Answer to Complaint


#1

I wrote my Answer to my husband’s Complaint of sole custody, in which he states that I am not a fit and proper person to care for our minor child, and that he is. My husband and I just separated and he has criminal charges pending within our county that are DWI, probation violation, and Domestic Violence in regards to myself. It makes no since that he sent this Complaint to me in the first place except for the fact, that I was the homemaker and he the income and he now knows that i wouldn’t be able to hire an attorney. Be that as it may, I have written a Motion to Dismiss and Answer with attached affidavit’s from my family, and those that have witnessed his abandonment of the home and minor child, oodles of emails that i spoke with his mother in regards to his spousal abuse and abandonment and alcohol abuse. Ok, my question is this. … all together the attachments to my Motion/Answer is about 4 inches thick. I have three copies made and i have each affidavit signed before a notary… i have my verification and certificate of service… ( i use to be a paralegal so long ago) Do i have to file his copy that goes to his attorney with the clerk of court first, or do i just file my information w/ all the attached copies and then make a copy of the filed paperwork and send to his attorney’s office? Also everything that goes to the judge must go to his attorney also, correct? can i just send the Answer/Motion without the attachments to his attorney? Also i spoke with legal aid in my county and they said that in the WHEREFORE… I could ask for custody and would not need to write a counterclaim… something about that doesn’t sit right with me when i look at it. Today is December 14 and I started to file today because Friday is my deadline but something told me I needed to research more. Seems like I would need a separate action … My husband was also stating that we had substantial marital property and wanted an interim … i also asked in my Answer for it to be dismissed and held over for a Separation agreement or Divorce. Then yesterday i received in the mail a Notice of Hearing… stating a temporary custody/mediation hearing… i don’t understand why I received that before I have even filed my Answer. Sorry for all the questions, but how likely is it that a judge will dismiss a Plaintiff’s Complaint upon request from the Defendant (myself) due to overwhelming evidence and a fraud upon the court? this is my Motion excluding the actual dates and info…

That the Complaint fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b) (6) of the North Carolina Rules of Civil Procedure based upon the following:

1.  That the plaintiff’s Complaint is void of any allegations or findings of abuse or neglect of the minor child by the defendant, name excluded, or that I am in fact unfit in any way to have custody of the minor child; to wit:  name and date excluded.

Thank you so much for your help!!


#2

A motion to dismiss is not the proper response as there are no legal grounds upon which to dismiss his custody claim. You need to file and Answer which admits or denies each allegation in his Complaint, and include counterclaims for temporary and permanent custody, child support, post-separation support, alimony, attorney’s fees and equitable distribution. The affidavits your family has supplied you with can be used in support of your claim, and depending on your county may also be used as supplemental evidence at a temporary custody hearing.
You need to file your Answer and Counterclaims with the court, and should send his attorney a file stamped copy. The affidavits need not be filed and served until 10 days prior to a temporary custody hearing. These documents are filed with the clerk of civil court under the file number on his Complaint.
You should not be sending anything directly to the judge at this point, but yes, every document filed with the court should be copied to his attorney.
You do need to make a counterclaim for custody (permanent and temporary) in order to be able to schedule the temporary hearings.
You may file a motion to extend time to answer by Friday, have the clerk issue an order to extend, and you will then have an additional 30 days to complete your answer and counterclaims.
As for his claim for distribution of property, you must also make a counterclaim. There are no legal grounds to dismiss his action. You may of course attempt to reach a settlement during the pendency of the action and resolve all issues via Separation Agreement, but the court will not dismiss his claim.
The court can set custody mediation at the time an action is filed, your response is not needed for that to be scheduled.
Your 12(b)6 motion is not proper. As the father of the child he can seek custody, and can allege that you are not fit and proper. NC is a notice pleading state and no specifics must be stated in the pleadings, they are meant only to put the other party on notice of what the Plaintiff intends to prove at trial. The court will determine the fitness of both parents and award custody based on its findings as to what is in the best interests of the minor child.


#3

Amazing. Thank you so much for your help, I would have done everything all wrong. When i ask for a 30 day extension for the Answer/Counterclaims do i have to write it, or go to the clerk of court and ask. (Gaston County)
On Monday I have a hearing for Temporary Custody and Mediation… what should i take with me to prepare for that and legal aid told me to ask for the hearing to be continued so that I would have more time to seek counsel. I have not filed the affidavit’s from my family, friends and neighbors with the court yet, will I be able to use them on Monday? Will the Temporary Custody hearing be before a judge? We have only been married a year and a half, should i still ask for alimony, etc? Can i contact his attorney and ask for an extension on the hearing for Monday?


#4

You will file a written motion to extend time, and prepare and Order granting the extension, which the clerk will sign.
You should indeed attempt to have the hearing continued, but need to be prepared to testify as to why the children should be with you. Affidavits must be filed and served 10 days prior to a hearing.
All other issues will be handled at separate hearings. You can and should seek support, and can be awarded the same. The length of the marriage is a factor in determining support, but that does not mean no support is awarded for a short marriage. A rule of thumb is that support lasts about half the length of the marriage.
You may contact his attorney and ask that he consent to a continuance.


#5

Thank you so much, I have written my Motion to Extend Time and Order granting the extension, which i will take to the clerk first thing in the morning. I have left a message with my husband’s attorney asking for a continuance for the hearing on Monday.
I don’t know what i would have done without your advice.
Thank you again.


#6

You are most welcome, I wish you the best.