Motion to Modify Custody / Motion to Modify Child Support


#1

A friend of mine was “served” today (private person - license plate read Beenserved (sp) with a Motion to Modify several things in their existing 2006 custody case. Red flags are already waving for me as (1) the motions were NOT file stamped and (2) there was NO hearing date on the motion. My gut says that this was a stupid mind game move and that he will be properly served within the next several days so he isn’t just disregarding this activity today.

My question is…how does one respond to a Motion? I know that Complaints get Answers and often Counter-claims but am unclear on a Motion. Secondly, the other party to this action has included blatant incorrect facts as a basis for her motion. Is there an appropriate response or does my friend need to just proceed with gathering all of his evidence & witnesses in support of his side and be prepared for a hearing date in the next several months? (The calender for Guilford County is already out through mid-September).


#2

I would not be so certain that service was improper. The rules of civil procedure do not contain a requirement that the motion that a motion that is served by file-stamped. Pursuant to Rule 5, the motion could have been served by mailing a copy to the party’s last known address. Also, there is no requirement that a motion be immediately set for hearing either.

As for responding to the motion child custody, a response is not necessary. It is not the same as answering a complaint where the plaintiff could obtain a default judgment against the defendant if it is not answered timely. Whether a response is warranted will usually depend on the facts of the case, but I usually do not file a response to motions as that alerts the opposing side as to your objections and defenses and provides them with time to prepare appropriate responses for trial.