Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com

Q: I wrote a letter to a judge asking for more visitation. She set the hearing, but I missed it because of a doctor's appointment. The Circuit Clerk told me that I will have to start over. What does this mean? Do I have to ask for another hearing? Do I have to file something?

A: The first thing that you need to do is to find out exactly what happened when you did not show up to the scheduled hearing. You can do this by asking to see the docket sheet or by asking the Circuit Clerk to look at the docket sheet for you. The docket sheet is an ongoing record in your court file of notes by the Clerk and the judges who have presided over your case.

If the judge dismissed your request (called a motion or petition), then yes, you will have to file a motion asking for a change in the visitation order. You can get this form on our website at /selfhelp. Click on the "Child Support/Visitation/Custody" icon and look for "Modifying a visitation order". This is likely what happened in your case and is why the Clerk told you that you would have to "start over." There is a possibility, however, that the judge simply rescheduled your hearing or postponed it waiting for you to reschedule a new date. If this is what happened, then all you need to do is either find out when the new date is or ask for a new hearing date. Even if this is what happened, however, there are 2 good reasons why you should file the motion for a new visitation order anyway.

First, if you wrote a letter to the judge asking for an increase in visitation, it is likely that you did not send this same letter to the custodial parent. Even if you did, it is likely that you forgot to state the reasons why you wanted more visitation in the letter. The problem with this is that if the custodial parent finds out about the hearing and shows up, he/she will likely get a continuance (a delay) on the grounds that he/she had no idea what was going on and needed time to file a response or seek the advice of an attorney. By sending a formal motion to the custodial parent before the hearing, you are reducing the chances that the custodial parent will get this continuance.

Second, If you missed your hearing date, it is likely that you also did not notify the custodial parent about the hearing. You may be surprised to know that notifying the opposing party of a hearing on your motion is your responsibility, not the Circuit Clerk's or the judge's. While some Clerks or judges automatically send a notice to the opposing party (in this case, the custodial parent) when a motion is set for a hearing, not all do and if the custodial parent does not know about the hearing, it is likely that the judge in your case will not even consider your motion when you appear. By filing a formal motion and mailing it to the custodial parent before the hearing as well as sending him/her a notice of the scheduled hearing, you will save yourself a lot of unnecessary delay.

Do you have a legal question? Write us at Self Help Legal Center, SIU School of Law, Mailcode 6804, Carbondale, Illinois or e-mail us at selfhelp@siu.edu. Not all questions will be answered and may be edited for space or content.

Legalities is written by the Self Help Legal Center, a public service of the SIU School of Law. The Self Help Legal Center cannot provide legal representation. It can, however, help you find the answer to your legal problem. This column is for general legal information purposes only and the advice given in this column may not apply to your situation. For specific legal advice about your situation, you should consult an attorney licensed to practice in Illinois. This column is not meant to give legal advice and does not create an attorney-client relationship.