I am seeking advice on writing a petition to Child Family Probate for a continuance of a hearing
Full Question:
Answer:
I am unable to provide legal advice regarding how to word a court filing. Generally, a motion for continuance has a case caption at the top, including the court name, the names of the parties, the case number, and the title of the motion.
In the body of the motion, the facts are succinctly stated, such as the date the action was filed, the currently scheduled date of the hearing, and the reason for requesting additional time, such as the need to obtain legal representation. The motion may state the reason for the inability to obtain counsel, such as absence from the jurisdiction, and that the motion is not being made for purposes of delay, but to prevent injustice. The court may deny the motion if it finds the failure to obtain counsel is due to unreasonable delay, lack of diligence, or neglect on behalf of the moving party.
The final paragraph is called the prayer for relief, in which the moving party respectfully requests that the court grant a continuance for the matter scheduled on a particular date, and is signed by the party or their attorney. Typically, a notice of motion and certificate of service follows. It is also possible to file a stipulated motion when the other party or their attorney has agreed to the continuance. I suggest calling the clerk of court, as local court rules regarding motions for continuance vary by court.
The following is a MA rule of civil procedure:
RULE 40.
ASSIGNMENT OF CASES FOR TRIAL: CONTINUANCES
(a) Assignment of Cases for Trial. Cases may be assigned to the appropriate calendar or list for trial or other disposition by order of the court including general rules and orders adopted for the purpose of assignment. Precedence shall be given to actions entitled thereto by statute.
(b) Continuances. Continuances shall be granted only for good cause, in accordance with general rules and orders which the court may from time to time adopt.
(c) Affidavit or Certificate in Support of Motion. The court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit which shall state the name of the witness and, if know, his address, the facts to which he is expected to testify and the basis for such expectation, the efforts which have been made to procure his attendance or deposition, and the expectation which the party has of procuring his testimony or deposition at a future time. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. The same rule shall apply, with the necessary changes in points of detail, when the motion is grounded on the want of any material document, thing, or other evidence.
