Losing custody of your child or having the court restrict your access is a devastating experience. But it is particularly heartbreaking if you lose that access because of a default custody order. A default custody order is a judge’s decision in favor of one party due to the opposing party’s inaction. In Texas, the family court may grant a default custody order if you fail to answer a custody petition filed against you or you fail to appear in court for custody hearings, and the court may enter that default judgment without you even knowing about it.
If you are trying to reassert your custody rights after discovering that there is a default custody order against you, here’s what you need to know to fight back and win.
How does a custody case begin?
To begin a custody case, the person initiating the claim must serve an original petition and a citation against the other party. The petition states why the person filing for custody is seeking a change to the custody arrangements in their favor. The citation is the court’s formal notification to the other party that they are being sued.
Following receipt of this petition, the other party, or respondent, must file an answer. An answer tells the court that you intend to defend your custody rights and present your perspective on your child’s custody arrangements. Once the parties file their petition and answer with the court, the custody cases begins, and the court will schedule a series of hearings to check on the status of pre-trial matters before scheduling a date for trial.
What is a default judgment?
In Texas, the respondent must file their answer to the custody petition by 10 am on the Monday 20 days after the service of a petition. If the respondent fails to file a written answer within that time frame, the court may issue a default judgment against the respondent and in favor of the person filing the custody petition. This means the court will reduce or terminate your custody rights per the requests made in the petitioner’s court filing.
What can I do if the court issues a default custody order against me?
If the court has entered a default custody order in your case, you’ll want to file a motion to set aside the default judgment and request a new trial as soon as possible. Generally, a respondent must file a motion to set aside a default judgment within 30 days of the date the judge ordered the default judgment. Because you were unaware of the custody case to begin with, you must start the process of filing a motion to set aside the judgment as soon as possible. You may be closer to the 30-day deadline than you realize.
What do I need to prove to get the court to set aside the default judgment?
The court will set aside a default judgment for 4 main reasons. They are:
• Defects in the citation,
• Deficiencies in the petition,
• Defects in service of the petition, and
• the Craddock factors.
What do defects in the service of the petition look like?
When someone files a case against you, they have to give you notice of the case in very specific ways. In Texas, those notice methods are limited to service:
• In-person or by certified or registered mail by a constable, sheriff, or private process server;
• By publication in a newspaper, on the state’s citation website, or by posting at the courthouse if they can find you for personal service; or
• Any other means of service set by the judge in your case.
If the petitioner does not serve you using one of these methods, there may be a defect in service that you can use to help overturn the default custody judgment in your case.
What are the Craddock factors, and how are they a defense to a default custody order?
The Craddock factors come from an extraordinarily influential Texas court case titled Craddock v. Sunshine Bus Lines, Inc. In the case, the court found that a defendant is entitled to a new trial if they can demonstrate that:
• Their failure to appear was not intentional or the result of conscious indifference,
• They have a meritorious defense, and
• Granting a new trial will not operate to cause delay or injury to the plaintiff.
When it comes to setting aside a default custody order, showing the court that your failure to appear at a custody hearing or file an answer was accidental and not intentional is vital to turning the tide in your favor.
If you need assistance fighting a defaulting judgment in your custody case, Angela F. Brown and Associates is here to help. Contact us today to schedule a confidential consultation with our law office.
This is the ninth article in our Unthinkable Series. We’ll publish articles about some of the unique custody situations we’ve encountered in our practice with tips to help you overcome similar challenges during the series. Then we’ll host a live Q&A session where you can get your custody questions answered in real-time later in the week. If you have questions about this series or would like to submit a question for our live Q&A, please contact our office here.