A Cautionary Tale About Not Responding In A Custody Case

In February, a Blog came to my attention that was written by a mother who had lost primary custody of her child to her ex-domestic partner. This story highlights an important piece of universal advice – do not sit on your rights.

In the Blog, the mother recounted the troubling story of how during their relationship, she allowed her ex to adopt her biological son, but that upon dissolution, her ex petitioned for and was awarded primary custody of the minor child.

separation by Robert Bjurshagen from the Noun Project. Licensed under Creative Commons CC-BY

The author brought up some very serious allegations regarding judicial discrimination against her because she is a lesbian, whereas her ex has been in a heterosexual relationship since the two had separated. The Blog also demonstrated an ugly truth with regard to our legal system – if only one party can afford counsel, they may have an unfair advantage. Here, the author’s ex inherited a sizable sum of money and was thus able to hire a lawyer, while the author could not afford to retain counsel.

Notwithstanding those issues (and without minimizing them, either), what stood out the most to me, as a family law practitioner, was the fact that the author did not lose rightly or wrongly on the merits of the case, but that she lost custody on default.

Generally speaking, a default occurs when a party fails to respond to a Petition or a Request for Order. Setting aside the merits of either side’s position, if you fail to respond or oppose a Request for Order made by the other party, the Court can – and often will – simply rule in favor of the unopposed requesting party.

The obvious lesson is that even if you cannot afford counsel, you must respond in a timely fashion to any Petition or Request for Order, especially if it’s regarding custody of your children. It is unfortunate that the author could not afford counsel prior to her responsive deadline. Most California Courts have Self-Help Centers, where trained staff are available to assist self-represented litigants, and there are several organizations in the Los Angeles area that offer pro bono or sliding fee family law services.

Although it is possible to file a request to set aside a default judgment, there is no guarantee that such a request will be granted by the court. Indeed, it appears that the author’s attempt to set aside the default failed, and she will likely appeal. Generally, to set aside a default, a party would need to show mistake, inadvertence, surprise or excusable neglect. If you cannot make such a showing within the time frame allowed by statue, then the default judgment will stand.

In sum, if you sit on your rights and fail to respond when you are served with court papers, you are putting yourself at risk of losing the ability to even present your case.