Wording of motion

[DecentDad]

Hi Soc,

Recall-- Petitioner filed for change of custody with a new judge after final judgment less than a year ago.

My first crack:


MOTION TO TRANSFER PETITIONER'S OSC TO DEPT XX WITHIN (THIS COURTHOUSE)

ME, Respondent, respectfully moves that this action be transferred back to Dept XX within the (same courthouse) for reasons of judicial efficiency and unfair prejudice with grounds set forth below.

The Hon. Judge Firstname Lastname, presiding over Dept XX, was assigned this paternity case in May 2004 upon the resignation of the Hon. Judge Firstname Lastname who presided over Dept YY.

The Hon. Judge Firstname Lastname of Dept XX has heard numerous OSC matters involving this case, has reviewed the 120-page custody evaluator's report, has heard witnesses, and has made rulings as to the child's best interest.  

Judge Lastname most recently issued orders that Respondent and Petitioner are to attend Parenting Without Conflict classes that have yet to begin.  This did not prevent Petitioner from requesting - yet again - sole custody from a new judge.

To expect a new judge to gain the familiarity with the case to rule in a child's best interest on a request to change custody is a tremendous burden on the court.  It's also an unnecessary burden as Judge Firstname Lastname of Dept XX is still on the bench.

Finally, to give Petitioner an opportunity to "start over" with a new judicial officer to rule anew on testimony already heard before another department in the same courthouse is unfair prejudice.

For the grounds explained herein, Respondent moves that this court instruct Petitioner to file her most recent action in Dept XX.


1.  Can you please offer quick guidance?

2.  Also, would I file this at the same time as my response to the OSC?


Thanks,
DD

[socrateaser]

If you haven't already responded to the OSC, then you should ask for this affirmative relief as part of your responsive declaration (requests for affirmative relief are allowed in a Cal. OSC family law response).

Otherwise, you should use FL-301 and FL-310, and attach a declaration thereto. I suggest the following:

I, YOURNAME, declare:

1. That I am Respondent in the above-entitled action, and if called upon, I could testify competently to the matters set forth herein of my own personal knowledge:

2. A final judgment containing custody orders concerning Petitioner's and my minor child was entered ??/??/????, by Judge X, in Dept. Y of this county. The case was originally filed ??/??/????.

3. Judge X has heard and decided substantially all of the matters between Petitioner and myself concerning custody of our minor child, including witness testimony and review of an extensive 120-page custody evaluation report.

4. Because Petitioner's instant OSC is filed only ?? days after final judgment in the prior case, it seems to me, that Judge X, who is already completely familiar with the various issues concerning Petitioner and myself, should be better able to efficiently resolve this new action with a minimum of resource costs to both the Parties and to the court, and that presenting this matter to a new judge at this time does not serve the interests of justice.

5. For all of the foregoing reasons, I respectfully request that this court confir with Judge X, and if the court finds that Judge X is the better choice to resolve this new matter, that the instant matter be transferred back to Department Y and set for hearing therein.

I declare, under penalty of perjury, under the laws of the State of California, that the forgoing is true and correct.

By: _____________________
YOURNAME
Respondent, Pro Se

[DecentDad]

Ok, thanks, that's crystal clear on how to formulate the argument.

BTW, this OSC for custody and visitation modification was filed 8 months after final judgment was entered.  Final judgment was entered 3.5 years after original filing date, so it's not like Petitioner suddenly found out how co-parenting will be some time after final judgment.

I've got until first week of Aug to respond (I presume 10 days out plus 5 mailing days), so plenty of time.


1.  If my request to move back to original judge is denied, does that mean I wouldn't have an opportunity to address the distortions and mistruths contained in Petitioner's declaration (i.e., recall that you suggested I respond point by point)?

2.  Or would this declaration (re transfer of instant action) be in addition to the other declaration that addresses the issues Petitioner raised?

3.  And, if transferred back over to Dept Y, would Petitioner re-file, and I'd have the same opportunity to respond once again?

Thanks

[socrateaser]

>1.  If my request to move back to original judge is denied,
>does that mean I wouldn't have an opportunity to address the
>distortions and mistruths contained in Petitioner's
>declaration (i.e., recall that you suggested I respond point
>by point)?

If you're asking for this relief in your responsive declaration, then you should ask for it in addition to all of the other issues. Just put a big heading with a roman numeral to separate the various issues (however, don't change your numbering, i.e.:

I ISSUE
1.
2.
3.
II. ISSUE
4.
5.
6.
III ISSUE
7.
8.
9.
IV CONCLUSION
For all of the foregoing reasons, I hereby request:
10.
11.
12.
13.
etc.

I declare, under penalty...

By: ____
Respondent, Pro Se

>
>2.  Or would this declaration (re transfer of instant action)
>be in addition to the other declaration that addresses the
>issues Petitioner raised?

See above.

>
>3.  And, if transferred back over to Dept Y, would Petitioner
>re-file, and I'd have the same opportunity to respond once
>again?

Nope, the case would transfer, and the clerk would probably put the old number on it, and the new number, and consolodate the two, but that's the court's problem.

[DecentDad]

Got it, thanks.

One flawed assumption on your part, though.

Case has the old number, as always.

So, if it's before a new judge, what does that mean?!

[socrateaser]

>Got it, thanks.
>
>One flawed assumption on your part, though.
>
>Case has the old number, as always.
>
>So, if it's before a new judge, what does that mean?!

Nothing. Case number should be the same, but sometimes, courts number system uses dept. code, etc., so number could have changed for post judgment relief. If it didn't then that just makes transfer back to old judge even easier.

Of course, it could just be that your old judge may not want to hear anymore from you -- I guess you'll find out soon enough.

[DecentDad]

.