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  • How long to Appeal Default Judgment

    We are in CA

    I filed for divorce 11/13 and had my then husband served by a reputable personal service. He told me he would fight my request to move to Southern California with our son, then later he said he couldn't be bothered. He got a default notice, then some revised financial papers. No response. Finally my default judgement was signed last week and we are divorced as of yesterday.

    I don't know for sure whether I really want to move but I have no family support up here and my ex is not a very involved father plus he's often out of town and mean to him as well. So I kind of want to look into moving. There is a position open close to my family. My worry is that I'll get a new job and start planning to move and then he'll get mad and go back to get the default set aside. I've read some places he has 30 days, others 90 and 6 months. Anyone know?

  • #2
    Re: How long to Appeal Default Judgment

    Originally posted by Jadefox7 View Post
    We are in CA

    I filed for divorce 11/13 and had my then husband served by a reputable personal service. He told me he would fight my request to move to Southern California with our son, then later he said he couldn't be bothered. He got a default notice, then some revised financial papers. No response. Finally my default judgement was signed last week and we are divorced as of yesterday.

    I don't know for sure whether I really want to move but I have no family support up here and my ex is not a very involved father plus he's often out of town and mean to him as well. So I kind of want to look into moving. There is a position open close to my family. My worry is that I'll get a new job and start planning to move and then he'll get mad and go back to get the default set aside. I've read some places he has 30 days, others 90 and 6 months. Anyone know?
    First of all, in your divorce papers you must have requested custody with you. Did you? And proposed a visitation plan for the father. Did you? Both of these are very important when there are children of the marriage. How about support? Did you make a request for support?

    Unless you have taken care of all of these items in your default decree, the issue of custody is still open and both have equal rights to the child. Which means you may not just take off with the children and relocate.

    If default was issued without these items taken care of then you need to file a motion for; custody, visitation, support and for permission to leave the state, to relocate listing all the reasons such a move will benefit you and the children.

    So it is important to know exactly what issues were defaulted out. Can you supplement your post after reviewing your petition and the decree?

    .

    Comment


    • #3
      Re: How long to Appeal Default Judgment

      I wish to inform you that you can have a motion to set aside default judgment. In this regard mistake, inadvertence, surprise, or excusable neglect may be made as grounds for motion to set aside default judgment. Under provisions of California Code of Civil Procedure section 473(2)(b) relief may be sought from court. Generally action to set aside default must be taken immediately but not exceeding 6 months.

      AFF

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      • #4
        Re: How long to Appeal Default Judgment

        Originally posted by AFFA View Post
        I wish to inform you that you can have a motion to set aside default judgment. In this regard mistake, inadvertence, surprise, or excusable neglect may be made as grounds for motion to set aside default judgment. Under provisions of California Code of Civil Procedure section 473(2)(b) relief may be sought from court. Generally action to set aside default must be taken immediately but not exceeding 6 months.

        AFF
        If the default was for the marriage solely, she does not want the default set aside. The issues here are custodial rights and relocation. When one moves for default, as she had to do, it is really uphill to have it set aside. She needs permission to move out of state with the child -- not to have the decree of dissolution set aside.

        Comment


        • #5
          Hi,
          My petition was complete. I asked for physical custody with him having visitation every other weekend and alternating thanksgiving and Xmas. I included that I had the right to relocate to SoCal. I also asked for child support based on 80/20 custody (though he spends less time with him then that). That's why he initially said he'd fight because of the relocation clause but then he didn't. The judgement matched the petition and was approved by the judge.

          We are in Nocal (plus he works from home when not traveling) so he could still see him EOW even if we moved so I wouldn't have to change the custody agreement

          Thanks

          Comment


          • #6
            Re: How long to Appeal Default Judgment

            Originally posted by Jadefox7 View Post
            Hi,
            My petition was complete. I asked for physical custody with him having visitation every other weekend and alternating thanksgiving and Xmas. I included that I had the right to relocate to SoCal. I also asked for child support based on 80/20 custody (though he spends less time with him then that). That's why he initially said he'd fight because of the relocation clause but then he didn't. The judgement matched the petition and was approved by the judge.

            We are in Nocal (plus he works from home when not traveling) so he could still see him EOW even if we moved so I wouldn't have to change the custody agreement

            Thanks
            The additional information is great! That clarifies. Even though the petition asked for rights to relocate to Southern Cal, since the court retains jurisdiction over the child the court needs to be notified of the relocation. . My recommendation is that you have a family law attorney review it for a definitive answer. But with his having visitation rights the decree will have to be modified for your moving out of state makes regular visitation as granted in the order impractical. Further, you may be required to pay travel costs for him to exercise visitation. My recommendation is that you have a family law attorney review the decree for a definitive answer. My best guess is that a motion to modify will be required if for no other reason than to modify the visitation arrangements.

            Once you arrive in your city, you need to file a certified copy of the decree with the superior court of the county in which you reside -- in their UCCJEA registry which every superior court maintains. That is official record the child is now in California so if any issues arise such as modification of support, visitation, etc., the court will have a record the child is there and can request to assume jurisdiction from the original issuing court.

            Comment


            • #7
              Re: How long to Appeal Default Judgment

              Oh and the reason I put for relocation was to be near family support. It is just me and the nanny up here while my ex is traveling and womanizing

              Comment


              • #8
                Re: How long to Appeal Default Judgment

                Originally posted by Jadefox7 View Post
                Oh and the reason I put for relocation was to be near family support. It is just me and the nanny up here while my ex is traveling and womanizing

                Pick and go whenever you want. You don't need to wait to see if he sets it aside. It's a valid judgment right now, and you can do what you want.

                Comment


                • #9
                  Originally posted by SupportAttyGuy View Post
                  Pick and go whenever you want. You don't need to wait to see if he sets it aside. It's a valid judgment right now, and you can do what you want.
                  Thanks. If he challenges it later might a judge force me to move back or surrender custody?

                  Comment


                  • #10
                    Re: How long to Appeal Default Judgment

                    Originally posted by Jadefox7 View Post
                    Thanks. If he challenges it later might a judge force me to move back or surrender custody?
                    A judge might try and order you to do anything, but in your case I doubt very much they would. If you're gone, they'd likely treat it as a foregone conclusion. Just the same, if you're able, it would be money well spent for an hour to consult a lawyer in your area.

                    Comment


                    • #11
                      Re: How long to Appeal Default Judgment

                      Originally posted by Jadefox7 View Post
                      Thanks. If he challenges it later might a judge force me to move back or surrender custody?
                      You need to notify the court that you will be moving since they made the original custody decree and if you review the order it should read that the court retains jurisdiction over the child until the age of majority. With that language you need to notify the court that you are completing the provisions in the decree. That will keep you out of trouble later on if there is a visitation order as part of the decree.

                      With a visitation provision in the decree your moving out of state makes that impossible so you need to have it revised.

                      I recommend you take the safe route instead of chancing a parental kidnapping charge later on. If your move makes visitation/access to the child impractical, then you need to recognize that and have the decree modified accordingly. Even if the court and other party acceded to the relocation, suspending visitation completely I doubt was ever anticipated.

                      Comment

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