Everyone has seen a hearing on TV, but very few people know the process that leads up to that hearing. 95% of family law cases get settled before they even go to trial. Family law cases can be very stressful, but knowing what’s coming next can help lessen that stress. For a few weeks, we will look at the steps of a family law case prior to a hearing.
Part 5: Motions and Rule 5 Notice
We have discussed starting a new lawsuit for custody, but you may need to make some change after a custody order has already been entered or to get the court to help you enforce that order. Maybe you fear your child is in a situation that isn’t safe, or your prior custody exchange schedule just doesn’t work for your family anymore. Maybe the other parent is threatening to move your child far away or refusing to follow your custody agreement or has cut off contact with you. Instead of filing a new case, it’s time to re-open your custody case by filing a Motion.
A motion is a filing asking the court to do something in a case that is already open. It is filed in the county where the original order was issued. If no one involved in the case lives in that county anymore, you can file a change of venue motion in which you request that the whole case be moved to the county where the child lives. Once that motion is granted, other motions can be filed in the new county.
In child custody cases, motions are usually asking the court for emergency temporary custody, contempt, or a modification of custody.
- A Motion for Emergency Temporary Custody asks the court to suspend the other parent’s visitation or custody because the child is in danger or the other parent intends to flee the state with the child.
- A Motion for Contempt is filed when the other parent is refusing to follow the court’s prior order, for instance, not letting you see the child or making major decisions about the child without your input or consent. The judge will order that the other parent comply and can sanction them for not doing so with fines or jail time.
- A Motion for Modification of Custody is asking the court to change something about the prior custody order or even put a whole new order in place. To file this type of motion, you must show the court a substantial change in circumstance. This can include changes like new parties living in the home, one parent moving to a new zip code, evidence of domestic violence or abuse in a parent’s home, a major change in the child’s age, school, or health, or any other change that impacts what is best for the child.
Motions and any other filings with the court other than a complaint must be served on the other party according to NC Rules of Civil Procedure Rule 5. Rule 5 service is much easier that Rule 4 service of a complaint. Your attorney will take care of that service and send a Certificate of Service to the court. The Certificate will say the date, the method of service, and the address, fax number, or email address used. If the other party has engaged an attorney, then the motion or other document is served on the attorney. It can be sent by mail, by fax, or handed to that attorney. If there is no attorney, then the motion will be sent directly to the other party through the mail or handed to them personally. The documents can also be sent by email if the other party agrees to accept service that way.
Motions are the most useful and most used tool in the family law attorney’s arsenal. A motion is how you communicate with the court after a complaint is filed and is how you ask the judge for the things you want.