Q. I want to file reply paperwork in opposition to the Responsive Declaration I received from my ex on a pending motion for child custody. How and when must this be accomplished?
Failure to comply with rules relating to the service of court papers can
result in your pleadings being ignored or stricken by the Court, or a
request by the opposing party for a continuance of your hearing. If you
are defending an application to the Court, you are well-served to know
these rules if objecting to the other party's submittals to the Court
if you need additional time in which to gather evidence or otherwise respond or reply.
The time limits for filing documents with the court relating to family law proceedings in California are generally the same as those for other civil actions. They are primarily governed by California Code of Civil Procedure section 1005. In order to be "timely" (and hence to ensure that they are read and considered by the trial court), your papers must be accompanied by a Proof of Service that shows that service was accomplished within applicable deadlines. That proof of service must be signed by a non-party.
- Moving and supporting papers (including the original Notice of Motion or Order to Show Cause application), must be served and filed 16 court days before the hearing date.
- However, add five days if the moving papers are not served personally but if instead they are sent by first-class regular mail from California to an address within this State (i.e., the proof of service must be dated at least 21 days before the hearing date).
- Add ten days instead if the place of mailing is outside of California or if the address to which the mail is being sent is outside the State.
- Add twenty days instead if the addressee resides, or the sender is serving from, outside the United States.
- If the recipient is outside the State, or the sender is out of state, but you serve by FAX, express mail, or another method of deliver providing for overnight delivery, add only two days.
- Opposition papers, like Responsive Declarations or Points and Authorities, must be filed with the Court and served at least nine court days prior to the hearing date.
- Reply papers, in response to opposition pleadings, must be filed and served at least five court days before the hearing.
- However, and importantly, note that CCP section 1005(c) requires that all Responsive Declarations (and other opposition paperwork) must be served by personal delivery, FAX, express mail, or other means sufficient to assure overnight service, "and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed". This includes all attachments or exhibits to those papers.
- This last point applies equally to Reply pleadings and supporting exhibits. A Reply must be filed with the Court clerk at least five court days before hearing - and the other party must actually receive it by the next day!
To be candid, attorneys often get these filing/service dates wrong: I did
- once. If your attorney does get it wrong, resulting in a continuance
in the hearing of your application, in my opinion you should not be billed
for that day's efforts - and a lawyer who thinks you should be billed
when they make this kind of mistake may not be your best choice for continued
Conversely, it is a ground for requesting attorney fees if you are the resisting party who is forced to return to court another day (assuming that an attorney fee request is already pending, because without it there is no jurisdictional basis for the court to reimburse such fees). If you don't have an attorney, you don't get attorney fees.
FAX service can be problematic. I recommend overnight mail or personal delivery by a third party instead.
Finally, if you are serving documents on the attorney for the other side personally, please review CCP section 1011.
Author: T.W. Arnold, C.F.L.S.