My husband is suing the mother of his child for sole custody of his son. Short background story; they were never married and there is no legal custody agreement in place, only a child support order. Right now his son resides with his mother but we feel it's best he lives with us due to neglect and abuse. She has only a few more days to respond and so far the courts says she hasn't. If she doesn't respond, what are the next steps? What should we expect?
We also have a court day exactly one week after the last day she's suppose to respond. If she doesn't respond, what should we expect to happen on that day?
If you filed the Petition nothing will happen unless you make it happen. Therefore, if it is your lawsuit you have to obtain what is known as a default judgment and order of custody and pick up the child.
if the action was filed by the state or someone other than you the answer is to ask them what they are going to do, what paperwork you need and the like.
The reality is that custody and support are dealt with on a state by state basis so the rules may vary in different states. You should hire your own lawyer and let them protect you and get the necessary paperwork you will need to get the child. Hire the lawyer as soon as you can.
If she doesn't Answer within the time provided in the Summons, you can file a default. (This is all assuming you served her correctly and can provide proof of service on a particular date.) You first file the Default Certificate. After that, you will need to file other documents to effectuate the default and finalize the case. You will need to provide pay and tax information for you husband, and you should do the same for her, but since she will default, you will need to provide affidavits regarding what you believe she makes. This is all to correctly establish child support. If you do not provide this information correctly, the Court will reject your finalization documents and will not finalize your husband's case. Honestly, you should hire an attorney to help finalize your case.
If she does default and you file the default certificate, then you should call and cancel the hearing because there is no longer a need for it given the default. Call the commissioner's clerk to cancel the hearing.
The information you obtain at this site is not, nor is it intended to be, legal advice. Likewise, the information contained in this answer is not, nor is it intended to be, legal advice. This answer is not a solicitation. This answer does not create an attorney-client relationship. You should consult an attorney for advice regarding your individual situation.
You don't say that you have an attorney. The best thing to do is retain an experience family law attorney who knows what to do because there are many potential traps and pitfalls procedurally.
If the mother fails to answer (assuming she was properly served, which is a question you do not address), then yes, your husband “wins” by default. But, he will have to prepare the appropriate documents (default, findings, and default order) in order to have the court enter any orders granting your husband's petition.
Plus, the mother can always file a motion to set aside the default, and that time runs from the date the order is signed.
As you your hearing, you don't say what it is for, or what orders you hope to obtain. It may be best to appear for the hearing, and see what happens.
But again, you really should find an experienced family law attorney to represent your husband.
This answer is not legal advice, and does not create an attorney - client relationship. This answer is for educational purposes only.
Sign up to receive a 5-part series of useful information and advice about child custody law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline