases observed in recent times falling within the monetary jurisdiction of the district court, which are instituted in the regional courts.

It is doubtful whether it was the intention of the legislature to create a parallel jurisdiction between the regional court and the district court. I submit that in order to discourage forum shopping, regional courts should ensure that costs in those cases are granted in terms of the district court tariffs.

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Who has the authority to transfer cases from any court to itself?

Power of high court to transfer cases.

How do you transfer a case from one judge to another?

Principle governing transfer application. The transfer of a criminal case from a competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter, it is of paramount importance that the parties arraigned before the Courts, should have confidence in their impartiality.

  • It is one of the important duties of a High Court to create and maintain such confidence, and this can be done only ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him.
  • What is reasonable apprehension must be decided in each case with reference to the incident and the surrounding circumstance; and the Court must endeavour, as far as possible, to place himself in the position of the applicant seeking transfer and look at the matter from his point of view, having due regard to his state of mind and degree of intelligence possessed by him.

Nonetheless it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the cause. The test of reasonableness of the apprehension must be satisfied namely, that the apprehension must be such as a reasonable man might justifiably be expected to have.

  1. Case transferred to High Court.) (SC) PLD 1973 SC 327 Muhammad Nawaz v.
  2. Ghulam Qadar.
  3. Justice should not only be done but should be seen to have been done.
  4. Case transferred.
  5. PLD 1978 Lah.235.
  6. Barkat Ali v.
  7. Bashir Ahmed.
  8. While hearing transfer application judge to put himself in the shoes of the petitioner and then to see whether apprehension shown by the petitioner is genuine or not.

PLJ 1990 Cr.C. (Kar.) 243. Mirza Mubarik Ahmed. High Court to consider whether the apprehension may be expected to exist in person of standard of intelligence and honesty of class to which the party belongs and not whether apprehension is reasonable. Complainant’s witnesses not heard after recording statement of the Complainant and Court fixed date for arguments.

Apprehension the complainant that he will not get justice held sufficient for the transfer of the case. PLD 1962 Kar.77 Sarwar Khan. AIR 1925 Lah.101 Ahmed Din v. King Emperor (Reasonable apprehension what is?) Bias. Real bias in the Judge is unnecessary. Circumstances justifying applicant in entertaining the apprehension are enough.

AIR 1925 Lah.361 Amar Singh v. Sadhu Singh. ILR 3 Lah.443 Sardari Lal v. Emperor. Words and actions of judicial officer though susceptible of explanation and traceable to superior sense of duty, when causing in the mind of the accused apprehension not foolish or unfounded that he may not have impartial trial, it is in the interest of justice to transfer the case.

  • PLD 1979 Kar.188 Ghulam Nabi.
  • Powers of High Courts to transfer case not controlled by Crown.
  • Crown may not desire transfer but the case may be transferred in the interest of justice.
  • First informant in a murder case had reason not to trust the police of the district.
  • Case transferred.
  • PLD 1955 Lah.402 Crown v.

Mian Hussain etc. Party interested in section 526, Cr.P.C. Complainant witness and persons lodging FIR could be interested party. The question is to be decided on the facts of each case. PLD 1975 Kar.222 Pandhi. First informant is an interested person and can move for transfer of the case.

PLD 1962 Kar.864 Muhammad Khan. Uncle of deceased in case under section 302, PPC, an interested party and entitled to move for transfer of the case. (DB) PLD 1962 Dacca 192 Kanchan Ali v. Shahjahan. District Magistrate to be moved first before application is made to the High Court. High Court will interfere only in the last resort.72 lnd.

Cas.882 Ghulam Nabi v. Jawala 34 Cr.LJ 466 = 40 Cr.LJ 127 Mohiud Din v. Emperor. Overruled by: (SC) 1971 SCMR 721 Fazal Karim. (Law amended since). District Magistrate cannot transfer cases. Power lies with the Sessions Judge. Order set aside.1978 P.Cr.LJ 624.

Hayat v. Nusrat Ali (Law amended). Right to move High Court under section 526, Cr.P.C. is independent and not controlled by any condition other than those mentioned in section itself. Person seeking transfer not obliged to move Sessions Judge or District Magistrate first. (SC) 1971 SCMR 721 Fazal Karim. Procedure on transfer of a case to High Court under section 526, Cr.P.C.

from the Court of Magistrate would be the same as that of the Court of a Magistrate. PLD 1956 Lah.848 Ghulam Sarwar v. Niaz Ali; PLD 1958 Lah.747 Mushtaq Ahmad Gurmani v. `Z.A. Suleri. Case exclusively triable by Sessions Court cannot be transferred to High Court unless committed to Sessions Court.

(DB) 1969 P.Cr.LJ 583 dissented from 1973 P.Cr.LJ 507. Transfer of case from one High Court to another under Article 186-A of the Constitution; inconvenience only to a party or the Court where the case has been instituted has no jurisdiction is not sufficient ground. The plea of lack of jurisdiction is to be taken before the High Court where the case is pending and if the case is decided against him by the High Court the petitioner may approach the Supreme Court.1994 SCMR 1031, Muslim Commercial Bank Rawalpindi v.

Muslim Commercial Bank Karachi. Transfer from one High Court to other under High Courts (Establishment) Order (P.O.8 of 1970), Article 9 Transfer sought from High Court S to High Court at L. Question whether High Court S had jurisdiction or not to be agitated first before High Court.

  • Petitioner advised to approach the Supreme Court only after an adverse decision given by High Court S.
  • SC) 1974 SCMR 41.
  • Capital Development Authority, Islamabad v.
  • Hayadri Construction Co. Ltd. Karachi.
  • Transfer of case from Peshawar High Court to Lahore High Court to avoid conflict of decision on two writ petitions, allowed by Supreme Court under Article 98 of 1962 Constitution.

(SC) 1972 SCMR 58 Pindi Hazara Transport v. Government of NWFP. Transfer to High Court under its extraordinary criminal original jurisdiction. An ex-Governor of West Pakistan murdered. Case received undue publicity creating reasonable apprehension in the mind of the accused against a fair trial.

  1. Case transferred to High Court.1969 P.Cr.LJ 1058 Malik Asad Khan.
  2. Case against S.S.P.
  3. And other senior police officers; transferred from the Court of A.C.
  4. To that of Sessions Judge, Lahore for apprehension that the Magistrate may not be able to do justice where senior police officers were involved.
  5. NLR 1986 Cr.733 Liaqat Ali Butt.

Atmosphere at place of trial hostile. Accused police officials. Defence witnesses finding it unsafe to give evidence. District Magistrate and executive functionaries showing over zeal though actions taken by them within law. Apprehension of enquiry not being fair and impartial.

  1. Case transferred.
  2. PLD 1962 Lah.56 Abdul Aziz.
  3. Case transferred from Karachi to Lahore.1968 P.Cr.LJ 1675 Shamsud Din.
  4. Transfer of Criminal case from one district to another on reference by the Sessions Judge to the High Court allowed by the High Court when both the parties also agreed to it with a direction for the expeditious disposal of the case.

NLR 1989 Cr.572. Akhtar Hussain Shah etc.v. Muhammad Ramzan. Transfer of trial from one district to another in a murder case. It is to be considered whether in given circumstances alleged apprehension of not getting a fair trial is an apprehension that a reasonable man justifiably be expected to entertain.

PLJ 1990 SC 303. Daud Iqbal Pervaiz. Danger to complainant’s life apprehended and hostile atmosphere, held, to be valid grounds for transfer of a case to another District. NLR 1989 Cr.32. Mubarak Ali. Legal aid denied by local Bar, case transferred. NIR 1986 Cr.743 Haji Mehr Khan. Atmosphere most unsafe and uncongenial at place of occurrence and trial.

Parties wielding great influence with large number of supporters. Case transferred to another district. PLD 1979 Lah.346 Munawar Ali Khan v. Najam Abbas etc. PLJ 1979 Cr.C. (Lah.) 69. Apprehension of personal safety and person interested. Person lodging first information report is person interested and entitled to apply for transfer of the case.

Apprehension of personal safety and convenience of party are sufficient grounds for transfer. PLD 1962 Kar.864 Muhammad Khan. Complainant an influential person and danger to life of the petitioner. Previous enmity between parties. Case transferred. PLD 1973 Lah.238. Hussain Bakhsh v. Ghulam Mustafa.1974 P.Cr.LJ 116.

Desperate and influential opposite party threatening the petitioner with dire consequences. Transfer of the case refused but the Court directed the police to provide escort to the petitioner to and from the Court. (SC) 1970 SCMR 536 Mst. Sharam Khatoon.

  • Case transferred from Magistrate, Haroonabad to Lahore, when application filed at Lahore in High Court that it was unsafe for the female petitioner to go for trial to Haroonabad for offences u/Ss.420, 468, 471, PPC.
  • NLR 1987 Cr.594 Mst.
  • Shameem Akhtar.
  • Physical harm.
  • Transfer petition by a woman on the ground of physical harm by the accused if she travelled to the Court of trial Magistrate.

Transfer application rejected. Police directed to provide escort from her village to Court and back. (SC) 1971 SCMR 374 Muhammad Nawaz v. Mst. Sakina. Danger of involvement in further criminal cases. Circumstances of petitioner’s prosecution in district L are far from ordinary.

  1. Petitioner’s apprehension in the circumstances regarding his safety during his presence in district L and possibility of his involvement in further criminal cases, held cannot be said to be unjustified.
  2. Case transferred to district Hyderabad.
  3. SC) 1973 SCMR 203 Abdul Hamid Jatoi.
  4. Second transfer application by same party-Review of Order.

A transfer application dismissed by the High Court in the absence of petitioner’s counsel, after considering report of the Magistrate concerned. Fresh application on the same grounds can be heard. Though section 369, Cr.P.C. prevents alteration of a judgment by the trial Court after it has been signed was not applicable to the case.

The principle of finality of order has to be kept in view. This principle is not subject to the qualification that it is only to be applied where justice demands it or that it does not apply to interlocutory orders. High Court has the power to transfer a case suo motu on any grounds. When the circumstances were pointed out by the counsel the High Court transferred the case suo motu on 2nd application.

PLD 1956 Lah.505 Munir Hussain v. Crown. Other party not given a notice. The District Magistrate transferred a case under section 145, Cr.P.C. without giving notice to the other party. Cases remanded by High Court to District Magistrate to decide it afresh after notice to the other party.1974 P.Cr.LJ 578 Muhammad Khan v.

Ghulam Jilani. Notice to the first informant for the transfer of the case is not a must. He may be an interested party according to the facts of a particular case. But transfer order cannot be set aside because maker of FIR had no notice. PLJ 1975 Cr.C. (Kar.) 38 Pandhi. Cases transferred on joint request of parties when transfer was being sought for suspicion only.

PLJ 1995 Cr.C. (Lah.) 16, Mushtaq Hussain Shah v. Sana Ullah etc. Notice to the other party. Section 526, Cr.P.C. does not provide for giving a notice to the other party. The issue of a notice is not mandatory and the want of notice does not amount to an illegality but certainly it does amount to impropriety.

PLD 1958 Pesh.42 Muhammad Amir. ” (In this case complainant had got the case transferred without notice to the accused). Transfer without notice to the accused. Transfer by High Court, on complainant’s application, of case for trial before itself, before summons being issued by Magistrate. Accused a person of official status.

Order of transfer made without notice to the accused held in order. (SC) PLD 1963 SC 51 Ali Nawaz v. Muhammad Yousaf. ” the transfer of a case to another Magistrate without notice to the accused is not illegal.43 Cr.LJ 278 Kumara Swamy etc.197 IC 799. Transfer without notice, to opposite party is not illegal.

  1. AIR 1926 Lah.156.
  2. Bagh Ali v.
  3. Muhammad Din.
  4. State-opposite party and complainant.
  5. Opposite-party in a murder case is the State and not the relative of the deceased or the first informant.
  6. Such person is not entitled to notice when transfer application is being moved.
  7. SC) 1970 SCMR 484 Zulfiqar v.
  8. Zulfiqar etc.

Grant of bail is no ground for transfer of the case. Held, High Court rightly rejected transfer application. PLJ 1980 SC 82. Muhammad Ishaq v. Muhammad Nawaz Malik. Grant of bail after the stay of proceedings under section 526, Cr.P.C. raises a reasonable apprehension in the mind of the opposite-party that he may not have a fair trial.

  • Case transferred.1971 P.Cr.LJ 555 Nazir-ud-Din.
  • Grant of bail after stay of proceedings.
  • Complainant moved the High Court for the transfer of the case and proceedings were stayed.
  • Subsequently the Sessions Judge admitted the accused to bail.
  • Cancellation of bail, sought on the ground that after the proceedings were stayed the Sessions Judge was not competent to grant bail.
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Held, bail application filed subsequently was not a part of the main case being tried. The order granting bail held to be valid. The Court can deal with extraneous or emergent matters. PLJ 1973 Lah.251 = 1973 P.Cr.LJ 1050 Abdul Ghafoor. (Law has been changed since).

Failure to stay the proceedings under section 526 (8), Cr.P.C. After a petitioner makes an application under section 526, Cr.P.C. to the trial Court the proceedings must be stayed. Where proceedings are not stayed the proceedings are null and void for want of competence and cannot be cured under section 537, Cr.P.C.

(DB) PLD 1956 Kar.440 Hayder Jaffery v. Crown. PLD 1950 BJ 64 Sehat Khatoon v. Crown. (Law changed since). Magistrate not to proceed with the case till receipt of order from the High Court when the case is adjourned and a transfer application is made to the High Court.

PLD 1965 Lah.382 Abdul Sattar v. Muhammad Yousaf. Stay of proceedings. First application for the transfer of the case in High Court order staying proceeding is not necessary. In the subsequent application under section 526, Cr.P.C. the Magistrate is not bound to adjourn proceedings unless he receives an order from a competent Court to do so.

(FB) 44 Cr.LJ 751 Mahmood Hussain v. Emp.208 I C 242. (Note: Now sec.526 (B) has been amended and the Magistrate is not bound to stay the proceeding even at the first transfer application but he cannot pronounce the final order or judgment, until he receives information from the High Court about the disposal of the application).

Inquiry for section 302/34, P.P.C. not transferred from P to S on the ground that S was convenient for eye-witness who were likely to be won over by accused in S jail. PLJ 1974 Cr.C. (Lah.) 522 Manzoor Ahmed. Court summoning accused to Court who had been found innocent by the police and placed in column No.2 of report.

Magistrate summons accused under clause (b) of section 190 (1) Cr.P.C. and not under clause (c) of that section. Transfer of the case refused.1970 P.Cr.LJ 1316 Ali Muhammad. Expression of opinion by a Magistrate in one case is no ground for getting the cross-case transferred from the Magistrate.

  1. DB) PLD 1956 Kar.421 Seigeried Forstner v.
  2. Miss Sumro.
  3. Magistrate a defendant in official capacity in civil proceeding filed by the petitioner is no ground for the transfer of a case.
  4. PLD 1975 Lah.695 Muhammad Afzal.
  5. Irregularity in proceedings.
  6. Examining the accused under section 342, Cr.P.C.
  7. Before the prosecution evidence is closed or allowing inadmissible pieces of evidence to be brought on the record are not ground for the transfer of a case.

(DB) 43 Cr.LJ 48 Munar Pandey v. Emp. Passing of wrong order or violation of procedure by itself is not sufficient for the transfer of a criminal case.1977 P.Cr.LJ 677. Muhammad Mustafa etc. Mere apprehension of being convicted is no ground for transfer.

  • Apprehension of an unfair trial is a ground for transfer.43 Cr.LJ 71 Chuni Lal 196 IC 816.
  • Defence counsel not given time to prepare the case, on application of the accused case transferred.
  • NLR 1991 Cr.290 Muhammad Aslam.S.D.M.
  • Taking bail under section 117 (3), Cr.P.C.
  • But ordering verification by Mukhtiarkar and the petitioner remaining in jail.

Apprehension in the mind of the petitioner that he will not have justice from the S.D.M. Case transferred from the Court.1974 P.Cr.LJ 187 Aziz Ullah. Cross-cases. Court should dispose of cross-cases together. Expression of opinion in one case gives reasonable apprehension in the other.

  • Transfer ordered.
  • AIR 1934 Lah.458 Babu v. Emperor.
  • Magistrate recording dying declaration, deemed to be a witness and interested in prosecution.
  • Case transferred.
  • DB) PLD 1965 Dacca 150 Kefatullah v.
  • Irshad Ali Mondal.
  • Bailable warrants issued.
  • Magistrate issued bailable warrants of arrest without waiting for the return of summons issued in the first instance.

Held, that it is a good ground for the transfer of the case. PLD 1961 Kar.675 Muhammad Siddiq. Issue of warrants in undue haste. Record showing that the Magistrate issued warrants in undue haste. High Court can suo motu transfer case to another Magistrate.

PLD 1958 BD 1 Iqbal Hussain v. Irshad Hussain. Harsh tone and losing temper by Magistrate. Case transferred.1973 P.Cr.LJ 829 Meraj Din. Magistrate using harsh tone but done only to maintain decorum of Court. Held, losing temper by Magistrate not justified. Such circumstances could create apprehension in the mind of the petitioner that he may not get justice.

Case transferred.1973 P.Cr.LJ 829 Meraj Din. Magistrate receiving hospitality, of son of complainant, case transferred. AIR 1926 Lah.347. Narain Singh. Transfer when P.W. friend of Magistrate and complainant. Case should be transferred. AIR 1926 Lah.410. Tirlok Singh.

  1. Prolonging the case by one witness a day during the trial.
  2. Case transferred.
  3. AIR 1926 Lah.78.
  4. Narain Dass etc.
  5. Transfer of murder case for reason of frequent adjournments ordered, when adjournments were found to be without merit.
  6. PLJ 1991 Cr.C.
  7. Lah.) 144 Jan Muhammad v.
  8. Hursheed etc.
  9. Magistrate adjourning case without reasons on several hearings.

Case transferred 1978 P.Cr.LJ 169. Sh. Muhammad Maskin. Magistrate acting in manner giving semblance of an idea of his not proceeding in accordance with law. Inquiry on complaint under section 302, P.P.C. cannot be entrusted to him.1973 P.Cr.LJ 882 Muhammad Anwar v.

  • Qurban Ali.
  • District Magistrate displaying “great zeal” and taking `undue interest’ in the prosecution of the case against the accused.
  • Case transferred.
  • PLD 1962 Kar.678 Bhura Khan.
  • Magistrate’s adverse remarks.
  • Prevaricating statement of witness provoking Magistrate to remark, “I should arrest him now” intending thereby to proceed against the witness who had favoured the accused.

Held, it created reasonable apprehension in the mind of the accused. The Magistrate should have taken action after the conclusion of the trial. Case transferred. (SC) 1970 SCMR 694. Mian Muhammad Rashid. Discrimination ground for transfer. The Court waited for the prosecution counsel and adjourned the case but when counsel for the accused was not present the Magistrate did not wait when requested and proceeded with the case.

  • Case transferred.1973 P.Cr.LJ 515 Faqir Muhammad.
  • Court exercising pressure on accused to produce absconding accused.
  • Good ground for the transfer of the case.
  • DB) PLD 1960 Dacca 981 Jagabandu.
  • Magistrate trying a particular type of cases (corruption) over a long time may unconsciously develop a mentality which may hinder even-handed justice.

The Magistrate, acting as Special Judge went out of his way to condemn a prosecution witness who in cross-examination stated that he had grudge towards the accused. Case transferred. PLD 1957 Lah.841 Bashir Ahmed. Magistrate offering seat to the complainant on the dais and accommodating him in his retiring room are circumstances enough to raise reasonable apprehension in the mind of the petitioner that he may not have a fair trial.

Case transferred. PLD 1976 Lah.598 Shahid Azizi. PLJ 1976 Lah.253. Magistrate getting information before the commencement of the proceedings before him; there is reasonable apprehension that the information received by the Magistrate may subconsciously influence his mind, and the decision Transfer justified.48 Cr.LJ 661 Devi Dayal v.

Emp. Government notification to transfer a part-heard case from L to K against the wishes of the parties and their convenience held invalid and set aside. Case transferred to L.1973 P.Cr.LJ 240 Mubarik Ali. Cases under Martial Law in the Court of a Magistrate, Section 526, Cr.P.C.

applies. (DB) PLD 1959 Lah.171 Fateh Muhammad. Forfeiture of bond. District Magistrate stayed further proceedings before a subordinate Magistrate. Magistrate could not forfeit bond executed under section 526, Cr.P.C. in respect of transfer application. PLD 1951 Dacca 71 Khondar Akbar Ali v. Crown. From one High Court to another.

Supreme Court has no jurisdiction to transfer a case from one High Court to another under the Constitution or any other law. PLD 1977 SC 1. Mir Hassan v. Tariq Saeed etc. (Also see section 527, Cr.P.C. re-transfer of case by Provincial Govt.) Supreme Court is not empowered to order transfer of a case from file of a Judge of High Court.1977 SCMR 514 Z.A.

  • Bhutto. Transfer to Sessions Court.
  • High Court can transfer a case from the Court of a Magistrate Ist class to the court of Sessions Judges as it is a Court of superior jurisdiction to that of the Magistrate.
  • PLJ 1977 Lah.51 Nisar Ahmed.
  • Case cannot be transferred by the Sessions Judge u/s.528 (1A) Cr.P.C.

when the trial has already begun by the A.S.J. PLJ 1996 Cr.C. (Lah) 673, Muhammad Jahangir Iqbal. Convenience of accused is to be considered rather than that of the complainant for the transfer of the case. AIR 1926 Lah.493 Sohan Lal v. Gopal Singh. Transfer of case for convenience of accused in a challan case is preferable to the convenience of the complainant.

Hudood case transferred. NLR 1984 Cr.698 Muhammad Jamshed. Transfer of case under Suppression of Terrorist Activities Act by Sessions Judge from the Court of another Special Court presided over by Addl. Sessions Judge is without jurisdiction. Only High Court can transfer the case u/S.4A of the Act, and transfer cannot be ordered without notice to the accused.

(DB) NLR 1999 Cr.243, Nazim Hussain Shah.

What is a good excuse to reschedule a court date?

Last-Minute Emergencies – You can’t always control the world around you. A valid emergency can serve as an excuse for missing a court date. Some examples of legitimate emergencies include:

An emergency room visit for a sudden, debilitating medical condition.A sick child.A motor vehicle accident.A kidnapping.The death of someone in your immediate family.

Even if an accident prevents you from adhering to your court date, you must get in touch with the court. Your attorney can appear for you and explain the situation. You may also be able to send an agent, such as a family member, to clarify why you’re not there.

Can a court order be changed if both parents agree?

Can you change a child arrangements order? During a divorce or separation, parents want to ensure that it has as little impact on their children as possible. Understandably, some parents find it challenging to make arrangements for their children. In this case, disagreements can often be resolved through mediation or negotiation.

If parents cannot reach an agreement, a child arrangements order can help work out a solution and ensure the are covered. A child arrangements order is made by the family courts to ensure that a child’s living arrangements are in their best interests. child arrangements orders can be changed as parents’ circumstances change with time, and a child’s needs change as they get older.

However, when the order is made, it is based on what the court considered the children’s best interests at the time. For this reason, one parent should not change a child arrangements order without the court’s approval or agreement from the other parent.

How much does it cost to file a motion in Texas?

The fee to file a motion in a Texas court of appeals is generally $10, but is higher for certain motions, such as the $15 charged to file a motion for rehearing or a motion for en banc consideration.

What is Rule 86?

Rule 86. Effective Dates (a) In General. These rules and any amendments take effect at the time specified by the Supreme Court, subject to, They govern:

  • (1) proceedings in an action commenced after their effective date; and
  • (2) proceedings after that date in an action then pending unless:
  • (A) the Supreme Court specifies otherwise; or
  • (B) the court determines that applying them in a particular action would be infeasible or work an injustice.

(b) December 1, 2007 Amendments. If any provision in Rules 1–5.1, 6–73, or 77–86 conflicts with another law, priority in time for the purpose of is not affected by the amendments taking effect on December 1, 2007. (As amended Dec.27, 1946, eff. Mar.19, 1948; Dec.29, 1948, eff.

  1. Notes of Advisory Committee on Rules—1937
  2. See Equity Rule 81 (These Rules Effective February 1, 1913—Old Rules Abrogated).
  3. Notes of Advisory Committee on Rules—1948 Amendment

By making the general amendments effective on the day following the adjournment of the first regular session of Congress to which they are transmitted, subdivision (c), supra, departs slightly from the prior practice of making amendments effective on the day which is three months subsequent to the adjournment of Congress or on September 1 of that year, whichever day is later.

The reason for this departure is that no added period of time is needed for the Bench and Bar to acquaint themselves with the general amendments, which effect a change in nomenclature to conform to revised Title 28, substitute present statutory references to this Title and cure the omission or defect occasioned by the statutory revision in relation to the substitution of public officers, to a cost bond on appeal, and to procedure after removal (see Rules 25(d), 73(c), 81(c)).

Committee Notes on Rules—2007 Amendment The language of Rule 86 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

  • The subdivisions that provided a list of the effective dates of the original Civil Rules and amendments made up to 1963 are deleted as no longer useful.
  • Rule 86(b) is added to clarify the relationship of amendments taking effect on December 1, 2007, to other laws for the purpose of applying the “supersession” clause in 28 U.S.C.

§2072(b). Section 2072(b) provides that a law in conflict with an Enabling Act Rule “shall be of no further force or effect after such rule ha taken effect.” The amendments that take effect on December 1, 2007, result from the general restyling of the Civil Rules and from a small number of technical revisions adopted on a parallel track.

  1. None of these amendments is intended to affect resolution of any conflict that might arise between a rule and another law.
  2. Rule 86(b) makes this intent explicit.
  3. Any conflict that arises should be resolved by looking to the date the specific conflicting rule provision first became effective.
  4. Effective Date of 1966 Amendment; Transmission to Congress; Rescission Sections 2–4 of the Order of the Supreme Court, dated Feb.28, 1966, 383 U.S.1031, provided: “2.
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That the foregoing amendments and additions to the Rules of Civil Procedure shall take effect on July 1, 1966, and shall govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies.

  1. 3. That the Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments and additions to the Rules of Civil Procedure in accordance with the provisions of Title 28, U.S.C., §§2072 and 2073. “4.
  2. That: (a) subdivision (c) of Rule 6 of the Rules of Civil Procedure for the United States District Courts promulgated by this court on December 20, 1937, effective September 16, 1938; (b) Rule 2 of the Rules for Practice and Procedure under section 25 of An Act To amend and consolidate the Acts respecting copyright, approved March 4, 1909, promulgated by this court on June 1, 1909, effective July 1, 1909; and (c) the Rules of Practice in Admiralty and Maritime Cases, promulgated by this court on December 6, 1920, effective March 7, 1921, as revised, amended and supplemented be, and they hereby are, rescinded, effective July 1, 1966.” : Rule 86.

Effective Dates

Can a mother relocate my child out of Texas without my permission?

Sole Conservator – A sole conservator parent usually has the exclusive right to decide where the child lives. Under the Texas child custody relocation law, this includes moving out of state. Texas custody orders have full effect in other U.S. states. There is typically no need for sole managing conservators to get child custody orders for moving out of the state of Texas, but each order is different and unique.

What is the procedure for moving a motion?

Proposing motions – A motion is proposed by a member of the body, for the consideration of the body as a whole. Generally, the person making the motion, known as the mover, must first be recognized by the chairman as being entitled to speak; this is known as obtaining the floor.

  1. Once the mover has obtained the floor, the mover states the motion, normally prefixed with the phrase “I move.” For instance, at a meeting, a member may say, “I move that the group donate $5 to Wikipedia.” Instead of being given verbally, a motion may be made in writing, called a resolution,
  2. If the motion was in writing, the mover would say “I move the resolution at the desk” or “I move the following resolution” and would then read it.

Generally, once the motion has been proposed, consideration by the assembly occurs only if another member of the body immediately seconds the motion. Once the chair states the motion, it becomes the property of the assembly and the mover cannot modify it or withdraw it without the assembly’s consent.

Which amendment allows for a change of venue?

III provision and the sixth amendment ). This comment will refer to the sixth amendment as establishing a right to venue in the district where the crime was committed.

What court have the authority to change venue of trial?

— The Supreme Court is invested with the prerogative of ordering a change of venue or place of trial to avoid a miscarriage of justice.

What is a change of venue and why is it important?

Understanding the Motion for Change of Venue – When a Motion for Change of Venue is filed in a criminal case, it means either the prosecution or the defense is asking the judge to move the upcoming trial to a different place. This isn’t as simple a procedure as it seems.

  1. There is the question of jurisdiction, for example—a court can only hear for which it has the legal authority to render a decision—and the rules for changing venues are different from place to place.
  2. Sometimes changing a venue presents no conflict with the court’s jurisdiction; for example, if a crime spans two jurisdictions, the trial could be held in either, and with state crimes, a trial might be moved from one county to another within the state without violating jurisdiction.

There are other times when the process is more complex, and the party requesting the change will have to demonstrate valid concerns about the fairness of the trial before the judge approves it. All of this is to say that it’s important to have an experienced defense attorney in your corner who understands the nuances of the law, and who can navigate these sometimes-tricky waters.

At what age in Georgia can a child decide which parent to live with?

Custodial Election by Child Age 14 or Older / Or Ages 11-14 in a Georgia Divorce Custodial Election by Child 14 or Older in a Georgia Divorce Although many lawyers question whether children in a divorcing or divorced family are unduly empowered, the law in Georgia is that a child 14 or older can elect his or her “physical custodial”, the parent with whom the child will live with more than 50% of the time.

  1. The child is not empowered to elect who will be the legal custodian / final decision maker.) This election can be made in the initial divorce, or it can be the basis of a modification action.
  2. Per O.C.G.A.
  3. Section 19-9-3(a)(5), the election shall constitute a material change in circumstance triggering the right to file a modification).

To make the election, the child should come to the attorney’s office and sit with the attorney alone and execute an affidavit of election. The attorney should make sure the election is truly voluntarily and in the child’s best interest. The child can be compelled to testify as to any manipulation or undue influence in the election, so the child has to be strong enough to stand by his or her decision in court in front of the other parent.

Not every child can do this. Atlanta Custodial Election Attorney Russell Hippe has extensive knowledge regarding the execution of an affidavit of election. Specific Statutory Authority for the Child’s Election O.G.G.A. Section 19-9-3(a)(5) provides: “In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live.

The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” This “presumptive best interest” standard, effective for all custody actions filed on or after January 1st, 2008, gives the trial court some latitude to refuse to honor a child’s custodial election.

  1. See, Driver v.
  2. Sene, 327 Ga.
  3. App.275, 277, 758 S.E.2d 613, 616 (2014) (in this modification action, GAL recommended that 15 year old, despite his affidavit of election, remain in the custody of his mother, and court agreed this was in the 15 year old’s best interest).
  4. Prior to January, 2008, the judge’s hands were usually tied.

The old standard was the child’s election was controlling absent a finding that the elected parent was unfit. Without such a finding, the election was required to be recognized, and the court had no discretion to act otherwise. See, Scott v. Scott, 276 Ga.372, 578 S.E.2d 876 (2003) for discussion of the old standard.

  1. Visitation Election by Child 14 or Older in the Divorce or Post Divorce The election of the child to live with one parent more than 50% of the time does not mean the non-custodial parent is not entitled to visitation.
  2. Further, if the child has elected to live with one parent, this does not necessarily mean the child can simply refuse to visit with the non-custodial.

The Supreme Court in Worley v. Whiddon, 261 Ga.218 (1991) noted “The fact that a child of 14 can select his or her custodial parent, does not require the conclusion that such a child can be allowed to elect not to visit with the noncustodial parent.” Accordingly, a non-custodial parent has a right to seek judicial review of any such refusal to visit.

The trial court retains supervisory power of the decision of the child and can order visitation over the child’s wishes if it is in the child’s best interest. In Worley, the Supreme Court re-affirmed it’s holding in Prater v. Wheeler, 253 Ga.649, 322 S.E.2d 892 (1984), which noted: “The fact that a child of 14 can select his or her custodial parent, does not require the conclusion that such a child can be allowed to elect to not visit with the noncustodial parent.

Just as the selection of the custodial parent is subject to the judge’s determination that the parent so selected is ‘a fit and proper person to have the custody of the child,’ so must the modification or alteration of visitation rights, thereof be done by order of the court.” However, if a child age 14 or older has made the independent decision (untainted by the custodial parent) that he or she does not wish to visit with the non-custodial parent (even if this decision is not in the child’s best interest), and there is no evidence that the custodial parent has wrongfully influenced this decision, ordinarily the court will not hold the custodial parent in contempt for refusing to respect the visitation schedule.

  1. See, Doritis v.
  2. Doritis, 294 Ga.421 (2014).
  3. Custodial Election by Child 11 to 14 in a Georgia Divorce A child age 11-14 may sign an affidavit of election of his or her desired physical custodian and may come to court to testify regarding.
  4. However, this election is not entitled to any presumption.
  5. Concerning the custody of a child age 11 to 14, the judge will have complete discretion and the best interest standard will be controlling.

The execution of an affidavit of election by a child age 11 to 14 will not, in and of itself, constitute a material change in circumstance triggering the right to file a custody modification action. : Custodial Election by Child Age 14 or Older / Or Ages 11-14 in a Georgia Divorce

At what age can a child in NC choose which parent to live with?

The Child’s Preference vs. the Best Interest Standard – As you may know, all child custody orders in North Carolina are based on the “best interest” standard. Courts award custody based on the best interest of the child. A child’s expressed desire to live with one parent may not necessarily be in their best interest.

  • For example, if one parent allows their child to engage in unhealthy behaviors, their child may choose that parent over the other parent.
  • However, that does not mean that the child’s decision is in their best interest.
  • While some states allow children of a certain age to choose one parent over the other, there is no such law in North Carolina that would allow children to choose which parent to live with at a certain age.

In other words, it does not matter whether your child is 5 or 15. Their preference to live with either parent may be taken into consideration during a custody case, but there is no guarantee that custody will be awarded to the selected parent. Also, if there is a child custody order in place, all parties must abide by the visitation schedule, including the child.

At what age can a child decide where to live in SC?

How Old is Old Enough for a Child to Choose Where to Live After a South Carolina Divorce? – Our child custody attorneys in Rock Hill and Fort Mill, South Carolina have represented both mothers and fathers during divorces, and know how the court values both parents remaining involved in the children’s lives.

We have also heard many of our clients explain just how much their children want to live with them, and what bearing that has on the court’s decision. While there is no precise age in which the child can choose, South Carolina family court judges are likely to give more weight to an older child’s preference based on his or her maturity, judgment, and ability to make reasonable decisions.

That includes:

Children Ages 12 Years Old and Under

No South Carolina cases are indicating — or have indicated — that the family court will give great weight to the wishes of a child under the age of 12. However, if the child’s life experiences and maturity far exceed their young ages, their opinion may be taken under advisement.

Children Ages 12 to 14 Years Old

Between the ages of 12 and 14, the judge may begin to consider a child’s opinion while noting the age and maturity of the child may provide a reasonable reflection of the case, and that the preference was determined to be in their best interests.

Children Ages of 14 and Over

Our South Carolina family courts begin to give more weight to the child’s preference beginning at age 14, and especially in cases where the child is 16 or older.

At what age can a child decide which parent to live with in Massachusetts?

When Will the Court Consider a Child’s Preference? – It’s common for parents to ask at what age their child can decide custody, In Massachusetts, children can’t “decide” where they will live until they are at least 18 years old. However, Massachusetts courts must consider a child’s custodial preference when the child is mature enough to have a rational opinion.

While there is no specific age when judges will consider a child’s preference, judges tend to give the opinions of older teenagers more weight. A child below the age of 10 would need to be very mature for a Massachusetts judge to factor the child’s preference into a custody decision. Regardless of the child’s age, the court will only consider the child’s opinion along with all other factors.

In other words, the child’s desire is not the deciding factor in any custody hearing. Judges are particularly careful when considering a child’s custodial preference. Parents sometimes wrongfully influence a child to select them over the other parent. Sometimes children’s statements are unreliable or fickle.