The short answer is yes. A judge can do whatever they want; if you disagree with the decision, you can ask them to reconsider it or you can appeal. However, whether a judge will remove custody because you were late to court depends on the nature of the request for the custody change, your history of being late for court, how late you will be, and how long the hearing has been scheduled, as well as your excuse for being late. This blog explores how being late to court may affect custody modifications and what you can do if know you will be late or custody has already been changed because you were late.
Once you know, or even suspect, that you are going to be late, you need to call the court and let one of the clerks know how late you will be and why. Life happens, and even judges find themselves running behind schedule from time to time, but it is vital that you let someone know if you expect to be late to your child custody hearing. Calling ahead gives the court an opportunity to shuffle the order that cases will be heard that day, letting someone who is already there and ready to go take your spot and hearing your case later, or to reschedule your hearing for another day.
If you do not let the court know you will be late, your case will be called as usual; the judge will go on the record noting the fact that you have failed to appear. At this time, it will generally reschedule the hearing, in case you had an emergency or did not receive proper notice. However, if you have a history of failing to appear or the request for a change of custody includes allegations of neglect or abuse of the child, the court may hold the custody hearing without you. Being unable to present evidence or dispute the evidence presented by your child’s other parent can very likely cause you to lose custody of your child. Failing to appear for a scheduled hearing may also result in a finding of contempt and the issuance of a body attachment, or civil warrant, ordering your arrest.
Calling the court to discuss your absence or tardiness might help reduce the risk of a finding of contempt or the court proceeding to hearing without you. If a hearing is held in your absence, and an unfavorable judgment entered against you, consult an attorney right away. An experienced child custody lawyer may be able to get the judgment set aside based on mistake, excusable neglect (Ind. R. Trial P. 60(b)(1)), or any other acceptable reason for not appearing at the child custody hearing (Ind. R. Trial P. 60(b)(8)). If the judgement is set aside, a new hearing will be scheduled where you can present your evidence as well as defend any allegations that are made against you.
There are two statutes the court will consider when deciding whether to modify a child custody order. Modification of a child custody order (IC 31-17-2-21) will only be made if it is in the child’s best interests and there has been a substantial change in one or more of the factors the court considers when making an initial custody determination. These factors will also be used to make a decision on a custody modification. Factors considered include (IC 31-17-2-8): “(1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent.”
When testifying or presenting evidence, stick to these factors and any additional factors you have discussed with your attorney. Perhaps, more importantly, get to court on time. Take the day off work, set an early alarm, forward your phone calls to a family member to handle any issues that may arise, and have a back-up plan to get to court if your car does not start, has a flat tire, or you have any other issues making it to your hearing.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
