Father Who Represented Himself in Custody Appeal Denied Relief For Failure to Follow Procedure

law-education-series-3-68918-m.jpgFor various reasons, many people attempt to represent themselves in court actions. Sometimes it works out fine. But most people in the legal profession would advise families against self-representation in family court cases that involve children. The outcome of a child custody dispute can impact the entire family’s future on many different levels: financially, emotionally and logistically. It is very important that the parents’ and the child’s rights are protected every step of the way. If you are facing a child custody matter, you are encouraged to contact a local San Diego family lawyer who is highly experienced handling such cases.

In a recent California case, the wife sought orders of custody and visitation of the children who were eight and ten years old. The court commissioner granted the parents joint legal custody, but awarded the wife sole physical custody. The father was only permitted to visit the children in the presence of the wife and/or a member of the family’s congregation. Further, the commissioner directed the parents to arrange for a family court services mediator to interview the children. The father moved for an increase in visitation. After reviewing the mediator’s report, the commissioner appointed an approved custody evaluator to perform psychological testing and a full child custody evaluation. The parties were to return to court for a hearing on August 20, 2012.

The parties agreed to and signed a stipulation continuing the August 20 hearing to August 27. Prior to the hearing, the wife filed a request for attorneys’ fees and costs as well as for a declaration relating to custody and visitation orders to be considered at the August 27 hearing. The father failed to appear at the August 27 hearing. The commissioner modified the order, reducing the husband’s visitation rights and limited him to supervised visits once a week at a family center. The husband filed a motion for reconsideration on September 27, which was scheduled to be heard on November 5. He failed to appear on that date and on a continued, subsequent date. The court took the hearing off the calendar.

On February 27, 2013, the husband, representing himself, filed a motion (under section 473(b)) to vacate the order entered on August 27. Under state law, such motions are to be filed within a reasonable time, not to exceed six months. The husband claimed that the motion for reconsideration was withdrawn due to attorney error. He asked the court to consider that he was representing himself and he was unclear about the requirements set forth in section 473(b). The court denied his 473(b) motion.

The court of appeals affirmed the decision, noting that the motion was not made within a reasonable time. Further, the husband failed to explain the circumstances of his former attorney’s alleged error. The court also pointed out that the husband failed to show that he acted diligently in seeking the 473(b) relief after the withdrawal of the motion for reconsideration. Significantly, the court noted that parties appearing “in propria persona” (self-represented) are held to the same standard of knowledge of law and procedure as an attorney.

While this is an unpublished decision, the court’s underlying legal reasoning could inform future cases in this jurisdiction. In this case, the father lost an opportunity to appeal a visitation order due to his failure to follow the local procedure. As we can see, the importance of seeking legal guidance on child custody matters cannot be overstated.

Roy M. Doppelt has been representing parents involved in child custody disputes for more than 20 years. Doppelt & Forney serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt & Forney through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).

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