Tried to emancipate, CP denies, how to proceed?

[socrateaser]

>Question:
>
>     1.  Will I be able to ask that her "Objection" be
>dismissed due to irellevancy or failure to properly serve
>Notice to Me?

No. The court is obliged to do fair play and substantial justice for the litigagants, even if the pleadings are malformed. Further, there is no requirement that a person offer relevant objections in writing, as long as they offer a good faith (clear justification) oral argument/testimony at the hearing.  

If the response at the hearing is frivolous, you could ask that the other party pay your court costs as a sanction.

>
>     2. Can the judge decide the issue on its merits (or lack
>of) and stop my garnishment at the hearing?

Yep. Probably will, if you have offerred substantive proof satisfying the criteria of emancipation (which, should have been attached to this pleading of yours). If it wasn't, then you should file a supplemental declaration in support of your request for hearing, with the relevant proof attached.

You have the burden of proving that the emancipation has occurred. If you don't provide evidence sufficient to enable the trier of fact (judge) to rationally find in favor of you, then you lose.

PS. What you filed was a motion. Just because you styled it as a request, doesn't make it any less a motion. Any application to the court for an order is just a motion by a different name.

[Darryl]

 I did not attach anything (OOPS), thought I could present it at the hearing and that Respondent surely could not contest that the child graduated college.


   1. Should I Title the filing "Supplemental Declaration" or "Supplemental Declaration in Support of Request for Hearing"?

   2. Do I also mail a copy of declaration and "evidence" to Respondent?

   3. All I can provide without asking my daughter for an affadavit (which she would provide, but wish to keep her out of it) is the invitation to her graduation sent to me by her, an email telling everyone of her new address out-of-state, and of course, the Commencement Program from the ceremony that lists my daughter as having received her degree. Is this adequate?

   4. I expect other party to admit that daughter graduated college, is now living out of state and has obtained a full time job. Does this help being only an admission, if evidence is not filed ahead of time?

[socrateaser]

> I did not attach anything (OOPS), thought I could present it
>at the hearing and that Respondent surely could not contest
>that the child graduated college.
>
>
>   1. Should I Title the filing "Supplemental Declaration" or
>"Supplemental Declaration in Support of Request for Hearing"?

"Petitioner's Supplemental Declaration in Support of Request for Hearing re Minor Emancipation"

>   2. Do I also mail a copy of declaration and "evidence" to
>Respondent?

Yes. Serve by mail.

>
>   3. All I can provide without asking my daughter for an
>affadavit (which she would provide, but wish to keep her out
>of it) is the invitation to her graduation sent to me by her,
>an email telling everyone of her new address out-of-state, and
>of course, the Commencement Program from the ceremony that
>lists my daughter as having received her degree. Is this
>adequate?

Caveat: If your ex is not represented by counsel, then she won't know you're offering inadmissible hearsay evidence at the hearing, so most likely whatever you offer will be admitted, especially if you provide it as part of a written declaration. Having said this, the following applies:

Commencement program, if produced by the school, is a business record and is admissible as evidence of the child's graduation. That's good evidence.

Email is hearsay, and you probably cannot authenticate it as being what it's purported to be without your daughter's presense at the hearing to testify to its authenticity.

Invitation is hearsay, and it doesn't prove anything more than does the commencement program.

You need daughter to appear or get her sworn affidavit (notarized), stating that she has graduated, has full-time employment and has a permanent residence other than her mother's home -- nothing else is required other than the three plain statements. Since this is a summary hearing, the affidavit is enough. If there were a trial scheduled, you would need your daughter's presence.

>   4. I expect other party to admit that daughter graduated
>college, is now living out of state and has obtained a full
>time job. Does this help being only an admission, if evidence
>is not filed ahead of time?

A testimonial admission creates a rebuttable presumption of the truth of the fact admitted. So, if she admits all of this at the hearing, then that's the end of the matter, unless she has some other explanation the rebuts her own admissions. But, if she denies it, then you need to prove it with evidence other than your own testimony, or you lose.

I'm sure that this is not about the emancipation, but rather about your unpaid portion of the tuition. Your ex probably thinks that by not opposing the emancipation, that she will never get paid.

And, she's probably right. Whereas, at the hearing, she can ask the court to give her a money judgment for the remaining tuition (and, she probably doesn't even know that's what she wants, but that's what she wants).

You could just dig up the money and pay her off, and she probably would stipulate to the facts of the emancipation and you'll be done with it all.

[Darryl]

Will probably ask my daughter for Affadavit also, though did not want to involve her. But, three simple statements, should be painless enough.



As always, Thank you, thank you, thank you!!!!!!!!!