In any court case – civil or criminal – it’s important to show up.
In criminal court, failure to appear can result in a warrant for arrest, additional jail time and fines. In a civil case – including divorce – you likely aren’t going to be jailed for skipping out, but repercussions could still be quite severe in terms of asset division, support payments and parenting time arrangements.
There may be situations in which your divorce lawyer can appear in court on your behalf. However, there are times it is imperative for you to be there as well.
We certainly understand a divorce is draining. Court dates also might conflict with work or child care arrangements. However, if absence from court isn’t excused, you may find you are stuck with the hand you are dealt. If you’re not there to speak on your own behalf, the judge is only hearing one side of the situation – and it’s probably not favorable to you.
Our Brooklyn divorce attorneys understand this was recently the scenario in Wong v. Liu, before the Supreme court of New York, Appellate Division, Second Department. Here, a father appealed the decision made by the judge on a day he failed to appear in court.
The court, upon his failure to appear, granted his ex-wife’s petition for sole legal and physical custody of their child.
The pair had been involved in what appears to have been an arduous custody battle. In the course of this, the mother testified and was cross-examined on several dates. On the day of the final hearing, the father did not appear. His attorney contacted him, and was told he “did not wish to appear.” That message was conveyed to the court, whereupon the court awarded the mother full custody.
Soon after, the father filed a motion to vacate that order, requesting that his absence be excused. Six months later, the court reviewed his motion, and denied. Soon after, though, he was awarded certain visitation.
The father appealed all three orders – the order granting sole legal and physical custody of the child to his ex, the order denying his motion and the order awarding some visitation.
The appellate court declined to entertain the appeal of the first order, because orders entered on default of the appealing party are not appealable by that party. The decision of whether to reconsider the matter is within the sound discretion of the trial court. The only way a person could successfully vacate such an order would be to prove that the excuse for default was reasonable. That would maybe establish a cause of action or defense.
However, that did not happen here, the appellate court found, and so the trial court’s ruling was affirmed.
The court doesn’t necessarily have to decide the matter in favor of the other spouse. It could alternately decide to reschedule the hearing or dismiss the underlying case or motion. The outcome usually depends on the reason given.
An experienced divorce attorney can advise you of what may be considered “reasonable default” or provide explanations for why you didn’t show up in court. Simply not wishing to come is not one of them. It’s worth noting judges tend to have little patience for repeated absences.
There are sometimes valid reasons for why a person might not be able to make it to court or request a rehearing. But if you anticipate this might at all be an issue, it will be imperative to have a skilled divorce lawyer working to protect your rights and best interests.
If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.
Additional Resources:
Wong v. Liu, Oct. 1, 2014, Supreme court of New York, Appellate Division, Second Department
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