How do I receive visitation rights to see my six year old son?
Full Question:
Answer:
We regard to visitation rights to see your son, this should have been
covered in the order granting you and your ex-wife a divorce (assuming that
you and the mother of your son are divorced).
There are numerous ways to change an order, but not every way is
appropriate for every type of court decision. In order to understand which
option applies to a particular order, it is necessary to understand how orders
are determined.
Types of orders or judgments:
An order or judgment after a trial when both sides participated
In this case, both sides are present during the trial, testify, call witnesses on
their behalf, and present whatever evidence they believe will prove their side
of the case. After both sides have made their arguments, the court will
render the final decision.
An order or judgment on a default, or an order dismissing a case for failure
to appear. In this case, only one side is present and the court proceeds to
trial with one side missing. If the plaintiff fails to appear, the court can
dismiss the case. If the defendant fails to appear, the court will hold a one
sided trial, called an inquest. Usually, plaintiffs will win these cases since there
no defense is presented.
An order or judgment by means of a settlement. In this case, both sides are
present, but instead of having the court make the decision, the parties agree
to resolve the case on mutually agreed upon terms.
Means of changing orders or judgments
1. Appeal
An appeal is available only from orders or judgments following a trial where
both sides appeared. An appeal is by definition an argument to a higher court
that the trial court made a mistake, either in deciding a disputed fact, or in
applying the law. Therefore, no new facts may be introduced during an
appeal; appellate review is limited to the record made during trial. The
appellate court will determine if mistakes were made during the trial, and if
so, whether or not these mistakes would have affected the outcome of the
trial.
2. Modification
A modification does not seek to change an old order. Instead, it seeks a
new order based on a new set of circumstances which occurred since the
original order was issued.
3. Motion to vacate default or vacate dismissal
If one party does not appear for a trial and wishes to challenge any order
resulting from that default, the remedy is to bring a motion to vacate the
default. A motion to vacate a default must show two elements, (a)
excusable default in missing the trial, and (b) a meritorious defense or cause
of action. There is no appeal from a default order. However, an order
resulting from a motion to vacate a default can be appealed.
4. Motion to reargue
A motion to reargue is similar to an appeal, in that it is an argument that the
trial court made a mistake. It differs from an appeal in that it is made before
the same judge which heard the case at trial. Needless to say, most
motions to reargue are denied. There is no appeal from a decision denying
reargument, and the motion to reargue does not extend the time to appeal
the original order. Since a motion to reargue alleges the court made a
mistake, this remedy is available only after a trial at which both sides were
present.
5. Motion to renew
A motion to renew is similar to a motion to reargue in that it is heard by the
same judge who heard the case at trial. A motion to renew alleges that a
new fact exists which was not presented to the court at trial. In order to
prevail, there must generally be a compelling reason why this new evidence
was not originally presented, and that this evidence would have resulted in a
different decision. Like a motion to reargue, a motion to renew may only be
brought after a trial at which both sides were present.
6. Vacating a consent order
To vacate a consent order, the party seeking to vacate the order must bring
a motion before the court where the case was heard. In order to prevail, the
party must show that the consent order was arrived at by fraud, duress,
undue influence, or some other extreme fact. There is no appeal from a
consent order. However, an order resulting from a motion to vacate a
consent order may be appealed.
7. Resettling an order
Settling an order has nothing to do with settling a case. Settling an order
should be read to mean the signing of an order by a judge. Sometimes a
judge will write his or her own orders. More often, a judge will write a
decision, or there will be a stipulation of settlement, either in writing or read
into the record in open court. In these instances, one side will prepare an
order for the judge to sign, giving the other side notice of the proposed
order. This order must mirror the courts decision or the agreement between
the parties. This is known as settling an order.
If an existing order has a mistake, such as an incorrect name, an arithmetic
mistake, or some other ministerial error, the proper remedy to submit a
new order for resettlement (i.e. resigning). Usually, resettlement is done by
way of motion.