Violation of Due Process

[debifermin]

What is the name of your state? Alabama

Is it unconstitutional for a judge to rule on a Motion to Suspend Vistation in 72 hours without a response from the other party? (Alabama)

What is the timeline to respond to motion?

 

[>Charlotte<]

Okay, I am really winging this, so make sure you check back for other (better informed) responses, but just to get you started: I believe it depends on the nature of the proceeding. What you've described sounds like an "ex parte" decision, which can be made in the absence of either party. But I also think that the requirements of due process render ex parte decisions temporary in nature.

Again--I'm liable to be corrected, so stay tuned.

 

[CourtClerk]

Ex Parte decisions are generally temporary. After the ruling, the judge will set the case for hearing regarding the underlying issue and once that is dealt with, a more permanent order is made.

 

[debifermin]

Additional Info

OK, Here are more facts, to maybe help with an answer.

My husband took a hair folicle drug test (as an agreement not a court order). It came back positive, but he has prescriptions. As soon as his X's atty got the results, she file a motion to suspend vistation until the court hearing...which who knows when that will be. before his attorney could answer this motion and provide the stuff from the doctor, the judge granted the motion (which was only 48 hours later). It seems to me that this is a violation of his rights, am I wrong?

 

[las365]

I think you are wrong. It sounds like it was an "emergency" ex-parte (without the parties) motion. As described above, there will be a hearing later, usually within a certain number of days (how many days depends on the rules of procedure in the court the case is in).

 

[debifermin]

Motion was NOT EMERGENCY

This was not an emergency motion. The title of the motion was "MOTION TO SUSPEND VISITATION". No where in the motion was their any mention of an emergency or Ex Parte. The request of the other party in the body of the motion was to suspend until the hearing. The judge granted the motion 48 hours after it was filed, my husband's attorney did not answer it yet, and there is no immediate order for hearing. The order states that My husband is to attend drug and alcohol counseling. Like I said, he had no chance to respond to this, and he is not a drug addict. He has prescriptions for painkillers.

 

[las365]

The request of the other party in the body of the motion was to suspend until the hearing.

There ya go.

 

[debifermin]

I understand that part, what my concern was is that it was a violation of due process, because he did not have a chance to defend himself before the motion was ruled upon. It can take months to even get a hearing, and that is a long time to go without seeing ones kids!

 

[CourtClerk]

Let's answer this just one more time.

There was no violation of due process. This was a temporary order. There will be a hearing. I don't know where in Alabama you are, but I'm dead in the middle of LA County and even with us and with all of our volume (which I'm going out on a limb to guess is much larger than any court in Alabama) is doesn't take months to get a hearing date on a motion.

Your husband needs to consult his attorney, or file his own motion to have his visits restored.

 

[debifermin]

Thank you all for your responses.

 

[debifermin]

Lee county (FYI) it took a year 1/2 to get a hearing, which then went to mediation (in Feb), and there is still no hearing scheduled. It does take months, at least with this judge....Thanks again for the responses!

 

[>Charlotte<]

Not that it will make you feel any better, but if it helps to make it more understandable: when the issue is a failed drug test on the part of a parent with visitation, it can be construed that visitation needs to be suspended until the issue can be properly dealt with.

 

[debifermin]

Nope, doesn't make me feel better, but thanks!

 

[TheGeekess]

Lee county (FYI) it took a year 1/2 to get a hearing, which then went to mediation (in Feb), and there is still no hearing scheduled. It does take months, at least with this judge....Thanks again for the responses!

Lee County may be sharing a district court judge with some of the other counties around, or they may have a really heavy case load. I know that Blount & St. Clair (until recently) shared a district court judge. It's not a sprint, but a marathon, as someone else posted on this forum.

 

[Ohiogal]

This was not an emergency motion. The title of the motion was "MOTION TO SUSPEND VISITATION". No where in the motion was their any mention of an emergency or Ex Parte. The request of the other party in the body of the motion was to suspend until the hearing. The judge granted the motion 48 hours after it was filed, my husband's attorney did not answer it yet, and there is no immediate order for hearing. The order states that My husband is to attend drug and alcohol counseling. Like I said, he had no chance to respond to this, and he is not a drug addict. He has prescriptions for painkillers.

The judge can do that. Your husband still has a chance to respond and prove that it was LEGALLY prescribed prescriptions that did this. How long has he been on painkillers?