Legal Question in Family Law in California
I filed for custody of my daughter and my friend attempted to serve my daughter�s father. She ended up leaving the papers with his boss. 7 days later the father responded and I received his papers from the court giving me full physical and legal custody. Copies were FL220 where he filled in the boxes to give me (petitioner) full legal custody and full physical custody of my daughter. He also sent a fam014 request for trial setting family law. Under visitation he selected none but also selected mediation.
The day I received his papers I went to the court to file the proof of summons and set a court date. I found out from the self-help that I didn�t fill in all the papers for support, only for custody. They gave me a FL 300 order to show cause (to fill in child support only) since stating he already gave me custody so I didn�t need to revisit that. , FL310 App for order and supporting declaration, and FL 150 income and expense declaration. I filled all this in and according to the self-help team I didn�t have to personally serve these items, only have someone mail them so I had my friend mail to his address listed on the documents he returned to me, they were mailed return receipt. My friend received the proof of mailing and return receipt back so I know he received these documents. I went back to the court house and requested a court date and at the same time filed the original proof of summons from the first filing. (I wasn�t in a hurry to get it back since he already responded to the original summons) They gave me a court date.
Now today I received back a notice from the court that my proof of summons (for the original filing on which he already responded to) was rejected because a declaration of diligence for substitute service was not included and to resubmit with this form. So my first question is do I have to do this since he already responded?
Secondly, was it okay that I had my friend mail him the order to show cause and app for order and supporting declaration and income and expense declaration (FL 300, FL 310 and FL 150) instead of performing personal service even though I have a proof of delivery back from that or do I have to have him re-served with these forms via personal service instead of via email?
Lastly, since he checked the boxes to give me full legal custody and full physical custody and filed that with the court, can he change his mind when we actually go to court since he is now going to be having to pay child support? I think he didn�t want anything to do with her (hasn�t seen her more than 10 times in a year and last time he saw her or spoke with her was in Dec 2011.) My daughter is only 4 and she doesn�t even know him. But now that he gave me full custody he may have to pay more. I�m concerned he may try to get custody just to get out of paying some of the support.
1 Answer from Attorneys
You mention that you received his response, but the big issue is whether they were filed.
1. When service is made by substituted service, the proof of service must be accompanied by a declaration of diligence. That is a declaration by the process server or servers showing the number, times, addresses, etc. of the attempts to serve by personal service. You don't mention whether he has filed, which gets the court off your back when they ask you whether he has been served, but you should be on the safe side and resubmit the proof of service with the proper declaration of diligence.
2. A party can be served by mail once they have appeared in the action. A party appears when they file a response. Again, the operative inquiry here is whether the response was filed.
3. Custody and visitation are ongoing issues in any family law case, and can be expected until the child turns 18.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
