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Does a judge have discretion to dismiss a case for failure to litigate or respond to any moving papers?

Silver Lake, Los Angeles, CA |

Ex is asking for full custody of kids (I have had full custody for the past 10 years). I filed an emergency order and his counsel filed the opposition the day before. It was stricken and orders were granted. Now we have another order hearing and counsel has failed to timely file or serve the opposition (5 days late now). His counsel's firm advised me they wish to file a stipulation instead agreeing to my request in the order. It seems clear no opposition has, once again, been filed. I declined to take hearing off calendar. In the meantime, ex has been put on restricted visitation, ordered into an evaluation, and now after our last mediation, I was told that mediator would recommend no overnights at this hearing. Can a judge dismiss the party's case? Possibly failure to litigate?

In addition, as much as I would like to get an iron-clad parenting plan and walk away from this, I still think the evaluation should still go forward. Kids are in therapy. One child diagnosed with chronic depression and both showing symptoms of PTSD per therapist. I don't want to go to trial, but still hoping to find out what has happened to the kids.

Attorney Answers 3

Posted

Ordinarily, civil actions are subject to mandatory dismissal if not brought to trial within 5 years after the action has been filed. However, this rarely occurs in family law cases. No dissolution or legal separation proceeding may be dismissed for delay in prosecution during the period that a child support or spousal support order remains in effect..

Your facts are a little unclear. It sounds like your case actually went to judgment and you were awarded custody and that 10 years later your ex is seeking to change the custody orders. In that case, there is no "case" to dismiss. If a motion has been filed and it is unopposed, the motion may be granted as unopposed. However, court's have discretion to make a determination of the merits of a case/motion in the absence of any opposition and can decide to deny the motion if it has no merit or is inadequately supported. It's unclear who's case you are referring to when you ask whether the judge can dismiss "the party's case"?

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Posted

We do have a case and we have a TSC on calendar. I meant ex's request for a full custody trial when I said "the party's case." Sorry. But I do understand what you are saying in terms of a judge not dismissing a family law case and thought that might be the case.

Posted

The Court retains jurisdiction over this matter until the children reach the age of majority so the judge will not dismiss the case for failure to litigate or otherwise. Your ex has the legal right to file a Request in court to modify the custodial agreement and the judge will have the authority to entertain the Request and determine if there has been a significant change in circumstances warranting the modification.

If a Child Custody Evaluation has been ordered in this case, then you need to have legal representation to assist you. If your ex has counsel, so should you. If there is a disparity in incomes such that you are put at a disadvantage, then you may be able to him to pay a contribution towards your attorney's fees.

It does seem like you have valid points regarding the lack of timely pleadings. However, you need to be able to argue that point to the court--which is far more effective when counsel is presenting the argument as opposed to a self-represented litigant. If opposing counsel is continuously filing late pleadings and such without justification, then he/she is not very good at his/her job, so you will have an even better chance if you hire competent counsel.

With regard to your comment that the "mediator would recommend no overnights"--this is strange because mediators do not make recommendations in Los Angeles County. If you are in a reporting county, then yes, mediators do make recommendations (which I think is ridiculous because they neither have the skills nor time to make sensible recommendations without getting to know the family dynamics, etc.--but that is another point altogether :)).

You really need to have someone advocating for you, and I strongly suggest that you consult with an experienced family law attorney sooner rather than later. It seems to me based on the facts of your case that you will eventually need an attorney, and retaining one now will help you avoid critical mistakes that you may not even know you may be making.

If your children are 14 years or older, there is a statute that enables them to address the court and tell the judge what they want. There are so many possible outcomes here, and I suggest that you consult with an attorney so you can obtain the best result possible. In the meantime, I am including links below which may be of some help. Good luck to you.

If you found this answer helpful, let me know by clicking the "Mark as Helpful" button or "Best Answer" at the bottom of this answer. By answering this question, the Law Offices of Cathleen E. Norton does not intend to form an attorney-client relationship with the asking party. The answers posted on this website should not be construed as legal advice. The Law Offices of Cathleen E. Norton does not make any representations about your family law matter, but rather, seeks to provide general information to the public about family-law related matters. You should consult with an attorney to discuss the specific facts of your case. Thank you.

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We are venued in Stanley Mosk and I am positive they can make recommendations. I really appreciate your feedback and will check out the links you provided. Thanks!

Posted

I agree with the other attorneys

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

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