not served in time

[awnold]

What is the name of your state? california

The deal is, I served her with 30 days to respond and serve me back. She responded in time, the last day she could but there has been no service. So the question is, the summons reads "you have 30 calendar days after this summons and petition are served on you to file a Response at the court and have a copy served on the petitioner."

Now the court accepted her Response, but she did not serve me in time. In fact I dont know when I will be ever served. Thus she cant file a proof of service at the court with the required date (it has already passed). In summary, do I get this case by default? If I take what the law says on the summons litteraly I should. Need someone know knows this answer for sure.

Thanks!!!

 

[CourtClerk]

What is the name of your state? california

The deal is, I served her with 30 days to respond and serve me back. She responded in time, the last day she could but there has been no service. So the question is, the summons reads "you have 30 calendar days after this summons and petition are served on you to file a Response at the court and have a copy served on the petitioner."

Now the court accepted her Response, but she did not serve me in time. In fact I dont know when I will be ever served. Thus she cant file a proof of service at the court with the required date (it has already passed). In summary, do I get this case by default? If I take what the law says on the summons litteraly I should. Need someone know knows this answer for sure.

Thanks!!!

A lot of times, the court will allow her to put a copy of the answer in the file at the court and mail you (by regular mail) a copy of her answer. As long as you didn't file for default, the court can accept her answer up until the point where you filed for default. Have you gone to the court and pulled a copy of the POS? What does it say? You filing for default doesn't give you an automatic win, btw. She could have always done a motion to set aside and would have had 6 months to do so.

 

[fairisfair]

what the he11 anyway, you know it is filed. go GET a coy of it.

Oh, but that wouldn't exactly serve (pun intended) your purpose now would it.

She has 30 days to answer and is then required to serve you,
not 30 days to answer and get you served

 

[awnold]

I filed for default on the 30th. I just got the request back from the court saying she filed a response on the 22nd. I have gotten no POS in the mail. Would the court take a response without a POS to go with it? There is no possible way she had a POS when she filed the response at the court.

 

[fairisfair]

I filed for default on the 30th. I just got the request back from the court saying she filed a response on the 22nd. I have gotten no POS in the mail. Would the court take a response without a POS to go with it? There is no possible way she had a POS when she filed the response at the court.

what part don't you get????. she has to FILE the papers BEFORE she can serve you. She must serve you with a Certified copy filed with the court. She couldn't possibly serve you first. She might have to sign an affidavit of service saying that she will serve you. and as court clerk pointed out, she could do that by mail, as long as she can show that the items were mailed, not receiving them is YOUR problem

 

[awnold]

Ok, very true. So she has no time limit on serving me then? I am confused. Is court clerk saying that, yes she needs to give me a POS within the 30 days and she could have done so via mail? What if there was not a POS within 30 days? Fairisfair seems to be saying the 30 day limit is only for the response and a POS can be served at any time after the 30 day limit. Please help me clarify this.

this whole thing is confusing, I have to wait 30 days from when I served her, not from when I filed the petition. She files a response but does not serve me in time, it seems to me that since I had to wait from the day of service, her response would only be vaild if her POS was mailed before the 30 days expired.

Thanks!!!

 

[fairisfair]

well, since you are in the divorce section, I am assuming you are talking about family court

http://www.scselfservice.org/fam/custvist.htm#forms

she has until 21 days before your hearing to serve you. according to the information on the selfservice website for the state of California. Uh, you might want to spend a little time, you know kind of looking around there.

 

[awnold]

"as long as she can show that the items were mailed, not receiving them is YOUR problem"

Ok lets cut to the chase. I go to to court and there is no POS on file but there is a response. Its after the 30 day limit. Do I get to file my default papers?

Thanks!!!

 

[CourtClerk]

Ok, very true. So she has no time limit on serving me then? I am confused. Is court clerk saying that, yes she needs to give me a POS within the 30 days and she could have done so via mail? What if there was not a POS within 30 days? Fairisfair seems to be saying the 30 day limit is only for the response and a POS can be served at any time after the 30 day limit. Please help me clarify this.

this whole thing is confusing, I have to wait 30 days from when I served her, not from when I filed the petition. She files a response but does not serve me in time, it seems to me that since I had to wait from the day of service, her response would only be vaild if her POS was mailed before the 30 days expired.

Thanks!!!

LEGALLY AND TECHNICALLY, she has 30 days to file a response with a court and get you a copy (serve you with it). Fairisfair is incorrect by saying that she needs to file them before she serves you with it, this is the response, not the initial filing (which has to be filed before it can be served). She can literally type out her response, get someone to mail it to the petitioner, then take the response to the court with the POS the next day, 2 days or 2 weeks later. Odd? Yes. It's been done...lots of times. OP, you entered your request to enter default and it was denied because the court received her response in a timely fashion. Therefore, you will need to go the long route to get whatever it is you're trying to get.

 

[CourtClerk]

"as long as she can show that the items were mailed, not receiving them is YOUR problem"

Ok lets cut to the chase. I go to to court and there is no POS on file but there is a response. Its after the 30 day limit. Do I get to file my default papers?

Thanks!!!

NO....because you already filed your request to enter default and it was already denied. If you haven't received a copy of the response, go to the court and pull a copy of it.

 

[awnold]

Trying to get physical and legal custody of my son who was abandoned to me 9 months ago. Before that she was taking cocaine while taking care of him, prostitution, everything. I was not expecting her to get a response in and it has kinda taken me by shock. I guess I will have to do this the long and painful way... Thanks for the help CourtClerk

 

[CourtClerk]

Trying to get physical and legal custody of my son who was abandoned to me 9 months ago. Before that she was taking cocaine while taking care of him, prostitution, everything. I was not expecting her to get a response in and it has kinda taken me by shock. I guess I will have to do this the long and painful way... Thanks for the help CourtClerk

You're welcome. Have you scheduled your mediation appointment yet? What county are you in? Mediation must occur prior to your OSC hearing. Also, make sure you take your PACT class whether or not the other party does.

 

[awnold]

Well she is unemployed, lived out of her car for the last 6 months. She got this in because she has many friends who are divorced and very familiar with the system. I think all of them. Yup, what happens when I need to go the 'long way' with someone like this. Does the Judge look at how she goes through this process and take that into consideration? Meaning if I do everything right, can I move this case along even if she is absent or whatnot? again thanks for your help CourtClerk, a real breath of fresh air and relief at least knowing the facts. =) oh I am in Orange County. Lamoreaux Justice Center

 

[CourtClerk]

Well she is unemployed, lived out of her car for the last 6 months. She got this in because she has many friends who are divorced and very familiar with the system. I think all of them. Yup, what happens when I need to go the 'long way' with someone like this. Does the Judge look at how she goes through this process and take that into consideration? Meaning if I do everything right, can I move this case along even if she is absent or whatnot? again thanks for your help CourtClerk, a real breath of fresh air and relief at least knowing the facts. =)

Actually, she got in this because she filed and if she's filing a response, she's obviously not absent in all of this. There is a wealth of free services that both you and her can use to navigate you through this system (the Family Law Facilitator for one). The judge will take into consideration how she goes about the process, but judges tend to sometimes give leeway to someone that goes before the court pro se, because she doesn't know all of the rules of the court, etc. What's important is that everyone has access to the court and everyone has the opportunity to be heard and ultimately what is best for the child is the outcome. Question though: while she is unemployed (not exactly a crime you know) and living out of her car for 6 months...where was your child?

 

[awnold]

Im doing this in pro per as well. My son was with me. She thought her own needs were more important than his and abandoned him to me last September. no being unemployed is not a crime but doing cocaine while taking care of him is (before last Septemer she had him half of the time for a total of six months). He would arrive at my house with dirty diapers, where the poo had been on his bottom so long the bottom was bright red and hurt to remove it. She could not smell at that point (too much cocaine, also found on my bathroom floor). Thanks for your help!!!