When one parent fails to appear for a child custody hearing, a default judgement may be entered against them. A default judgement is a ruling made by the court without hearing from either party.
A default judgement in child custody can have serious consequences. It can result in the loss of custody rights, visitation rights, and/or access to the child’s records. It can also make it more difficult to obtain future custody orders.
It’s important to understand that a default judgement is not necessarily an indication of guilt. Sometimes circumstances simply make it impossible for one party to attend the hearing. In these cases, it’s important to try to reach an agreement with the other party before the hearing date or at least communicate with them afterwards so that you can both understand what happened and decide on next steps together.
In this blog, we’re about to give you a thorough explanation of topics below to assist and help you comprehend what a default judgment entails and how to prevent one if you’re the plaintiff in a child custody dispute.
The definition of a Default Judgement in Child Custody
An default judgment in child custody is when the court decides the case without hearing from the other parent. This can happen if the other parent does not show up for the hearing, or if they do not respond to the court papers. If an default judgment is entered, it is usually because the court believes that the parent who did not participate in the case does not care about their child.
The parent who did not participate in the case will usually have to pay child support, and they may have limited visitation rights. In some cases, an default judgment can be set aside, but it is difficult to do. If you have been served with papers for a child custody case, it is important to respond to them right away. If you do not, you could lose your rights as a parent.
What does receiving a Default Judgment in a Child Custody hearing mean?
In an child custody case, the defendant will have around 21 days following the plaintiff and defendant’s initial court appearance to answer the court’s initial inquiry with a summons or complaint. The plaintiff in a child custody lawsuit may ask for a default judgment if the defendant fails to take either action within 21 days.
The plaintiff must show up for a brief court hearing to have the final custody order approved if the judge grants the plaintiff’s request for a default ruling. Once accepted, the plaintiff will receive a custody ruling that puts an end to the conflict among two sides.
A default decision is one of the finest outcomes you can hope for as the plaintiff in a child custody dispute because it indicates that the defendant effectively didn’t put up a fight.
How to position yourself to achieve the best result in a child custody case?
If you’re the defendant in a child custody dispute and you absolutely must avoid a default judgment, you must make sure that you answer any court questions that may be directed your way following the initial hearing. You will be able to refute any allegations the plaintiff makes against you as long as you respond in some way within the allotted period.
Specifically, you should speak with a reputable family law attorney for assistance if you are unclear about any of the issues pertaining to your child custody dispute.
Default Judgment Filing Procedure
Prior to engaging in default judgment, parties must comply with a number of prerequisites. First, the other party must wait the required 21 days without responding. Thirdly, confirm that the receiving party was served by a sheriff or other official and was treated as a respondent. The second step is to file a return of service, which details where and when the filing spouse facilitated the receiving party.
Once those conditions are satisfied, the filing party should bring copies of each as follows, to court with a file stamp on them:
- Suit Petition Relating to Parents’ Child Relationship
- Order for Parent Custody
- Returning of Service
- Order to Withhold Income to Support (if necessary)
- Military Service Declaration
- Certificate of Last Identified Address
Once the filing party has presented evidence documents to the court and the opposing party has not submitted a response, the judge may enter a default decision. An abstract judgment may be used to create mortgages on the resources or property of the other party if a default judgment is issued. A writ of execution that authorizes legal action to seize the property may also be filed.
A Default Judgment’s Response Procedure
The father or mother who is affected by a default judgment may still comment. A default decision may be “set aside” by the other party. A request to vacate a default judgment and a notice of the hearing should typically be submitted 30 days after the judge’s default judgment was signed.
Last but not least, if the impacted party receives a notification of the default decision through publication, they have 2 years from that date to request a new trial. In addition, the court may extend the deadline for filing a motion if one spouse was on active duty after the default decision was filed.
Reasons for Moving to Vacate a Default Judgment
A move to vacate a default judgment may be submitted for a number of reasons, including:
The motion may be granted to the aggrieved party if they misplaced something or did something else that would legitimately have prevented them from filing an answer.
A party may file a motion if they purposefully misled the impacted filing party for a default judgment.
It is significant to remember that these situations are thought to be extraordinary and vary depending as to the case and setting.
If a motion to vacate the judgment is denied, the party who will be affected by it may file a limited appeal. In a limited appeal, the opposing party’s allegations against the decision are refuted as being false or that the judgment itself is unenforceable.
Six months later, when the default judgement is signed, the impacted party must lodge a limited appeal. The party that was adversely affected must provide proof they were still unable to participate in the case, react to the petition, or appear. Finally, the rationale for the circumscribed appeal needs to be evident from the surface as evidence.
Can I File a Motion at Family Court to Vacate an Default Judgment?
Yes, a default judgment in family court may be overturned in specific situations. An application to reserve the default judgment must often be filed by the person who seeks to have it vacated.
Throughout the motion to dismiss a default judgment, a submitting party must justify their non-response. They might not have received notification of the filing, for example, as a possible explanation.
It is crucial for the party seeking to have the verdict set aside to submit their request as soon as possible. The likelihood that the court will reverse the judgment decreases the longer they delay.
What Must I Show in Order to Overturn a Default Judgment?
Occasionally, a default ruling may be overturned. The judgment may be vacated or set aside throughout this procedure.
A individual who wants a default decision annulled, or vacated, must convince the judges that they have a valid justification for doing so. As was previously mentioned, this is done in the trial application to vacate the judgment.
The person must normally provide one of the following grounds in the request to vacate the decision for their failure to answer or fail to appear in court:
- Error, where the person erroneously misinterpreted the truth or the law;
- Inadvertence or unexpected, which may happen if the defendant believes someone else is answering on their place or if the appeal is presented in a fashion that gives them an unreasonable amount of time to react
- Lack of notice
- Excused neglect
- newly discovered evidence
- Fraud or misbehavior, which might happen if the proceedings weren’t served or if something else went wrong
- Duress, which happens when a person is forced to remain silent.
- The court decision was complied with or overturned.
- Another compelling case supporting the defendant’s refusal to respond
The judge will often conduct a court hearing on the motion before deciding if it wants to overturn the verdict. Each jurisdiction has a different success rate for various motions.
These motions are, however, granted in a very lenient manner because of the complicated structure of the judicial process. A court is somewhat more likely to let each party explain their issue on the grounds than to let a default ruling remain.
It is important to remember that the kind of defense a defendant can make will depend as to how long such a default judgment has been in effect. For instance, if someone presents a fault, surprise, or excuse justification more than a year following the judgment was rendered, they may encounter a hostile court. However, if indeed the defendant was out of the state or wasn’t formally served, then the court will most likely be much more understanding.
Furthermore, it’s critical to understand that winning a move to vacate a court judgment isn’t the same as agreeing to the case. Simply put, ignoring a default decision gives a person the chance to submit a reply to the initial complaint.
The defendant could also need to demonstrate that there are strong legal arguments or issues that the court should take into account. A defendant can claim, for instance, that default judgment does not serve their children’s best interests or the divorce decree decided in the decision is against the parties’ nuptial agreement.
Take action to prevent a default judgment
The goal of the legal action dispute has to arrive at a fair decision after both parties have had a chance to submit their arguments and pertinent facts. But each individual must contribute in some way to the process. For instance, John might file a lawsuit against Jane after he tragically fell in her restaurant. Jane believes John’s situation to be absurd, but she has a limited amount of time until she must answer. This could be accomplished by the use of a letter or by appearing in court. If she doesn’t, the judge might find in John’s favor and Jane might even be forced to cover his damages.
On the other hand, there have been instances where the plaintiff disregarded the law. This can lead to the judge entering a default judgment or having the case dismissed.
3 ways to prevent a default judgment
- Open, understand, and reply to every papers you receive – Often, a defendant is unaware that they are being sued. If you aren’t regularly monitoring any types or forms of your documents, this is not an acceptable form of defense.
- Act right away – make sure your response is compliant with the rules.
- Get assistance – If there are any circumstances where you are unsure of the reason you were summoned to court, contact a knowledgeable attorney who can explain the legalese to you and put you in the strongest possible position to win your case.
What happens at the default hearing?
In order to determine if a default can be filed, the judge will review your complaint and all attachments, as well as ask you a few questions. The following are some typical grounds for not granting a default at this hearing:
- incorrect complaint service,
- additional details are required before a child support decree may be entered, or
- The defendant is a member of the armed forces and is protected under its Service Members Civil Relief Act.
In a default case, how can the court determine child support?
It depends on the amount of information that is available and the court that your case is in, because some courts approach child support differently in default instances.
If you are aware of it, inform the court about the noncustodial parent’s earnings and employment background. Based on the information you give, the court might issue a child support order.
Some courts will ask CSSD to give them data on the noncustodial parent’s earnings if you have an active case with them. That data may be used by the court to determine child support.
If you have an open CSSD case or apply for CSSD services, you can file a motion asking the court to require CSSD to provide information on the non-custodial parent’s earnings, along with a suggested order, if your case is in Las Vegas court:
• Motion in Default Case for Employer-Reported Wages
• CSSD’s Order regarding Employer-Reported Wages
What occurs if the defendant submits an answer following the court’s entry of a default but prior to the default proceedings?
The defendant must request the court to set aside the default and accept a late response if the court has entered the default or scheduled a hearing for the default:
• Motion and affidavit to accept a late-filed answer and set aside the entry of default
Do I Need Legal Advice to Challenge a Default Judgment?
Yes, it is a great opportunity if you’re trying to get a default judgment overturned, you absolutely need the help of a divorce law attorney. It can be a difficult process that varies depending on the jurisdiction.
Your application to overturn the default judgment may be presented to the court by your attorney. Your lawyers can also guide you through other steps of the divorce procedure, such as the division of assets, determining child custody, and calculating child support payments, if your motion is approved.
People Also Ask
1. What is a motion of default judgment?
Any decision that is issued in favor of one party because the opposing party failed to act on their behalf is known as a default judgment. When a defendant ignores a summons or other court order, default judgment is frequently given in the plaintiff’s favor.
2. What occurs following the filing of a motion for default?
The default judgment shall be subject to reversal by the defendant, and the court shall uphold such reversal. In this situation, new proceedings will be established, and also the court officials will mail notices of new hearing dates to both parties.
3. What will occur if I fail to pay my judgment?
The sum of the first judgment amount will rise daily if a party doesn’t pay their ruling. Each year, a party will be required to pay an additional 10% in interest on any judgment they haven’t paid in full.
You can use the knowledge you have gained about default judgments to better prepare your argument to the judge when your child custody case comes up for the first time. Consider some of the important arguments you need to present against the opposing party to improve your chances of winning the child custody dispute.
At Huggins Law Office’s, our attorneys can help you if you need support challenging a default judgement in your custody case. We give free consultation for our clients with our lawyer. If you have any questions or any inquiries, anything regarding our other service categories related to Child Custody Claims or Divorce, don’t hesitate to call us on (702) 387-4014.
For more information on how https://www.hugginslawoffice.com/ can help you on your Default Judgement for Child Custody, please contact us at (702) 387-4014, or visit us here:
8683 W Sahara Ave #180, Las Vegas, NV 89117, United States