How does custody work in a default divorce?

UPDATED: Sep 30, 2022

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How does custody work in a default divorce?

I filed for divorce but my ex failed to respond after being served so default was filed the court mailed us both info for the final hearing now my ex says they are going to attend by phone. However, she has not filed any of the required paperwork at the court is out of state and thinks she can just call in at time of hearing how would this affect the divorce? There are 2 minor children

involved. I have requested full custody she wants to call because she thinks she can get child support if she does. It was my understanding she has no rights; she chose to give them up by refusing to respond when she was served.

Asked on March 9, 2016 under Family Law, Colorado


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If the divorce has already been granted and finalized, then the custody agreement set out by the court controls.  To get a different custody agreement, your ex- would have to file a motion to undo the final order.  Calling in to make her case won't be sufficient.
If the divorce was still pending and no final order had been entered, then your ex- could still assert her right to be heard.  Defaults are not automatic.  Meaning, even if she didn't file something in time, she still had the right to appear at any time before the final order was entered. 
The trial court has the authority to allow someone to participate telephonically.  However, her testimony and relief will be limited because she has not filed any pleadings.  Pleadings are what she is asking the court to do.  They also serve the function of putting everyone (you and the court) on notice of their wishes. 
This should not be a lengthy hearing, but you still need to be prepared to present your case and make the argument for being the main parent for your children.  If she fails to show up for court or can't make it to the court room, it sometimes sends the message to the court that this case is not that interested in this case. 
Your part of the case should include why you should be the primary parent, what you have done to help with the transition of your children, how they are doing in your care, and the absence of emotional or monetary support by their mom.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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