Court hearing for motion to modify


#1

I have had sole custody of my children for almost 10 years (order granted in NY). My ex husband has not seen my children in over 8 years and has not had any contact with them at all in more than 5 years. My ex (who lives out of state) filed for custody and visitation in December, 2008 in wake county family court. There was no mediation due to distance. There was a hearing in 2009 that my ex had calendared, but then did not show up for. My evidence was heard by the judge and I maintained sole custody as well as my ex who had arranged visitation through me to having supervised visitation lasting 2 hours per month at Time Together. In over a year since the order was entered, my ex has never exercised his supervised visitation. My ex calendared his motion earlier this year without consulting me. He sent me an unstamped calendar request and notice to appear that said November 4, 2010; however, the date was never docketed. Apparently my ex has calendared his motion again to be heard on December 16, 2010 (6 days from now) and once again did not consult me on the date or time needed. He contacted Time Together for a supervised visitation and the staff at Time Together who contacted me were the ones who advised me that I am supposed to be in court next week! I have looked at the docket and the matter is indeed calendared, but only for one hour. I want to file a motion to continue, but it would have needed to be filed by two days ago at the latest per district court rules. I am not certain if I can do an oral motion in open court either. My grounds are: I have not done any discovery for the case and would like to. I do not have time to adequately prepare my case since I just found out less than a week before the hearing. I am in need of much more than an hour of the court’s time to present my case. I have not prepared my children in case they need to testify or subpoeneaed any witnesses. Lastly, my ex marked on his calendar request that he e-mailed me to consult on the date/time; however, he did not. He has a significant history of not following proper procedure. Can I still attempt to file a written motion to continue on Monday or make an oral motion to continue in open court?


#2

I suggest you do both.