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    Filing a motion to dismiss in family court

    Asked Jan 15, 2010, 02:14 PM 10 Answers
    I need to file a motion to dismiss or quash.I can only find forms to be used by county government.Here's the skinny. Case is (brought by county cs dept.) child support only case. The custody case is in a different county and I am the petitioner and she is the respondent in that case.Child support case was heard after finial ruling on the custody case. Child support judge ordered support based on the custody order. Mother was unhappy with what Judge ordered her to pay. Very next day she filed a motion on Fl-390 form (notice of motion and motion for simplified modification of order for child spousal or family support). The rules (listed by the cs dept. this form is for cases that are NOT open with the dept. of child support and the FL-680 and FL-684 forms are the required forms to be used for cases all ready opened with the dept of child support. She list her self as party without attorney. Then she list the county as petitioner (which is correct) she list her self as respondant(is correct) list me as other parent(is correct). Got a hearing approx. 2 months away. She is requesting the court change amount currently order to be paid by that petitioner not respondent or other parent. Keep in mind she is respondent( required to pay support) the county is petitioner. The proof of service is printed on the back of this form. The type of service was by mail showing my name and address and the department of child support address as both being served. Stating the date mailed was 12/18/09 but it was not signed. Which it should NOT have been received by the cleark as such. But it was. Clerk stamp is 12/18/09 at 3:11. Service should have made prior to this stamp. Service even by mail is to be done first before the notice of motion can be file with the court and property filled out and siged. The post office date of mailing stamped on envelope is 4 days later than stated on proof of service. She drove to a different county to mail the doc. Post office then processed as normal which is to send all the mail it receives to the Central California disburstment center which is back in the county she drove from and where the docs were filed. The time of which the formention was done was christmas rush. This delayed the process of delivery and as a result twevel days passed prior to being delivelr to my address. She filed the FL-150 form (income and expense declaration) claiming dept. of child suport is using wrong income information for me. They are not and they have all the current stubs to prove that. She is claiming they are using wrong tax information for her as she is trying to retain the head of house statue for the child which she is not intitled to any more or for 09 as per IRS and state guide lines.She is also trying to get a higher deduction on retirement payments and medical as she is trying to claim entire deductions for all insurance without inclueing what she gets reimbursted from employer on her benefit package. She list no other people living with her ( her boy friend dose) and list her mortgage as 1600.00 but that is the amount of her mortgage and her rental mortgage. Her other two children (adults) live in her rental property. She list no other expenses but list amount of expenses paid by others as 1600.00. She wants the county to use the 1600.00 as an expense deduction without incluing it as income. She also filed with the notice of motion a Fl-341 (c) children's holiday schedule attachment ( with findings and order after hearing or judgement checked) showing her self as the Petitioner in the case this time and me as the respondent. Keep in mind in both cases she is the respondent not the petitioner. The form she is using is intened for use in custody hearings.This is not a form from the custody case. But she is using it to try and change the custody order which is not this courts jurisdiction. Those issues have already been ruled on in the other court.

    I wish to file for dismissal based on all of the above and the following. First of all the case was heard and ruled on the day prior to her filing the motion and there has not been any sucificate changes transpire or a enough time passed for a review. A review was already order for 6 months and is so ordered with a court date on the judges order from the hearing the day prior. Second she is trying to get custody issues heard and changed in support court. This is not a custody case but a support case.

    * Fininaly how dose one respond in the answer when She filed the paper work showing her self as the respondent and the petitioner.?

    The department of child support is not filing a motion to dismiss or quash but has stated to me I may want to in this case. They stated they will be there to do the caluation only and are not there for either party. As it is suppost to be. But they have played fovorite to the mother all along. Not taking into account the benefit to the child or the child's best interest.

    * I will file the response/answer form but how does one file it when it is not clear how to file it.? As the other parent/ the petitioner/the respondent??

    The mother is the master of confusion and badgering. She is good at creating confusion to get what she wants. This case should be stright forward with no confusion. It needs to be quashed or dismissed and I have not been able to find any form in order to do so with the exception of the form to be used by the government agency.

    * Please help me, is there any form I need to use or do I type up the request to dismiss and/or Quash on pleading paper.?

    * If so do I list the cs dept. as the petitioner and myself as the other parent or the petitioner or the respondent in this mater.?

    * Keep in mind this court case is opened by the dept of child support the mother is the respondent and I an listed as the other parent. Please help as Iam not sure how much time I have to file for dismissal or quash.?

    * Should I do it prior to filing a response.?.

    * Also can I have an attorney go with me this time to the hearing as I feel the child support office and the judge have disregarded important issues I have made in the past.?

    I feel they would be more incline to take an attorney more serious. I would not otherwise need an attorney if it were not for this pile of mess and confusion the mother has been allowed to file. But w I would need to ask the court for reimburstment of legal fees as I would other wise quailfy for fee waivers but don't believe a fee waiver would be granted if I use an attorney. I don't want a attorney for the whole duration of this case just for this hearing because I feel an attorney could simpifiy these issues to the child support office and the judge.

    *Do I have to request in the dissmisal/quash the right to bring counsel with me, to this hearing to have him speak for me and /or to counsel me, if the dismissal is not granted.?

    * If I can, do I have to right to retain my pro per status??

    * How will this effect me obtaining a fee waiver.?

    Any and all help will be greatly appreciated. Thank you so much

    Last edited by shonyevone; Jan 16, 2010 at 10:58 AM.
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    10 Answers
    this8384's Avatar
    this8384 Posts: 4,565, Reputation: 485
    Ultra Member

    Jan 15, 2010, 03:21 PM
    Waaay too much information. We just need the basic facts

    First things first: what state is this in? I assume California, but I honestly can't read through all of that.

    If she is trying to have them hear her again and/or hear her in the wrong capacity, you do not have to do anything whatsoever. The courts will correct her.

    You don't have to request to bring counsel; you either do or you don't. Hiring an attorney for one hearing is a waste of time and money. And honestly, I think that you need one. I cannot tell you what a retainer fee for an attorney in your area is but in my state, they range anywhere from $1,500-3,000.

    EDIT: After reading just one of your other threads, I change my advice. I no longer think you need an attorney - I know you need one. You are complicated a process that is already complex in and of itself. And making ridiculous allegations about the mediator "bonding" with your ex is absolutely ludicrous.
    cdad's Avatar
    cdad Posts: 12,566, Reputation: 1424
    Internet Research Expert

    Jan 15, 2010, 07:15 PM

    For one thing Im not sure but from what your saying you just went through all this. So you could show up in court and ask the judge to dismiss the case for that reason alone and get the whole thing dropped. Make sure you bring the old ( newest ) order with you for the judge to examine. Also she isn't allowed to switch court systems like that.
    shonyevone's Avatar
    shonyevone Posts: 20, Reputation: 0
    New Member

    Jan 16, 2010, 11:30 AM
    {personal attack edited out-<>}

    Thank you califdadof 3 for reading my post and answering.
    It is a California case.
    I am familiar with the judge in this case as it's been a nine year stint since this all began. I have heard him several time say (other cases not mine) "if you want it dismissed do the paper work, I have nothing before me requesting a dismissal". So with that in mind I feel that to be properly prepared to ask him for a dismissal I need to file for a dismissal. So I still have the question about preparing the motion. With regards to the heading (as to who is who) and structuring the filing. Also the question about bring counsel with me to just this one hearing. I know there is paper to be filed so as the attorney is not held responsible to file a motion to be dropped as counsel late on. I can ask at the hearing for the court to except a motion to hold the attorney released and harmless of future motions or filings.

    Also any substantial information with regards to the questions asked with regard to the fee wavier (only in connection to the attorney) as I would have to borrow the money to pay the attorney. Again thank to any and all who can help answer these question.
    ScottGem's Avatar
    ScottGem Posts: 64,760, Reputation: 6021
    Computer Expert and Renaissance Man

    Jan 16, 2010, 12:01 PM

    Is this situation related to your other two threads? If so, please do NOT start new threads on the same issue. You would have to provide far less info if you kept things together. In some cases, more info is good, but in others its not. You did provide way too much info here. We volunteer our time here and often cannot spend time wading through all this nonessential data. Better to let us ask for the info we need.

    Basically the situation boils down to this. You have custody of your child, the mother has been ordered to pay support. The mother has filed a petition to change the support order. You feel that petition has been filed incorrectly and you want to dismiss it.

    That's it in a nutshell. As far as I'm aware, a support order can be appealed if a person feels that the law was not followed properly in determining the award. But there has to be a waiting period before asking for a modification.

    If she files an appeal, then you have no part of the appeal. If the appeal is granted, then the court rehears the case and that's when you get involved. If she is asking for a modification you file a motion to dismiss on the grounds that a child support order was only recently issued.
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 80,572, Reputation: 7619

    Jan 16, 2010, 12:41 PM

    I deleted you last ( and somewhat rude) post. Please stop starting new threads, keep it to one, but merely add to it.
    shonyevone's Avatar
    shonyevone Posts: 20, Reputation: 0
    New Member

    Jan 16, 2010, 12:48 PM

    Hi scottgem, No it is not related and yes that is it in a nut shell. But the question is still: Since the child support office is the petitioner in the open case, I am listed a other parent, the mother as respondent, But has listed her self on the motion and the other paper as both the petitioner and the respondent. How should I display who is who on the heading for the motion to dismiss to be filed? Thank You
    ScottGem's Avatar
    ScottGem Posts: 64,760, Reputation: 6021
    Computer Expert and Renaissance Man

    Jan 16, 2010, 01:10 PM

    Is she applying for a modification or is she appealing the support order?
    cdad's Avatar
    cdad Posts: 12,566, Reputation: 1424
    Internet Research Expert

    Jan 16, 2010, 01:31 PM

    Sample Wording 4 CA
    shonyevone's Avatar
    shonyevone Posts: 20, Reputation: 0
    New Member

    Jan 16, 2010, 03:11 PM

    It is not an appeal she applying for a modification.
    Thanks for the sample wording 4 Ca I think it will be quite useful to me.
    Thanks to all
    ScottGem's Avatar
    ScottGem Posts: 64,760, Reputation: 6021
    Computer Expert and Renaissance Man

    Jan 16, 2010, 03:24 PM

    So you simply walk into court, tell the judge that support was ordered on x date in y court and ask for a dismissal.

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