Can an Attorney Represent a Client in a Custody Case Without the Client Present

[Concerned Parent9]

My question involves a child custody case from the State of: CALIFORNIA

In a case where the parents have never been married, can an attorney show up in place of their client to represent them in court on the child custody case because their client has to "work?"

[aaron]

It will depend upon the nature and purpose of the court hearing.

[Concerned Parent9]

Basically, there is a lot of drama. A few years ago, the ex filed a case for Child Custody just to get my goat. It made us talk and she no longer wanted to pursue the case within the court. So I did not reply to the case nor did she pursue it. There were never any orders issued. In 2010, we made an agreement that I will take custody of my son for the next year and see how it goes. Over the course of the year (it's been about 7 months now) she has made numerous threats to "take" my child away from me or take me to court to do so. The final straw was when we were trying to work out a schedule for a visitation that she requested (she wrote her own visitation out with him and it's a week every couple of months), my son was in school for the week (he's 4) and he wouldn't have a spring break until the following month. She refused to compromise and even when I told her it was possible that he would lose his spot in the class room and get dropped, she told me that was "too bad" and to figure something out. She then told me it was a priveledge to have my son that I failed to realize and that I'm so lucky she is such an accomodating mother to allow me to have my child. She said if I didn't like it, I could take her to court and she'd like to see me TRY. So March 8, I filed the contract she wrote up regarding custody and I filed it in the county that I currently live in with my child and where he now goes to school. She was served when she picked him up for her visitation... and two days after she was served, she ran to the court house where she lives (and I used to live) and requested a default judgment in her nearly 3 year old case. She indicated on the request that "nothing has changed since the previous filing." which every thing has, including the fact that the child no longer lives there or lives with her. Based on her misrepresentation, the clerk granted the request for the judgment. She returned my son to my custody at the end of her visitation like nothing had happened. A day after he was returned, I received the orders that she has sole physical and legal custody of him.

I filed with the courts in the county where she obtained the judgment and I requested an ex parte hearing to review my motion to set aside her judgment and dismiss the case since she obtained the judgment by lying to the court. My son doesn't live there and she did not inform the court of the fact that she was served in Fresno regarding Custody of the child that she no longer has in her care. I am told ex parte's are hard to come by and it's even harder to get a judge to entertain a motion to dismiss. The judge put my case on the calendar in his county for April 13, since I have a court date in my county on April 18. On April 13, I made the grueling 4.5 hour trip and literally, while standing in the halls of the courthouse, she asked an attorney to come inside and represent her. The attorney went in with her and asked for a continuance in the case and the judge said he had no choice but to grant it. So now i have to travel back THERE in 3 weeks to stand before a judge to decide whether or not the case should be dismissed and my county should have jurisdiction. I cannot afford an attorney and I am pretty positive the case would've been thrown out had she not had an attorney to stall the case for her. So now, she still has this default for the next 3 weeks until the case is heard. Her attorney mentioned in court that he would be filing a continuance in my county as well as filing a motion to dismiss my case.

I am beyond frustrated because the child is still in my custody. It's driving me nuts. I dont think she should be able to lie and get away with it just because she can get an attorney. Any advice would be great.

[NdK1009]

I'm a little confused here. It may not really matter, but if the Apr 13 hearing was an ex parte hearing, why was your ex there?

Ex Parte(ex par-tay, but popularly, ex party) adj. Latin meaning "for one party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a diligent attempt to contact the other party's lawyer of the time and place of any ex parte hearing.

[Mr. Knowitall]

It would appear from the narrative that the judge declined the request for an ex parte hearing.

[Concerned Parent9]

Ok based on what has happened, I was originally given a court date of April 18. She ran and requested a default to avoid me getting a day in court in my county, which is wrong... so when I notified the courts in her county of what has happened AND that I have a court date (today) they made sure that I filed a request for an ex parte hearing to speed up the hearing date so that it would be before my court date today, which ended up being the 13th.

The judge didn't deny the ex parte, otherwise he would not have put it on his calendar. You file the paper work and you have two days to return to the court house (or call) and find out whether or not they have scheduled you. If they haven't, they just don't put a date and time on it, they only stamp that it was filed and give it back to you to serve to the other party that the attempt was made in their case. So by the judge putting the case on his calendar, the ex parte hearing was granted.

Literally, standing in the hallway of the court house on April 13, she was either approached or she approached him, and asked an attorney to come into the court room to represent her. When we got in there, the attorney identified that he had "just been retained" and asked for a continuance on the grounds that he needed to "learn the case" because he knew nothing about it. The judge said he had no choice but to grant the attorney's request and he would hear the case in another 3 weeks. When all that is to be heard is a motion to dismiss.

So now I am back in my county and I have a court appearance today and I'm wondering, if she can send her attorney in her place and not be there today. Which today, is an actual hearing about custody but I must inform the judge OF what transpired in her county and that the case has not yet been heard because she grabbed an attorney who stalled the case. I'm just wondering, if she doesn't show up but her attorney does, can she be penalized?

[NdK1009]

No. She won't be penalized for sending her representative in her place. A judge may (or may not) frown upon it, but no consequences will be levied.

[Concerned Parent9]

Thank you for your reply. I hear that purjury is not often penalized in family court cases, is this true? The way she obtained the judgment by swearing to the courts that nothing has changed in 3 years seems to be a stretch to me, especially when I can prove the child doesn't even live with her and is registered in school 4.5 hours away and has been for 7 months. I just feel an even bigger cloud of pressure because I am the Father.

There are things specifically that I feel affect her ability to parent right now, especially things that affect my son's well being. For example, I know from my past with her as well as from what mutual friends tell me about her oral hygiene that she does not take care of her teeth. Back before my son came to live with me and I would often take him for visits each month, I became increasingly aware of the discoloration in his teeth. One time, my girlfriend was playing with him and noticed that his teeth were brownish in color and his breathe was very hot and smelly. I asked him if his Mommy ever brushed his teeth for him and he said "nope!" I had asked her several times to make sure she brushes his teeth, she only just gets offended and says that she DOES. But from the looks of his teeth and the smell of his breathe, it doesn't happen very often. When he first came into my custody a little bit after turning 4, he had never been taken to the dentist before. When I took him, it was found that he had 7 cavities due to his bad oral hygiene. One of those teeth had to be root canalled and two were capped because the cavities were too large. Since living with me, he has started a routine where he brushes his teeth 2 times a day with an adult and is encouraged to practice himself throughout the day with guidance, also since his dental visit, he has started using mouth wash twice a day as well. After his mother was notified of his dental visit, her only reaction was "thanks for telling me" as if in the short period he was with me, that happened and it wasn't a big deal.

When he just went and spent a week with her for visitation (she also wrote up her own visitation with him which is once every couple of months for a week) he returned home with an abcess on his gums that I needed to take him to the dentist to be checked out. The dentist found that it was an infected root that needed to be root canalled again. She said the cause could be from too much sugar after the first major work done in his mouth OR because the cavitiy in the tooth was so big anyway, it made it's way to the root before they got to it and now it was just showing up. He took penicillin for 10 days and then the tooth had to be completely removed. 4 years old, two root canals and his first "lost tooth" is because the dentist had to pull it out? That's terrible. After his visit with his Mom, he returned home and volunteered before it was time to brush his teeth that his Mommy didn't brush his teeth in the morning or the night when he asked her too. He said that he brushed his teeth just once by himself but that his Mom wouldn't help him and that she only brushed his teeth the day she drove him back home to me. I was appalled. He is only 4 1/2 and not looking to gossip or get anyone in trouble and I don't feel he was just saying that to "please me" because I never talk about such things in front of him as far as his Mom not doing things for him. I just remind him to ask her to help him or to make sure he tells her she has too. I asked him for several days after what had happened and he told the same story each time, she didn't help him with his teeth and it was apparent as well. I am very frustrated that she doesnt care about his oral hygiene because when he gets older and these habits are not established, he will not be much interested in following through with them. I feel it's going to be a knock on his self esteem because now that he is learning these habits, I have caught him taking pride in his personal appearance. His hair is always maintained in my care and always fixed before school. She barely gets him hair cuts and never fixes his hair. He now always wants his hair done and has been trying to do it himself. I find him smiling into anything that can give a reflection and he'll comment that his teeth look "dirty" since they are stained due to her lack of care of them. I can't find any tooth paste for children that helps with the color of their teeth so I've been trying to brush his teeth at least once a day with my tooth paste to help him out because he's noticing these things and she doesn't care about them.

When he goes to visit her, she completely dresses him from head to toe, rather than just laying his clothes out and letting him do it. So when he comes home, he expects that people should put his clothes on for him, she he will often just assume that you will button his pants or put his shoes on for him and he'll put them on the wrong feet because he doesn't "remember" which is never an issue when he is with me. Only after he comes home does he have these issues and they usually take a few days to correct. There are two very different parenting sets here and while I'm all about teaching him independence so that he can do things himself, she is all about keeping him a "baby". Whenever I make suggestions that I think she needs to do something a little more for him to encourage his learning or independence, she gets mad and tells me there are things she hates about my parenting skills that she doesn't like but she doesn't say anything to me. I'm beyond frustrated.

I don't know why it's ok that someone can lie and get away with it. My case was dismissed this morning because now she has the default that she obtained AFTER she was served notice. So because her attorney stalled for her, I have to keep going back and forth... and it won't be entertained in my county unless it is dismissed in hers.

I called 5 attorneys and have received NO CALL BACKS for even a consultation. Now I have to make the drive back and forth to another county constantly to clean up HER mess while she gets to sit on her ass and not be inconvenienced by her own lies. Did I mention she has only called her child 4 times in 7 months? She see's him once every COUPLE of months, but has only called 4 times. That isn't even once a month and even if it was once a month, isn't that ridiculous for a mother of a 4 year old who is now lying to the courts and acting desperate that she wants to maintain control of the situation? She will tell anyone who will listen that her life is crippled without him in it and that he means the world to her and is her EVERYTHING.... yet she has to say that for you to know it because from what I see... her lack of calls and interest speak volumes. She has placed a lot of phone calls or text messages to me, none ever about our son and how or what he's doing... when she calls me, it's usually to try and negotiate terms of child support because she doesn't think she needs to pay what she does (only $300 she pays right now) because she feels it should only cost $150 to take care of a child and $150 for day care and since I'm not using day care, she shouldn't have to pay the extra $150, besides she wants to buy a car and could use the extra $150 as a car payment... WHAT!? This is ludicris.