Permanent is Not Always Permanent

In October of 2011, after nine years of marriage, husband petitioned for divorce from wife. In his petition to the court, husband requested joint physical and legal custody of their twin daughters. Although he did not state specifically the days and times of custody for each parent, each parent would have approximately 50 percent of the time with their children. Wife never responded to husband’s petition for divorce. In February of 2013, the court granted husband’s request for a divorce and custody request in a default judgment. The court also reserved jurisdiction of spousal and child support to a later date.

Although husband and wife continued to share joint legal and physical custody of their twins after their divorce was final, the interactions between the two of them broke down. Wife went back into court requesting sole legal and physical custody. Husband argued that the wife was not allowed to go back into court to change the judgment, because the judgment itself was a final order, especially because it was a default judgment. The court disagreed with husband’s contention and allowed wife to proceed with a hearing to change the custody order.

Husband appealed.

The Appellate Court agreed with the trial court.

Although the status of a default judgment remains in full force and effect, that is, the decisions made in the judgment itself are final, certain aspects of a divorce can be reopened and modified. One of those aspects is child custody. According Section 3087 of the Family code, “… [a]n order for [joint] custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order…” The Appellate Court also noted that the law does not distinguish between whether the original judgment was through the usual court proceedings or through default because the other party doesn’t respond to the proceeding process.

In the usual course of legal events, one party files a petition requesting relief (or help) from the court from another party. The other party is given notice of the request, and has usually 30 days to respond to the requesting party’s request. If the other party does not respond within the time allowed, the requesting party can ask the court to grant the requested relief based solely on that party’s requesting documents. If the request is granted, it is known as a default judgment and has the same legal ramifications as a judgment based on the usual court proceedings.

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