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proudmom14 · Sep 8, 2015, 12:27 PM

RFO filed, proof of service to Attorney filed, hearing held, orders made. New orders eff 8/12/15, I assumed Petitioner aware and when reminder sent via email that new schedule effective 8/12/15, he indicated he never received any orders. Petitioner missed 2-mediation appts. 1-hearing on RFO, 1-conf.-trial and 1-OSC on court's own motion to dismiss for failure to complete (pending since 2006/7). Trial set for 12/09/15.

1. Can he file any motions to set aside new orders, claiming orders were not received?
2. Is it not his Attorneys' responsibility to notify him.
3. Proof of service filed by Clerk's office regarding Med/OSC/RFO.
3. There has never been a final judgement in this case and that is what I am trying to obtain.

Thank you.

cdad · Sep 8, 2015, 02:11 PM

If the papers were served properly then he should have gotten notice. The courts would also mail him papers to his registered address. Is he trying to claim he had no notice and that the orders should be set aside due to lack of notice? Has he filed anything yet or his attorney ?

proudmom14 · Sep 8, 2015, 08:07 PM

He visited the courthouse today, not sure what if anything he filed since he has an attorney. He indicated in a message that he was filing an injunction?

Fr_Chuck · Sep 9, 2015, 01:58 AM

He may file. It will be up to the court to decide if they will accept, and if they do, up to the judge if he will do anything about it.

AK lawyer · Sep 9, 2015, 05:22 AM

You are not clear that the attorney attended the hearing. Are you sure that the attorney has filed an appearance in the case?

I am assuming that the petitioner's attorney attended the hearing, although the petitioner himself did not. Under these circumstances yes, the attorney should have informed the petitioner of the hearing results.

He can ask that it be set aside, but it is extremely unlikely that the set-aside will be granted, absent something you haven't told us.

ScottGem · Sep 9, 2015, 05:53 AM

I agree with AK, if the attorney was present at the hearing where the orders effective 8/12 were issued, then any attempt to claim he did not receive the orders will be met with a denial of the claim. If the attorney affirms that he did not inform his client, the attorney can be accused of malfeasance, so the attorney is not going to admit that. If, the attorney (and the petitioner) were not at that hearing, you will have to prove that attempts to serve notice were carried out according to law.

Note, abbreviations vary from court to court, so please detail what you acronyms mean. Also, any question on law needs to include your general local as laws vary by area.

proudmom14 · Sep 9, 2015, 07:20 AM

The Attorney was not present. Proof of service by court clerk were filed and none were or have been returned. Attorney's address was confirmed via CA state bar website. Please note, the last contact petitioner had with his Attorney was back in 2007, no substitute of attorney has been filed. Is there anything I can file to prevent/counter/?? His claim of injunction or wait to see if the judge signs? Thank you. Local18

ScottGem · Sep 9, 2015, 08:24 AM

OK, so now the question is what was served? Where the orders issued by the court served on him and if so, what proof of service do you have of that? Or is the service just notice of the hearing? This certainly changes things a bit. And it hinges on what he was served with and what proof of service there was. Since neither he nor his representative was in attendance at the hearing where the 8/12 orders were issued, it is a good bet that he will be able to get a new hearing or have the orders vacated until the 12/9 hearing.

proudmom14 · Sep 9, 2015, 08:50 AM

Notice of 2-mediation appts. before hearing on 5-12-15 (both missed and he was aware, left me a text msge.indicating he was not attending because he is waiting for the child support hearing he filed on 2-15-15 with the Child Support Services - different case# and which I am trying to consolidate). Notice of both Order to Show Cause re: dismissal of Petition and Notice of Trial Setting sent to Attorney. Petitioner was aware and as to why his Attorney did not appear is unknown.

AK lawyer · Sep 9, 2015, 10:33 AM

Originally Posted by proudmom14

The Attorney was not present. ... the last contact petitioner had with his Attorney was back in 2007, no substitute of attorney has been filed. ...

Originally Posted by proudmom14

... Petitioner was aware and as to why his Attorney did not appear is unknown.

Now it's obvious why the attorney didn't appear. The attorney hasn't seen nor heard from his/her client for eight years. As far as the attorney is concerned, this case was over back then. The attorney has no obligation to keep in contact with the client forever. I would bet that, until you filed your recent paperwork, that court considered it a closed case. I'm surprised that the judge didn't catch it. The attorney may very well no longer have any contact information for the client.

You need to serve the papers on the client (the "petitioner"), not this attorney. I suggest that you do so with a process server, or at least via certified mail.

proudmom14 · Sep 9, 2015, 12:15 PM

You are correct. The court filed an OSC (order to show cause) to dismiss case for failure of Petitioner to file dismissal. I should have had the case dismissed, which would have allowed me to start my own proceedings. All information provided has been helpful. Thank you once again. *IBEW Local 18*

proudmom14 · Sep 9, 2015, 02:11 PM

Before Petitioner, himself, files motion to vacate (even though he was aware), doesn't he need to file substitute of attorney first?

cdad · Sep 9, 2015, 02:44 PM

Does the child support office know you filed custody papers? Wasnt child support decided at that time if there was a drastic change in custody ?

proudmom14 · Sep 9, 2015, 03:34 PM

Yes, copies were sent to child support, support was set at $0.00 due to other parent *choosing to be underemployed. This case has been complexed from the beginning. I was unable to afford legal representation and therefore trying to get final judgement on my own, hopefully everything will work out. :-)

cdad · Sep 9, 2015, 05:57 PM

Was there a person representing the child supprt office there to make this recommendation ? They should have applied something to child support. Underemployment isnt an excuse to zero out child support.

proudmom14 · Sep 9, 2015, 06:15 PM

Yes, there was. Unfortunately I seem to be the person with a high income and now it has been proposed I pay other parent $1027.00/Monthly. Which is beyond the means of what child requires p/month and which is more then the o/p income p/month as well, which is frustrating. It looks like I will have to search for legal assistance :-(

proudmom14 · Sep 10, 2015, 12:35 PM

Should I file any additional paperwork? CA - Family Status as of today, 9/10/15

This is long and a bit detailed....apologies.

I'm sure an "ex parte" will be filed req. temporary custody pending hearing. (Child is 11-yrs. old, no harm will come to child, etc., etc. and he is satisfied with new schedule).

1. Other Parent texted child "I have a Lawyer and Mom is in for a big surprise and I don't care if she sees this text."
2. Text sent to me "getting an injunction any day, no worries enjoy it while you can, expletive, expletive, etc., etc.,
3. Additional texts to me: name calling, profanity, etc., etc.,

*Copies of orders were sent via certified mail (9/10/15) this morning to other parent as suggested and will be filing proof of service with court this afternoon?

Should I file my own request for temporary custody pending hearing? This was not requested when filing modification as I do not want to keep child from seeing other parent, his grandparents and uncle (as they all reside together) yet, he wouldn't hesitate to do that to me and which I'm sure he's trying to do. He does not have child's best interest at heart, he continues to deny child to attend family events and special occasions just to hurt me, not realizing he is hurting child.

The other parent will continue to have joint legal custody and will continue to see child. Modification from joint physical changed to Sole Physical with me (where he has his own room and bed) instead of sharing room and bed with other parent. The only change in visitation was that child would have less transitions monthly (6 instead of 12) 1-overnight during week 2x month instead of previous 8-overnights/month. Other parent still has 1/2 summer/spring/winter breaks along with alternating Holidays and weekends.

Any thoughts? Thank you.