Custody / divorce by default

[camom]

W--------------------------------------------------------------------------------
I previously posted and have been trying to add to the thread by have been unsuccesful. Sorry to start a new thread but all relavant info is included here. Special thanks to Ohiogal!

Just trying to make sure I do everything right the first time! I have 3 questions!

I filed for divorce, full legal and physical custody at the same time. STBX was served in person. He did not file in the required 30 days. I then filed default paperwork and again he has not yet responded in the 25 days that he was notified of the default request by mail.

I was expecting to get a hearing date by now so I called my attorneys office. I was told that the courts are backed up and that a hearing would be another 2-3 months. My lawyer then said that I could submit my depostion or declaration (i believe that is the term) in writing to the court and it could be approved that way. It will still take 2-3 months but it's another alternative and could end up being settled sooner.

I would love to aviod a hearing. I'm really just beyond stressed and scared to my wits end. I may cry or shake uncontrollably but I want to make sure that this is a stand up option as well. Can not having a hearing and doing it this way make it easier for him to contest custody/visitation at a later date?

I've just never heard of not having a hearing or seeing a judge about something as serious as custody. Is this available only because I'm requesting a judgement by default?

Quite a few people who post seem to have stipulations in thier custody or visitation request/order that seem very specfic. I'm asking for reasonable vistiation. Should I also have included from the beginning (might have to wait to modify later as these were not asked for in my original paperwork) specific requests such as no overnights (son is under 1 year old) ? If I should have and was'nt put up to speed I'll have to keep paying after the order is issued for a modification - and I'm running out of money fast here.

Any replies and opinions are welcome! Postive, negative I just need to know!
Thanks in advance!
State of Californiahat is the name of your state?

 

[Ohiogal]

You should always be specific about what it is your want (no overnights). The court is not a mind reader. Because you did not request that, if you request it now, that is a modification of your original pleading which gives him more time to respond. As for "modifying it later" that is NOT as easy at it sounds. YOu would have to show that there was a change in circumstances and that it is in the best interest of the child to modify the decree. You may not be able to do that.
As for custody decided by default -- not usually. You have to prove that he was served. He has a right to contest it. 2 to 3 months is nothing. CA is a wierd state however and maybe there it is possible that they would settle such a thing without a hearing as a default. But usually a hearing is required to give the other party a chance to show up. And yes if there is no hearing, then he can contest it easier based on the fact that he did not get his day in court. As for why it is available -- I dont know. Even in dissolutions a hearing is normally required just to confirm that the parties have agreed willingly and voluntarily to everything the paperwork.

 

[camom]

Thanks for the input. Because of circumstances at the time I got into an extreme panic and literally just got the first attorney that answered the phone. I did'nt even know any of the legal options available to me reguarding vistation.

I dont think I will have a problem proving he was served as an outside service personally served him. For now, I will just file my written declaration and wait for the order to be sent back to me. Should I also have him personally served with the order when I recieve it?

 

[Ohiogal]

I dont see you getting the signed order back. I see this going to hearing. You can attempt that but it won't change the fact that I really think you are not getting around a hearing by filing for a default judgment -- does your attorney know ANYTHING about family law?