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Category: Family Law
Satisfied Customers: 112
Experience:  Attorney
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Can a filed but unserved Motion for Continuance (no notice

Customer Question

Can a filed but unserved Motion for Continuance (no notice given to the other party) be considered a void act - if it was granted?
Submitted: 1 month ago.
Category: Family Law
Customer: replied 1 month ago.
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Customer: replied 1 month ago.
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Customer: replied 1 month ago.
void act cannot be ratified* could that case law apply to a filed and unserved motion for continuance
Expert:  lawyerJ replied 1 month ago.

Hi there. My name is ***** ***** I'm a licensed attorney. I'm reviewing your question and will respond shortly. Please note, all information is provided for educational purposes only.

Expert:  lawyerJ replied 1 month ago.

So it's not "void," because that entails that it's automatically nullified. However, you do have recourse. Whenever a motion is filed, it is required by the court that it is validly served on the other party. In fact, there is an attachment on each motion called a Certificate of Service that states that the motion was served. What you could do is file a Motion to Reconsider based on the fact that you were not serve the Motion and thus did not have the opportunity to file your response and be heard. The Court can then consider your motion and decide whether to reconsider the Motion for Continuance based on the new arguments that you've presented.

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Customer: replied 1 month ago.
what if the case is closed?
Customer: replied 1 month ago.
more than 6 months
Expert:  lawyerJ replied 1 month ago.

The Motion for Continuance shouldn't have closed the case, it would've just delayed the hearing. What kind of case was it?

Customer: replied 1 month ago.
It was a child support case that turned into a family case when the child support was suppose to be finalized, but the continuance I wasn't made aware of before court was granted and it turned into custody battle
Expert:  lawyerJ replied 1 month ago.

Ok. Well then you can refile as a Motion to Modify your parenting plan or child support. You can make a note of the issue of the motion for continuance not being served properly, but it wouldn't be the main issue in your motion. Instead, the Motion to Modify can argue why the current parenting plan should be altered and why. Because the case has been closed for six months, that's your best option as the statute of limitations has already run for a motion to reconsider.

Customer: replied 1 month ago.
Why isn't it void? Or some how illegitimate ? As in a violation of my rights to due process?
Expert:  lawyerJ replied 1 month ago.

If you were contesting the service, you would've had to file a motion to quash for illegitimate service. However, because the case moved forward without a motion to quash it would not be challengeable at this stage. The only way that this would be able to be reexamined would be if you failed to appear at the hearing and defend your position because of the lack of proper service. As you still attended the hearing and defended your position, it would be unlikely that a court would consider this argument. Service is CA is intended to provide notice and summon you to appear to defend the case. If you did that, the Court would deem that you had sufficient notice and that your rights were not violated.

Additionally, if this was an issue that you wished to raise as case determinative, it would've had to have been brought either immediately after the continuance was granted, or immediately after the final decision was made in the case. Courts only permit these type of motions for a certain period of time -- at max 30 days. They would not consider such a motion six months after the trial.