Motion to modify Custody/Support defense


#1

I have sole legal and physical custody of my children since 1997 with no visitation with the absent father. There was an Order entered later providing that he pay child support through the Child Enforcement Agency in Raliegh. The Defendant is presently in arrears and has only made two payments since June. DSS is handling the enforcement and the Defendant is no doubt avoiding service in the Show Cause Order.

There is a severe history of domestic violence between the parties, a 50B was issued in 96 he violated it in 97 and has been incarcerated for such and charged criminally. The remainder of the Defendant record that includes, Assault on a female, Communicating threats, 4 DWI’s, 3 DWLR, 2 Open Container charges, and felonies for Conspiracy to commit insurance fraud, and possession of stolen property. Thus in my opinion is not a “fit and proper person” to have physical and legal custody of a 15 yr old who is exhibiting bad behaviour by drinking alcohol.

Until I filed a pro se Contempt Motion and Motion for Emergency Pick Up of the Minor child from the Defendant’s residence there have been no other actions filed in this matter other than the multitude of Show Cause Orders, one of which is still outstanding. I have initiated another action against the minor child to be adjucated as a delinquent minor for running away from home and being disobediant (alcohol related). I have not been able to communicate with the minor child since he showed up at the Defendant’s door and no doubt has been encouraged not to come home. The disposition of that case has yet to be rendered.

I recieved a copy of a Motion to Modify Custody and Support on November 8th via regular mail. The postmark on the envelope was conveniently skewed (thanks to postage meters) and no legible date, but the only contents (no cover letter, no calender notice, nor Notice of hearing) were the verified Motion (dated and notorized on October 29) and Certificate of Service (dated October 29) but it was marked with the Courts file stamp indicating it was filed on November 3rd at 4:52 pm! Clearly indicating it wasn’t mailed on October 29th and even I know that the last pick up for the drop box at the Post Office is 4:45pm on weekdays. Sound ethical?

Not to mention the attorney he used counseled me in my first divorce (prior to my marriage to the Defendant) but had an associate in the firm actually submit my complaint and motion for summary judgement. His attorney was also a somewhat close family aquaintence during our marriage. Isn’t that considered a conflict?

I was surprised to have the matter on the docket set for the same date as my Contempt hearing (three days after I recieved the Motion) on November 10th. I orally objected to his attorney’s representation stating a conflict and the Judge recessed the matter while he called the Bar and was unable to get a timely response. I moved that all matters it be continued until the Conflict was resolved and the new Court date is set for Dec 2nd.

I have no disposible resources to retain legal counsel as everything that I owe is delinquent because he is delinquent in his child support obligation (in excess of normal costs to litigate a custody matter). I intend to battle this pro se for two months until tax return next year. Can I file for an Extension of Time to Reply to this Motion and when would it be best to file it? Can it be issued for 30 days? Will I have to file a Motion to Continue for November 2nd because one of my main witnesses will not be available on that date because she is a witness to an unrelated matter in another county on that date?

And how do I file a grievance against this attorney for his unorthodoxed representation?


#2

The attorney’s prior representation of you could be a conflict if he were privy to any information relating to the present case. His being an acquaintance is not a conflict.
No extension of time will be granted to respond to the motion, and you may still file a written response up to the date of hearing.
You may attempt to have the matter continued due to witness unavailability.
As for your issues with the attorney, you will need to contact the State Bar.