It is not uncommon for either party in a divorce or custody proceeding to seek a modification of a court order. The non-moving party is entitled to respond to any request for a modification and can request affirmative relief. The non-moving party is not permitted to request relief that is not an alternative to the relief requested by the moving party, or that does not arise out of the same issues, however, as recently explained in a case arising out of a California Court of Appeals. If you are in the process of deciding to end your marriage and you must determine a custody arrangement, it is important to retain an experienced California divorce attorney to assist you in protecting your rights.
Factual and Procedural Scenario
Husband and wife were married in November 2000. The wife knew the husband had been convicted of a sex crime, but she did not know the details of the crime, which was that he molested his stepdaughter from the time she was eight to twelve years old. The parties had a daughter in 2007 and separated in 2008. The wife filed for divorce in 2009 and sought custody of the daughter. The marriage was dissolved in 2010. The parties stipulated to share legal custody of the daughter, with the wife having primary physical custody. The father’s physical custody was limited to seven to twelve and a half hours weekly.
It is alleged that the husband filed a petition for modification, seeking a fifty-fifty split of physical custody. The wife filed three pleadings in response, in which she requested attorneys fees and costs associated with responding to the husband’s petition, and asked the court to require the husband’s custody time to be monitored, due to his prior criminal history. The court denied the husband’s request for a modification but granted the wife’s request for monitoring of the husband and for attorney’s fees. The husband appealed.
Scope of Relief Permitted
The court noted that when one party in a divorce action files a petition for relief, the opposing party can file a responsive pleading and can request alternative relief, but only if the relief pertains to the same issues set forth in the initial petition. Here, the court found that while the wife’s petition for monitoring was proper, her petition for attorney’s fees was not. The court stated that a party responding to a petition for relief cannot change or expand the issue set forth in the petition, but can only respond to the claims introduced by the moving party. If a party wishes to pursue relief for a separate issue, he or she must file a separate petition. The court explained that a request for alternative relief in the manner of attorney’s fees is intended to harm the petitioner, and does not address the relief sought. Thus, the court reversed the trial court’s award of attorney’s fees.
Meet with an Experienced California Divorce Attorney
Divorce cases are often acrimonious, and divorces that involve child custody can be especially difficult. If you have a child and are in the process of ending your marriage, you should meet with a trusted divorce attorney to handle your case and pursue a custody arrangement that is in the best interest of your child. Ethan M. Weisinger is an experienced California divorce attorney and will work diligently to help you preserve your rights. Mr. Weisinger can be reached at (925)258-2020 or find us at www.wcfamilyattorney.com to schedule a consultation.
More Blog Posts:
California Court of Appeals Affirms a Trial Court’s Finding that a Child has Three Parents, Walnut Creek Divorce Lawyer Blog, November 17, 2018
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