by Lel4nd

Question by Deus: Can a judge grant sole custody to ex-wife at default hearing?
My ex-wife filed for divorce April 2008. I did not respond to the filing because I could not afford to plus I did not have issues with anything in the court order with exception to her wanting full custody of our children. We went to mediation in June and everything worked out fine. We had a 7 day on/off arrangement. Day before the hearing, she asked me back. I said no. Day of court, she changed her mind and did not agree with the mediator’s report. Judge sent us back to mediation. In the second mediation, she displayed emotions and had accusations that the mediator deemed based on emotions and even said “mother’s feelings for father are not resolved and affecting ability to co-parent with father.” She recommended joint custody and we went back to court. day of court, ex-wife disagreed with recommendation, but judge adopted it into an order without modification effective June 11, 2008. She wanted to take it to trial, but then dropped it because she was tired of being in and out of court.

Months past and my ex-wife files Request for Default because I did not respond to original divorce petition. She had a default hearing on October 22, 2008. I was not allowed to appear because I defaulted. In that hearing, she was awarded what she wanted in her divorce (I had no issues with that). He also awarded her sole physical/legal custody of our children.

I am a good father to our children. I do not do drugs, alcohol, nor abuse our children. I have a stable job, reliable transportation and housing for them. The previous orders set were in good standing, neither of us violating anything.

My question is, why would the judge just allow/grant her sole physical/legal custody when there were orders in place as of June 11, 2008, in good standing? And keep in mind, those orders were a mediator’s recommendations, adopted into an order by a judge at the court. Nothing had changed since the June 11, 2008 order as far as job status, etc. We both live 20 minutes from each other, so it was not like I moved out of state.

I filed an Order to Show Cause on October 28th to contest the current custody order. I have a court date on December 1, 2008. I am asking this question because I know the courts do not like to waste time and I wanted to know if I even have a fighting chance, since I defaulted on her original filing? Even so, why would the judge just give it to her without considering our previous order that granted joint legal/physical to both of us? FYI: I cannot afford a lawyer and am doing this on my own.

I live in California, Sacramento County.

Help please!!!
Brianna, I understand that, but when she served the papers for Request for Default, I did not see a court date on there. I called the clerk and she said I did not need to respond to the filing nor attend the hearing because I was in default. The papers did NOT have a court date for the default hearing.

Best answer:

Answer by Brianna
When you don’t show up to court and send in no legal papers stating for a continuance, you look as if you don’t care. Therefore the judge based his opinion on your lack of interest. Which shows you as an uncaring father and not a caring one to not even show up for the hearing. The judge bases it upon that day and not your entire history. You were not there to contest, so it was un uncontested request, what else could he do but award the custody? The previous order was probably not brought into the court room, no need without you there to contest custody.

Now, you do have a chance at this, you would do much better if you found a pro-bono attorney or find out if you qualify for legal aid. You need to get a judge to sign in that she cannot keep filing for different custody rights every other month when she’s upset. You should also ask him to force her into counseling so she can get over her feelings for you and to stop using the children as punishment every time she’s upset.

Best of luck and learn from this. Never ignore a court date again. You can always file a continuance instead, base it upon how many days you have had to take off to work on the case yourself and how many days in court and mediation she has caused you to take already. A judge should easily grant a continuance next time.

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