Motion to Show Default

[TJRodolph]

Hello again Soc,

My change of custody hearing date is 3/23. In the motion it states if the other party wants to submit a response to it, she must have it in the mail 8 days prior to the court date. (which would be next week). She has not done so yet.

All she has done is send a letter to the judge asking to have the court date delayed......which was granted and is now 3/23.

Custodial mom never bothered to file a response for my motion for parenting time assistance. I expect that she will not file a response for this change of custody either. She does not have a lawyer representing her.

I was thinking of filing a Motion to Show Default (on the appropriate date), just to bring to light to the court that she failed to submit a response.

Questions:

1. Would there be any benefit to it?

2. Is it assumed by the court that everything I said in my motion and affidavit to be true since the other party did not deny anything in a response?

[socrateaser]

>Questions:
>
>1. Would there be any benefit to it?

A default is taken to a petition/complaint (which is only the original/first pleading in a case), when the defendant/respondent fails to appear and answer/move to dismiss/demurrer the complaint. You cannot obtain a default to a motion when the other party has actually appeared in the case -- and this has happend in your case.

There is no requirement that an opponent respond to a motion, and nothing to take a default from. You're trying too hard to be a lawyer, at the moment.

>2. Is it assumed by the court that everything I said in my
>motion and affidavit to be true since the other party did not
>deny anything in a response?

No. That doesn't even happen where a real default is taken. A default is not a ruling on the merits of a complaint/petition. It is simply a recognition by the court that the defendant/respondent has failed to appear and defend, and therefore the plaintiff/petitioner is entitled to a default judgment, which may later be set aside on request of the defendant/respondent, should that party appear and the court find that the failure to appear was the result of fraud, mistake, duress, iillegality, undue influence, inadvertance, unfair surprise or for other good cause shown.

[TJRodolph]

Gotcha. Thanks. I was trying to see if there were any options for gaining some advantages.