Trial - can attorney request something not on calendar?

[calidad]

California -

In September 2008 I filed an OSC for modification of visitation and child support. I also filed for “Other Orders” in which I am requesting daycare to cease for my 12 ½ year old daughter. In October 2008 my ex and I agreed to do a 3111 Evaluation.

During the evaluation in December, my ex wrote a letter to the evaluator in which she requested sole legal custody and to reduce my parenting time. The Evaluator’s report recommended no change in parenting time and stated that it’s the court’s responsibility to address childcare issues. We went to court a few weeks ago, and I requested to adopt the Evaluator’s report (although my parenting time did not increase) and to continue with my request for daycare to cease for my eldest daughter. My ex’s attorney disagreed with the Evaluation and requested the motion to go to trial. They did not file a response to my OSC.

We have a trial date set in March. My question is, since my OSC included modification of visitation, child support, and daycare issues only, can my ex’s attorney request modification of Custody at this upcoming trial? Or since it is not on the calendar, would they have to file a separate motion?

Thanks for your help!

 

[seniorjudge]

Q: My question is, since my OSC included modification of visitation, child support, and daycare issues only, can my ex’s attorney request modification of Custody at this upcoming trial? Or since it is not on the calendar, would they have to file a separate motion?

A: Your attorney can ask for anything. Whether you will get it is something I don't know.

 

[Ronin]

You should have plenty of time to review your own states rules of civil procedures for civil trials to answer your question.

Generally speaking, a new issue cannot be raised for the first time in a hearing or trial without fair notice given beforehand. The point of this is that one cannot 'surprise' the other party with a new issue they have not had an opportunity to properly respond to. It's a due process thing... But in many cases notice can be served in as little as two days. Even without notice, the court may consider the issue if it is not promptly objected to.

Anyway, there is still plenty of time between now and trial. You can expect pre-trial motions to be heading your way raising any additional issues to be addressed at trial. It's a long shot that an attorney will drop the ball on something like this, but I have seen it happen.

 

[thedoctorisin]

Anyway, there is still plenty of time between now and trial. You can expect pre-trial motions to be heading your way raising any additional issues to be addressed at trial.

At which point your attorney could object to the addition of these additional issues at the already-scheduled trial date. How the judge would rule on such an objection is another matter.

 

[Bloopy]

Is your daugter still going to daycare after school?

Are you paying for it in full or is it 50/50ish?

It seems reasonable to me for a 12-year-old to be home alone. However, I know plenty of 12-year-olds not mature enough for that and I don't know Mom's area.

If Mom has a part in paying for daycare and argues the child needs it, I can't see a court demanding she be home alone.