Effective January 1, 2011, you may serve post-judgment motions to modify
custody, visitation, or child support orders by regular mail and file
with the Court a
declaration of mailing.
This is revised
Family Code section 215. Until now applications to change these orders needed to be personally
served upon the other party. This created hardship and added expense for
many people, since it can be difficult to locate the whereabouts of the
other parent in some families months or years after a Judgment for Paternity,
Nullity, or Dissolution of Marriage or Domestic Partnership. This often
necessitated service by publication if there was no good address - publication
in a newspaper can approximate $400, and service is not deemed effective
for at least a month after the fourth week of being published. Moreover,
an order permitting Service by Publication also needed to be obtained,
which itself costs money and time. To this extent the revision is a good thing.
The bad news is that this provision may encourage fraud, which might result
in hearings where only one party really knew to be present. Litigants
may claim that the papers were mailed when they weren't. Perhaps the
person who signs the declaration (grandma) doesn't walk the letter
to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't
- how could it be proved? What happens when someone doesn't get the
mail on the receiving end, whether because of the letter is lost, by inadvertence,
or for having moved? So long as the moving papers contain the required
Proof of Service they are presumptively valid and orders will issue even
when the responding party fails to show up for the hearing.
Hence, the burden of attacking a modification taken by default shifts
to the answering party. For instance if an order is issued by reason of
their mistake, inadvertence, or surprise it remains valid until and unless
a successful challenge is filed and upheld. These motions are expensive,
and judges tend to disfavor them. Here your remedies are (a) filing a
motion to quash service, which you won't be able to prove (how does
one establish the pleadings weren't mailed?) and/or (b) filing a set
aside motion pursuant to
Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order
is entered. Likewise, while there is no time limit for setting aside orders
obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third,
the other party must bear all the initial expense, which can be considerable
since these motions are technical and require the help of an attorney.
Fourth, anyone responding to a motion is already at a disadvantage. The
moving party has whatever time they needed to draft their paperwork, but
once this is "served" the respondent must answer within about
15 days of the date of mailing (I will Blog the exact timing separately).
Fifth, it is hard to un-ring a bell once a Court has heard from one party.
FC 215 streamlines litigation where people are responsible.
It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents
who have gone 'walk about.' The greatest likelihood for abuse
is with child support modifications.
One thing is for sure:
You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still
in high school and live with the first parent. If you move and fail to
notify the court, and a modification occurs in your absence, you may not
be relieved of your carelessness once you finally learn of the new orders!
Thurman W. Arnold, CFLS