Typically, when parties to a custody matter do not show up for a scheduled hearing, they cannot simply appear at a subsequent hearing. Failing to attend a hearing is considered a default and the party is barred from participating in future proceedings. In order to attend, the parent must file a formal application with the court and provide the reasons for his or her default. However, there are exceptions to this rule in certain instances.
How Can You Get Approval to Attend a Custody Hearing After a Default?
Generally, a formal written application is required if you want to participate in hearings after you defaulted. However, the court may allow a verbal application in its discretion meaning that you could appear at the custody hearing and ask the judge to allow you to participate and provide verbal reasons why you failed to appear previously. The judge may grant your request if it’s in the interest of justice, judicial economy and the best interests of your children.
When Will the Judge Allow You to Participate After a Default with a Verbal Application?
Absent abuse or neglect, New York courts want both parents to have a relationship with their children. As a result, there are additional considerations a judge may take into account in allowing a parent to participate in a custody hearing after a default. Depending on why the parent defaulted and the relationship between the parent and children, the court may allow a parent to attend subsequent hearings with only a verbal application to the court. While this is against the technical rules, the judge does have the discretion under the law to waive the requirements for a written application.
What Should You Do If You Failed to Attend Prior Custody Hearings?
You should consult an attorney for assistance. A lawyer can advocate on your behalf before the judge as well as file a formal application if it is needed.
If you cannot attend a court hearing, don’t simply ignore the hearing. It is always best to try to get a postponement in advance rather than seek to vacate the default.
Hiring an experienced matrimonial attorney can help ensure that you comply with all court rules and present a strong case in your favor. If you are considering divorce, contact us to discuss how we can assist you in achieving a positive outcome in your case.