Divorce Osc Hearing
My boyfriend's ex hasn't filed a response to his OSC to modify Custody?
My boyfriend filed an OSC to modify custody of his kids because he barely gets to spend any time with them. He finally has a full-time job and a place to live after the divorce and can provide a home for them. He filed an OSC and it is scheduled for Nov 1st. His ex hasn't filed a response yet. The hearing is only 5 court days away including today. If she shows up and her response is either filed late (between now and then) or not at all, can he request a default judgment be issued since she didn't respond in time or at all?
The answer to your question really depends on the state in which you live and your state and county local rules regarding filing deadlines for responses to Orders to Show Cause.
That being said, it appears your boyfriend and his ex are both self-represented litigants. Judges often allow more leeway with parties who are not represented by attorneys; therefore, the Judge may allow the ex to respond if she simply appears in Court. Since your boyfriend in the "moving party," the Judge should allow him to present his case first. It is important that your boyfriend start out by saying:
"Your Honor, Ms. X did not file a responsive declaration in this action. As such, I am requesting this Court enter and ORDER (not a judgment) for the following, which I requested in my moving papers: [list what he wants.] Although I have not been able to spend much time with our children in the past, I now have a full-time job and permanent residence at which I have room for my children to visit. The children are now ages ____ and _____, and I believe it would be IN THEIR BEST INTEREST (very important catch phrase) to spend more time with me."
Your boyfriend should keep his statements directed to the Judge and not respond to her in any manner. If the Judge lets her speak, he should not challenge the Judge for doing so.
As I stated above, your boyfriend cannot get a "default judgment" against his ex for her failing to file a response. This is the wrong terminology -- he can request an Order based on his filing of an OSC, not a Judgment.
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