Requesting later date for a hearing

[TJRodolph]

Hi again Soc,

Our 1st hearing for change of custody is 2/14. I mailed (served) the custodial mother her copies of the motion and affidavit within the allowed time by MN law (17 days). I could have mailed the papers earlier, but figured it in my best interest to wait till I HAD to. Which only gives CM 2 weeks notice.

Today I received a copy of a letter CM wrote to the judge directly, requesting to reschedule the hearing as plane tickets for her would be $1000 or over since it is less than 21 day notice. And that any other form of travel would make her miss too many days of work thus lowering and/or forfeiting her health benefits and therefore is requesting a later date so she may be present for the hearing which was totally unexpected.

She also asked in her letter if a phone hearing is possible.

I sent a letter once to this same judge during my parenting time hearing, and the clerk sent it back saying I cannot communicate with the judge that way.

The CM was allowed to interview with the parenting time investigator by phone, but she had to show up for the actual hearings. I totally object to any phone hearings and I object to rescheduling the hearing date.

Questions:

1. Doesn't the CM have to file an actual motion for continuance in order to get the date changed?

2. Assuming CM's letter just gets sent back to her stating she cannot communicate that way, and she does not show up for court....CAN the judge reverse custody based on my affidavit and motion and supporting evidence, even if only by default?

3. Are phone hearings allowed in family court?

[socrateaser]

>Questions:
>
>1. Doesn't the CM have to file an actual motion for
>continuance in order to get the date changed?

The letter can suffice as a motion, if she "serves" a copy on you, which means that some disinterested third party stuffs the envelope and mails it, and includes a sworn statement certifying that they did so.

I can't advise you to misrepresent facts to the court, so if you've received the letter then you have actual notice, regardless of whether you were legally served or not. However, in the future, if you never receive a letter and it is a surprise, then you have a legal objection.

If you treat the letter as a motion, then you can file a response -- just make certain that you serve the other parent with a certificate, and file the original proof of service with the court. Otherwise, you will have made the same mistake as your opponent.

The court may dispense with the formalities -- it's hard to say.

>2. Assuming CM's letter just gets sent back to her stating she
>cannot communicate that way, and she does not show up for
>court....CAN the judge reverse custody based on my affidavit
>and motion and supporting evidence, even if only by default?

Yes, but he won't. There's zero chance that the judge will not order a comprehensive custody evaluation, before making a final decision.

>3. Are phone hearings allowed in family court?

Yes, especially for preliminary hearings where there is little emphasis on witness credibility via body language. If the court were taking testimony and permitting cross examination, then there would be no phone hearing permitted.

[TJRodolph]

Ok, I'll just wait and see what happens. The custodial mother never specified a specific date she wanted, just that she is requesting a later date and if phone conference is allowed. I'll pray that the judge's clerk just sends her letter back saying that is not the correct way to communicate with the court.

Oh, and the letter was sent certified, with return receipt (which wasn't necessary if she had someone sign an affidavit of mail service)...so no proof that a 3rd disinterested party mailed it.

Question

1. If for some reason the judge allows to change the date...is there a timeframe that the court has to notify me of that date?

2. Would the court ask me if I had any objections before changing the date?

[socrateaser]

>Question
>
>1. If for some reason the judge allows to change the date...is
>there a timeframe that the court has to notify me of that
>date?

Before the hearing.

>
>2. Would the court ask me if I had any objections before
>changing the date?

No. You have notice, so if you have an objection, such as there's not enough time, or you want to specify a date, or you think that the communication is improper, then you need to say so.

Different courts deal differently with letters like this -- so do different clerks. One clerk might send the letter to the judge's assistant, another may send it back. It's not unusual for an attorney to use a letter to request a telephone hearing, because the attorney will copy the other attorney and the judge will recognize that this isn't an ex parte communication. Also, the attorney will sent the letter direct to the judge rather than to the file clerk. The file clerk is likely to send a letter back, whereas the judge's assistant is likely to ask the judge if he/she wants to allow a telephone hearing.

Keep in mind that the court is just another job, and people with personalities frequently prevail over rules, except where a rule has a substantive effect on the outcome on the case.

"De minimis non curat lex", i.e., the law does not deal in trifles.

[TJRodolph]

I will probably just wait and see what the judge does with her letter, as I do not want the judge to think I am just trifling or being unreasonable. I just dont feel she should be allowed any leniency.

However, her reason for requesting a later date is to suit her own agenda, to accomodate HER work schedule, and HER finances. She is the one that has violated a few different issues in the court order. She comes up with an excuse for every single thing I have voiced concerns about. I have not violated one thing in the order.

The only thing I feel really good about is that the judge was on my side during the parenting time hearing, and it showed in the order she signed. I am hoping she is on my side again.

questions

1. So what would be the proper way to let the court know that I think the other parties communication is improper and that I want to keep the current date?

2. Wouldnt it look bad on the other party for requesting a different date just to suit her personal agenda?