Challenging Default Custody Rulings for Fathers Who Missed Court Dates in Minnesota

Blizzards, car breakdowns, health crises, a failure to send the right kind of notice—any of these could stop someone from learning about a custody petition or appearing in court. Unfortunately, missing a court date can result in a default entry of judgment against you. And a default judgment often means that the other party gets whatever they asked for—even full custody.

Just missing a deadline or an appearance doesn’t make you a bad father. But how do you get that across to the court and fight for your children?

The Default Judgment Process in Custody Matters

In general, the opposing party in a court case can get a default judgment against you if:

• You did not respond by filing an answer after you were served with notice, or
• You did not appear at the scheduled hearing, if any.

In a custody matter, you should typically have received one of the following:

• Notice of Petition for Divorce with Children—this petition makes a custody request
• For unmarried couples, a Summons to Establish Custody and Parenting Time
• Notice of Motion for Change of Custody
• Request to Establish Third Party Custody, if another person believes they should care for the child

The petitioner—your child’s mother or another party seeking custody—has to serve you formally with the notice, unless you agree to sign a form waiving service and stating that you already have the notice. The court may also allow her to serve you by mail or, if they cannot find you, by publishing the notice in a newspaper. Once you have received it, you only have a certain period to respond to the notice by filing an answer.

That time period depends on the motion or petition, plus the kind of service. For example, after being served, a spouse must file an answer to a divorce petition within 30 days, but an unmarried parent only has 21 days to file an answer to a Petition to Establish Custody and Parenting Time. The period will be longer if you waived service or if they served notice by an alternate means.

If you missed your deadline to file an answer, the petitioner can file an affidavit of default and request a hearing. Without your appearance, the court is likely to give the petitioner everything she could reasonably ask for simply because no one has presented any argument on your side.

Vacating the Judgment: How It Can Work

Generally speaking, once a court has entered a judgment, the other party can object to it by filing a motion to vacate—to toss it and start over, in whole or in part—but they have to show legal grounds for this request.

Furthermore, the defaulted party has to act fast. Part of your argument to vacate the judgment will be to show that you responded as quickly as possible when you learned what was happening. You must also show that you have at least a reasonable argument to raise in the case itself and that vacating the judgment will not cause undue damage to anyone.

The next issue is what exactly went wrong for you during the motion process. Were you unable to answer and appear, and why? You may be able to challenge the judgment on these grounds.

Failure of Service

If you were never served with notice, you can certainly explain why you never responded to it. Many things can go wrong in the service process. Personal service—delivered by another adult not involved in the case—is the standard and considered the most reliable. However, it’s not unknown for the process server to serve the wrong person entirely.

The petitioner needs the court’s permission for alternate service—sending notice by first-class mail or publishing it in a newspaper. Mailings can go awry, and the petitioner may not have had the correct address. Legal notice sections in the paper are rarely read, especially by those who don’t expect to appear in them.

Your argument to vacate may be stronger if you can show that the petitioner should have known where to reach you but did not use that information. Fraud or misconduct is a solid ground for a motion to vacate, although you must be able to prove it.

Military Rules Should Apply

Federal law requires a court to reopen a case with a default judgment against a servicemember if that judgment was entered during or just after their military service. See 50 USC § 3931. What’s more, military members must follow certain procedures in a divorce or child custody matter, or else the judgment will not be valid.

Reasonable Excuse for the Failure to Act

Whether a court accepts that you had a reasonable excuse through “mistake, inadvertence, surprise, or excusable neglect” will depend very much on the facts of the case. Ignorance of the law is no excuse, as the saying goes, but you may have been misled under the circumstances. You may also have been physically prevented from answering due to severe health issues, incarceration, or other extraordinary situations.

Don’t Give Up Hope

No matter how hard it seems, reach out for help. This is a confusing area of law, and there’s no benefit to trying to manage the situation yourself. Attorney Padraic Walsh knows from personal experience how painful it can be to fight for custody, and that’s why his firm is dedicated to helping fathers. Contact the Minneapolis office today at 612-712-3405 to schedule a free consultation.