Modification to Custody Hearing Coming Up

North Carolina Divorce Law Divorce and Separation Answers
1

My hearing to modify custody is coming up quickly and I am getting nervous about how things are going with my attorney. I’m not sure he is doing what he is supposed to when he is supposed to.

Here are the basics. I lost my job (office closed) and was offered a job in FL. My ex (who has never really been there before and owes tons of child support) filed to restrain me from moving to FL and to modify custody, visitation and child support back in mid-July, but no hearing was set at the time.

08/04/08 - I moved to FL with children to take the job.

08/06/08 - Emergency hearing attempting to restrain me from moving and compel me to come back. The attorneys worked out a temporary visitation order through Jan 2009.

12/02/08 - my atty received a notice of hearing from ex’s atty. I never saw anything else and my attorney did not receive anything else.

I kept calling the court and was told there was a calendar call set for 12/19/08. No notice was ever sent to either me or my atty.

I called the court after 12/19/08 and was told a hearing was set for 02/16/09.

Neither I or my atty have ever received any notification of the hearing date.

Two weeks ago, I spoke with my atty and we discussed that a hearing was set, yet no Discovery Request had been sent and he had not filed a response to the Motion to Modify Custody.

He said he prefers to wait until just before the hearing to file a response, in case something happens between now and then that I want to include. That made sense to me. He sent me a standard Discovery, which I added to and sent back. A week and a half goes by and I see and hear nothing. He also mentions that he was not aware of the Calendar Call and will not be available on the hearing date of 02/16, becuase he has been elected to the House and will be attending to his duties out of town and he suggests handing me case over to an associate in his firm.

I sent an e-mail to his assistant on 01/15 stating I was getting nervous because we were about 30 days out and I had not seen the Discovery sent. No response.

I finally reached my atty on 01/20. He was to grab my file and return my call. He didn’t. The next day I managed to reach him again and he said the Discovery went out the day before (01/20). Thank God!

Am I crazy or shouldn’t the discovery have gone out a long time ago. I know my ex has 30 days to respond. What if the hearing comes up and they have not responded?

What if my atty isn’t available for the court date and I don’t want one of his associates? Am I stuck?

2

Robinp-

What county are you in?

3

Case is in Mecklenburg

4

Ok, first of all I would say that the discovery request should have went out long before 1/20. I know in my current case discovery actually was sent by my attorney 2 months prior to my trial date because the other side needs time to respond and you have to have time to review discovery and get your case together before the trial date. Also, keep in mind that your ex’s attorney can request more time to respond to discovery and I would bet he will probably do that do to the fact that the discovery was sent 1/20. So your court date of 2/16 might get moved out if your ex requests more time to respond to discovery. Keep that in mind.

As for the issues with your attorney, I would write a firm letter expressing your concern that the discovery did not go out in a more timely matter, the issues of him not returning calls and the possibility that these delays coupled with your attorney’s full agenda due to his House election could be detrimental to your case. Ask him to contact you on how he plans to proceed regarding discovery, the possibility that your ex could require more time to respond, and his intentions to be in court on February 16 on your behalf. If he can’t be in court on the 16th and you want him there and not an associate you can ask him to continue and have the hearing set for another date. Bottom line is You are paying him to do a job he needs to do it and if he is not meeting your expectations I would let him know it. Let him tell you how he is going to resolve it.

5

I actually want a continuation. I have a court date on 2/23, which is a continuance from my ex’s motion to reduce child support.

I also have an arraignment on 1/30 for criminal charges (ex’s new wife filed charges saying I harassed and threatened her).

My atty sent me an e-mail late yesterday with attachments. It was copy of the Discovery Request - Documents, Discovery Request - Interrogatories and then a letter to my ex’s atty.

The letter first asked what his client wanted and suggested we might could come to an agreement outside of court. It then went on to state that he had been elected to the House and would not be available on the hearing date. He stated that I also wished to continue because I have a to travel to NC for a hearing on the 23rd for CSE due to his client’s motion to reduce child support and because I have an arraignment on the 30th.

How does this work? If both attys agree to a continuance, will the judge just grant it?

If his atty does not want a continuance, can my atty still request one? What happens if he has not responded to the Discovery by the hearing date?

How likely is a judge to grant the continuance?

6

So what happens is this, the attorney usually writes to the opposing party and ask if they are ok with the continuance (like your lawyer did). If they are ok with it, your attorney will file a form called a motion for continuance with Family Court in your county stating that both parties agree. The judge will review and sign it and the Family Court office will give you a new court date.

If the opposing party should not agree, your lawyer can still file for a continuance it will just be up to the judge to grant it or not.

Keep in mind that your lawyer must file for a continuance at least 5 days prior to the court date per the requirements of NC civil procedure (it may actually be 10 can’t remember).

But it sounds like your lawyer is on that so that is good!

Good luck to you I know it is all very confusing and frustrating! Keep your head up!

7

Thanks so much for the reply. I am getting really nervous about all of this. It helps just to know how things work.

8

Your attorney should have attended calendar call for the February term in order to have some input as to when the case would be heard.
As for the discovery, it should have been served prior to January 20. There is a 30 day time limit to respond to discovery requests, however 30 day extension are freely granted. The outstanding discovery is a factor that could entice a judge to allow a continuance.
If your attorney is not available on the date of the hearing, and you do not feel comfortable with one of his associates you should petition the court for a continuance to allow you time to consult with another attorney who has the time necessary to devote to your case.
Normally if both attorneys consent to have a matter continued it will be granted, however some judges will refuse to continue a matter if it has been continued in the past.

9

You are right that my attorney should have attended calendar call, but neither he or I received a notice regarding the date/time of calendar call.

I only found out about it becasue I kept calling the court to find out if anything had been scheduled.

I received a notice (dated December 2nd) regarding the calendar call last week. When I opened the mail, it had a hand written note at the top “2nd attempt”.

When I look at the Calendar online - my ex’s attorney is listed on the distribution list, but mine is not. I am listed a Pro Se. My attorney’s information is in my court file. He appeared on my behalf for the emergency hearing back in August.

Shouldn’t this also be a factor in a request for continuance?

10

I would certainly say the delay in notice to you and the lack of notice to your attorney will act in your favor regarding your request for a continuance and should be included in your petition for the same.