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Ask Legalease Your Own Question
Legalease
Legalease, Lawyer
Category: Family Law
Satisfied Customers: 16294
Experience:  13 years experience, divorce & custody issues, protective orders, child abuse issues
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Customer Question

A Guardianship
The mother has untell 3:00 p.m. on Friday, July 27, 2012 to file a written objection to the Guardianship. The objection will be served to the temporary guardians.
The objection was filed on time, but we were not served.
What can we do?
Submitted: 4 years ago.
Category: Family Law
Expert:  Steven K. replied 4 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

While you can object to the late service, the most practical matter is to get a copy of the paperwork so that you know what to expect. The court can either strike the document because of your objection or it can admit the document but grant you a continuance.

Steven Kincaid :

Also, since the order does not specifically state the time/ date by which service was required, service might be timely if it complies with the statutory guidelines for service. When is the upcoming hearing?

Steven Kincaid :

I apologize, I will opt out because I have a sudden emergency. You may continue this chat with someone else.

Expert:  Legalease replied 4 years ago.

Hello there -

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I apologize for this delay in someone picking up the question for you from my colleague, Mr. Kincaid. This is the first time I have seen this and would have stepped in earlier if I had known you were still waiting for a response.

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It appears from your posting that you have an extremely tight time schedule here and it was probably put in place by the Judge because he/she wants to get these matters finished up quickly. I assume that the order for the Mother to respond was put into place at the July 23 hearing. She had to respond by July 27 because that is exactly 10 days before the next court hearing on Aug 6. Court procedural rules require that parties be served with documentation at least 10 days prior to the next hearing -- so if the response was filed by mother on July 27 and you were served with it on July 27 then you would have had the appropriate 10 days before the Aug 6 hearing.

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If you have not yet received the response or been served with the response, you do have the right to request that the court dismiss the mother's objection to the guardianship based upon improper service of process - and depending upon what has happened overall in this case and the mood of the Judge handling the case, you just might be able to get the court to dismiss the case on this issue (if a party in a case has been particularly non-responsive and the judge is annoyed, the Judge could be looking for a reason to throw the case out -- you simply never know). However, if there are no other issues or problems with the case (or the mother) and the judge has no real reason to feel any animosity towards the other parties to the case (Mother, etc), then the reality of the situation and the fact that you were not properly served will most likely not be a big issue with the court and the Judge will most likely let the Aug 6 hearing proceed as if you were served OR the Aug 6 hearing will be postponed to a later date to give you time to review the response -- but the case will continue on as if you were served the paperwork.

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So, it is up to you how you want to approach this situation -- you can simply ask the court for the copy of the filing made by the mother and use it to prepare for the Aug 6 hearing -- or you can file a motion to dismiss her objection as being untimely filed and improperly served (the improper service will support the untimely filing claim). If you have more information you would like to give to me so i can assist you with further answers and/or clarifications, please feel free to do so (I am working all evening).

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Best of Luck

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MARY

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