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    jojo55's Avatar
    jojo55 Posts: 29, Reputation: 1
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    #1

    Dec 15, 2008, 01:57 PM
    What do you think will a judge do if no party shows up at a custody hearing?
    Likely just drop the case?

    The situation is as follows:
    She is married to an abusive husband. One day she decided to get out of this situation and left the husband along with their 1 year old child.
    She moved out of state to get away.
    He, the husband then filled for child custody and even tried to press abduction charges on her (which was denied). She then hired an attorney. The gameplan was to quash the case because they hadn't lived their long enough for the state to be the child's home state.

    Fast forward now, the hearing for this case in scheduled in a few days. However, in the meantime her husband followed her to the new state, they made up, are back together, they haven't paid their attornies I'm sure so likely just nobody will show up at all to the custody hearing.

    I guess the judge will likely just drop the case or could there be a different outcome?
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #2

    Dec 15, 2008, 02:09 PM
    Quote Originally Posted by jojo55 View Post
    Likely just drop the case?

    The situation is as follows:
    She is married to an abusive husband. One day she decided to get out of this situation and left the husband along with their 1 year old child.
    She moved out of state to get away.
    He, the husband then filled for child custody and even tried to press abduction charges on her (which was denied). She then hired an attorney. The gameplan was to quash the case because they hadn't lived their long enough for the state to be the childs homestate.

    Fast forward now, the hearing for this case in scheduled in a few days. However, in the meantime her husband followed her to the new state, they made up, are back together, they haven't paid their attornies I'm sure so likely just nobody will show up at all to the custody hearing.

    I guess the judge will likely just drop the case or could there be a different outcome?

    The Judge will dismiss the case unless child welfare is somehow involved. If no one shows up there is nothing to hear.
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,302, Reputation: 7692
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    #3

    Dec 15, 2008, 03:47 PM

    While I wish they would throw the wife in jail for being stupid, going back to an abusive husband, guess she has to wait to be in the hospital and maybe the child seroiusly hurt.

    But the case will be dismissed.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #4

    Dec 15, 2008, 04:27 PM

    I'm not sure what state you are in. Locally (in California) the court would simply off-calendar the motion without prejudice (that is, not hear it) but not dismiss the underlying case. Although technically nothing would happen, there would still be an active case one file in which wife could re-file the motion all over again without paying a new filing fee and starting all over.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #5

    Dec 15, 2008, 04:41 PM
    Quote Originally Posted by cadillac59 View Post
    I'm not sure what state you are in. Locally (in California) the court would simply off-calendar the motion without prejudice (that is, not hear it) but not dismiss the underlying case. Although technically nothing would happen, there would still be an active case one file in which wife could re-file the motion all over again without paying a new filing fee and starting all over.


    Right, and in NY it's simply dismissed. Similar question posted today about someone who showed up late and found the case dismissed, had to refile.

    How long will California hold something off calendar? Is it open ended? (Sounds like if these people are in California they're going to be back in Court again at some point so it would be good to know.)
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #6

    Dec 15, 2008, 05:06 PM
    Quote Originally Posted by JudyKayTee View Post
    Right, and in NY it's simply dismissed. Similar question posted today about someone who showed up late and found the case dismissed, had to refile.

    How long will California hold something off calendar? Is it open ended? (Sounds like if these people are in California they're going to be back in Court again at some point so it would be good to know.)
    We have a 5 year statute for bringing cases to trial, which would apply to a case like this. However, if temporary custody or support orders were entered pending trial the 5 year statute is indefinitely suspended.
    jojo55's Avatar
    jojo55 Posts: 29, Reputation: 1
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    #7

    Dec 15, 2008, 05:22 PM
    Yes, it is a California case.

    She is completely stupid and I fear she will eventually lose her child.

    When her husband first filed for custody and she hired an attorney they filled a response that her husband was abusive, is a danger to the child, has even threatened to kill them!
    This is all in the disposition filled with the court!

    It is unbelievable that they are back together. I'm a relative of her and just watching this from a distance in disbelieve. I was just curious what was going to happen now. Thanks for all the responses!
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #8

    Dec 15, 2008, 05:50 PM
    Quote Originally Posted by jojo55 View Post
    Yes, it is a California case.

    She is completely stupid and I fear she will eventually lose her child.

    When her husband first filed for custody and she hired an attorney they filled a response that her husband was abusive, is a danger to the child, has even threatened to kill them!
    This is all in the disposition filled with the court!

    It is unbelievable that they are back together. I'm a relative of her and just watching this from a distance in disbelieve. I was just curious what was going to happen now. Thanks for all the responses!


    Sometimes the only thing you can do is stand back, be supportive (as best as you can), don't get drawn into the drama and keep your fingers crossed!
    twinkiedooter's Avatar
    twinkiedooter Posts: 12,172, Reputation: 1054
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    #9

    Dec 15, 2008, 06:20 PM

    Her going back to him after having filed paperwork with the court claiming abuse and threatening her life will come back to haunt her. Someone should show up instead of no one show up. Or she could file a motion to dismiss the case and have an order entered to allow her to refile without prejudice. This way, she may be able to protect herself SHOULD she have to refile when he does beat her to a pulp and requests a restraining order.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #10

    Dec 15, 2008, 09:57 PM
    Quote Originally Posted by twinkiedooter View Post
    Her going back to him after having filed paperwork with the court claiming abuse and threatening her life will come back to haunt her. Someone should show up instead of no one show up. Or she could file a motion to dismiss the case and have an order entered to allow her to refile without prejudice. This way, she may be able to protect herself SHOULD she have to refile when he does beat her to a pulp and requests a restraining order.
    Since this is a California case I can assure you that if no one shows up at the hearing on the motion the court will not dismiss the case, only off-calendar the motion. Second, except as to wife's motion to quash (based on the jurisdictional challenge) wife has no grounds on which to seek a dismissal of the case so the court would deny such a motion (you cannot move to dismiss another person's case without a proper legal basis, such as lack of jurisdiction, etc). Finally, wife did not file the underlying action, husband did. So, there is nothing for her to re-file, except of course her motion (she could always do that because off-calendaring a motion does not constitute a bar to re-filing unless the court makes a specific order to that effect, which no judge would due for a non-appearance the first time the matter is set for hearing).

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