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What happens If the respondent is given 14 days to answer to an order and they don't do so by filing the answer with the clerk?

Chicago, IL |

I, the petitioner, filed a petition to enforce visitation that was given in the custody judgment and for modification of custody. If the respondent doesn't respond by filing an answer with the clerk, does the judge allow him to testify or have a trial without a written answer? Can I ask to have my orders granted because the respondent did not respond with an answer in writing by default? Does it make a difference if he shows up or not, if he did not give a written answer within the 14 days? Every time I as for modification or alert the judge that he is not complying with the order, he files an emergency order of protection to keep me from seeing the child. What do I do to notify the judge of these actions that I am being retaliated on for enforcing the orders, and keeping the order?

Attorney Answers 5

  1. do a motion for judgment on the pleadings. without a response, you should win.

    as far as the op cases, ultimately, and i do not know what that means, the clerk and judge in the op court will know him and perhaps deny his emergency ones.

    oh, best if you have a lawyer.

  2. You asked several questions at one time. So I'll attempt to answer them by simply stating this:
    In order for someone to respond to a Petition they will have had to to be properly served and noticed. If you have proof that all of this was done (proof of service/green card if mailed certified) then the Judge will find them in Default. That is generally. But usually, most Judges will give a few times for them to respond before finding them in Default especially if they show up to court.

    Secondly, whether or not your petitions were properly prepared (in align with the statute) will determine whether or not the Judge will enforce what is being requested.

    Lastly, even if he FILES an emergency order of protection he would still have to PROVE the grounds for the request. That may or not be relevant to your petition and whatever proceeding is going on. You can notify the Judge when you go to court. And if it's the same Judge (which it usually is) they can detect that just the same.

    This case sounds like it has a lot going on. I would suggest a consultation with an attorney if necessary (if you have not already).

    Communication with an attorney does not by itself create an attorney/client relationship or constitute provision or receipt of legal advice. Any communication with an attorney should be considered informational use only, and should not be relied upon or acted upon until a formal attorney/client relationship is established via a written agreement.

  3. According to Marriage of Fahy, as long as your ex-husband shows up on the date of the hearing to contest your motions, his failure to file written responses will NOT waive his right to contest the merits of your motions. Rather, the failure only waives his right to file a written response. Therefore, he can certainly go to hearing on your post-divorce motions to modify/enforce without filing a response.

    Furthermore, default is not the same as a default judgment. "Default order precedes a default judgment and additional steps must normally be taken before judgment is actually entered." Default is "interlocutory" [temporary] and not final. More importantly, courts are very liberal in setting aside an order of default. The public policy of Illinois is that the case be resolved on its merits, not on technicalities. In any event, as pointed out, Marriage of Fahy would preclude entry of a default judgment to the extent your husband shows up for hearing to contest your motions. Of course, this is the law. In practice, things work out very differently—I can certainly see many judges losing patience and entering the default judgment.

    On the other hand, Gary raises an intriguing suggestion regarding filing of a Motion for Judgment on Pleadings [section 615(e)]. In Fahy, the trial court held that judgment on the pleadings which was based on an order of default was erroneous. However, to the extent you file such a motion, and your ex has NOT been held in default, it seems that you’d be in a good position to prevail based on your petitions...presuming they are well pled (the court should ignore conclusions of law/fact, argumentative material).

    Judgment on the Pleadings is based on "facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record." Given that your ex-husband will not have submitted a response to your motions, you have an advantage. And that can translate to a legal victory.

    The author provides the preceding information as a service to the public. Author's response, as stated above, should not be considered legal advice. An initial attorney-client conference, based upon review of all relevant facts/documents, will be necessary to provide legal advice upon which the client should then rely.

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