Whyte Noise
Senior Member
What is the name of your state? CA and NM (with CO and AZ thrown in the mix a bit.)
All parties reside in CA. Wife moves with daughter to CO, and husband is in CA. Files for divorce in CA. Shortly thereafter, he moves to AZ.
Parties stipulate to CA having jurisdiction to hear the case as no other state really had jurisdiction. CA court issues order granting mother physical custody.
Years, and many broken orders on the mother's part later, she moves to NM. Father files for custody modification, first in AZ which declines jurisdiction and then in CA, which is the court of jurisdiction. (Father has residency in AZ, mother and child do not have residency in NM).
With me so far?
Mother refuses mediation, refuses to return mediator's calls, etc. Court date for December 2003 is set. Father serves mother summons for the December court date at her current address, service is completed, and Proof of Service recorded in CA court.
December court date comes, mother is a no show. No written response, no appearance, nada. Father intends to ask for Default Judgment, but the CA judge notices that the address on the proof of service is not the same as the address of record. (Address of record was CO, mother now lives in NM). Judge orders father to serve mother by CRRR mail ONLY at address of record (CO) continues until January. Service is attempted, and returned as "address unknown".
Father goes to hearing in January and is granted custody with a Default Judgement issued against the mother.
1.) Was the mother's "due process" denied becuase she wasn't given notice of the "new" January hearing?
2) Whether the answer is yes, or no... could you please give me case law or statutes regarding your answer?
This is for a friend. NM court refused to register the foreign (CA) order even though their laws are clear the state can not deny to register the order. NM judge claimed that the modification order was invalid because mother didn't know about the January hearing. She ruled that the original CA order giving the mother custody is the one that's legal and valid.
The only reason the December hearing was continued until January was so that proper service could be effectuated by sending the notice not only to her known current address (which was done for the December hearing), but also the old address where she no longer lived since that was the address of record (which ws NOT done for the December hearing, because she didn't live in that state any longer).
I know what my reasoning& common sense are telling me is the correct answer, but I'd like to know for sure... if you don't mind helping me out.
All parties reside in CA. Wife moves with daughter to CO, and husband is in CA. Files for divorce in CA. Shortly thereafter, he moves to AZ.
Parties stipulate to CA having jurisdiction to hear the case as no other state really had jurisdiction. CA court issues order granting mother physical custody.
Years, and many broken orders on the mother's part later, she moves to NM. Father files for custody modification, first in AZ which declines jurisdiction and then in CA, which is the court of jurisdiction. (Father has residency in AZ, mother and child do not have residency in NM).
With me so far?
Mother refuses mediation, refuses to return mediator's calls, etc. Court date for December 2003 is set. Father serves mother summons for the December court date at her current address, service is completed, and Proof of Service recorded in CA court.
December court date comes, mother is a no show. No written response, no appearance, nada. Father intends to ask for Default Judgment, but the CA judge notices that the address on the proof of service is not the same as the address of record. (Address of record was CO, mother now lives in NM). Judge orders father to serve mother by CRRR mail ONLY at address of record (CO) continues until January. Service is attempted, and returned as "address unknown".
Father goes to hearing in January and is granted custody with a Default Judgement issued against the mother.
1.) Was the mother's "due process" denied becuase she wasn't given notice of the "new" January hearing?
2) Whether the answer is yes, or no... could you please give me case law or statutes regarding your answer?
This is for a friend. NM court refused to register the foreign (CA) order even though their laws are clear the state can not deny to register the order. NM judge claimed that the modification order was invalid because mother didn't know about the January hearing. She ruled that the original CA order giving the mother custody is the one that's legal and valid.
The only reason the December hearing was continued until January was so that proper service could be effectuated by sending the notice not only to her known current address (which was done for the December hearing), but also the old address where she no longer lived since that was the address of record (which ws NOT done for the December hearing, because she didn't live in that state any longer).
I know what my reasoning& common sense are telling me is the correct answer, but I'd like to know for sure... if you don't mind helping me out.