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LAW OFFICE OF
SUSAN CASTLETON RYAN, P.C.
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The Law Office of Susan Castleton Ryan, P.C., wishes all
of you and your families a happy and healthy New Year.
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SERVICE OF MOTIONS IN THE PROBATE COURT
There are specific rules for each court
within the Commonwealth of Massachusetts, and the probate court is no
exception. If a matter relates to domestic relations, that is
to divorce, separate support, paternity, and/or custody support and
visitation of children, the Rules of Domestic Procedure must be
followed. Matters involving adoptions, guardianships, and other
probate matters, the General Rules of the Probate Court and Uniform
Practices of the Probate Courts apply. Attorneys and Pro Se
litigants alike must follow these rules, and complete service of any
pleadings, (motions, complaints, affidavits) as specifically outlined
in the rules. This is especially important when a motion
hearing is scheduled, as the opposing party is entitled to receive
sufficient notice in advance of the hearing, to enable him/her or
his/her attorney to prepare for the hearing.
Service, that is the delivery of the
motion, complaint, or other document, may need to be given "in
hand," by a disinterested person (constable or sheriff), or as
directed by the Court. While some courts allow service by
electronic transmittal and/or facsimile, such service is not
acceptable in the probate court unless the parties/attorneys agree to
such service, and/or the Court orders such delivery. Usually in
hand service is required for hearings scheduled within seven to ten
days of the date of service, whereas first class mail is acceptable
service for a hearing ten days later. In the event a Party has
presented an ex-parte motion to the Court, the Court may issue an
order with specific requirements as to when, where, and how service
is to be completed, as well as a date and time, and location of a
hearing when all Parties and counsel must appear. Note that a
Proposed Order must accompany any motions filed in the Plymouth
Probate & Family Court, ex-parte or otherwise. All courts
require a Notice of Hearing date, unless specifically ordered by the
Court, and a Certificate of Service, signed under the pains and
penalties of perjury, as to who was served, when, and the type of
service performed.
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EMERGENCY MOTIONS AND HEARINGS
BEFORE THE COURT
Sometimes situations arise that
require an immediate hearing before the Court. These include
but are not limited to abuse and/or neglect of a child, withdrawal of
monies from joint accounts by a spouse or co-owner, failure to return
a child to the other parent, and/or removal of a child from the
Commonwealth without the other parent's permission and/or a Court
order. There may be numerous other reasons to seek an emergency
order, but failure to pay child support, or comply with
orders/judgments of the Court may not rise to an emergency situation.
If there is an emergency, it is
possible to appear in front of the judge assigned to the case for an
ex-parte hearing, and/or to obtain a short order of notice for a
hearing within a short period of time. Ex-parte means without
notice to the other side, denying that Party the opportunity to be
heard. There are important and legitimate reasons for having
such a hearing, particularly if there is a threat to any child(ren),
and/or liquidation or dissipation of assets that may never be
recouped. In order to assist the Court in determining whether
or not a true emergency exists, anyone seeking an emergency ex-parte
order must complete a detailed Affidavit in support of the emergency
motion. Plymouth County also requires that a motion be filed to
waive notice of the hearing, in addition to the motion for a short
order of notice. A short order of notice is a request to the
Court to schedule a hearing with all parties and attorneys present as
soon as the court calendar allows. Depending on the nature of
the request/motion, the Court may enter temporary orders until
the date of the hearing. If there is a hearing, it is often only
to schedule the hearing, and not to make a ruling on the relief
requested. Therefore, a second hearing is almost always
scheduled, with instructions for service to the other side and/or
attorney for the opposing Party.
Often the initial, ex-parte
hearing is heard by a judge other than the one assigned to the
case. He/She may be reluctant to hear the emergency motion if
it is really not an emergency, and/or can be addressed in the regular
course of business, that is, scheduling it for the assigned judge's
normal motion day. Judges will frequently ask if notice was
given by telephone, facsimile, and/or email, even though it is not
required by the rules.
It is important to remember
that most probate courts require all emergency motions be filed
before 9:30 AM for the morning session, and by 1:30 PM for the
afternoon session. Failure to adhere to this and other local
rules may prevent even a legitimate emergency motion from proceeding
on the day it is filed. If there is a question as to what each
court requires, information is available in the Register's office or
on the website for the particular Court.
Any issue related to a divorce,
paternity, estate or other matter is important to the litigants, but
may not be an emergency. The clerks in the probate court's
Registry office are not attorneys, and are not allowed to give legal
advice. Litigants representing themselves, that is Pro Se,
should consult an attorney, including any available Lawyer of the
Day, to review whether or not their request is in fact an
emergency. Once the motions, affidavit, and other documents are
filed, the judge's clerk/judicial case manager may determine that the
judge will not hear the motion that day. If that occurs, it
will be necessary to give notice pursuant to the relevant rules of
court.
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DID YOU KNOW. . . ?
Important
facts about this office:
1.
That Attorney Susan Castleton Ryan has been practicing since December
1991, focusing her practice on divorce, family law, and estate
administration?
2.
That Attorney Ryan's two assistants, Paula and Rachel, have
been with Attorney Ryan a combined total of 15 years?
3.
That each case is managed by either Paula or Rachel with Attorney
Ryan to insure accessibility with the office, prompt response to
questions and concerns, and a liason to the court?
4.
That regular staff meetings and education development insures
everyone on the "team" is up to date on each and every
case?
5.
That anyone of the team is accessible by email or phone, although
clients are always welcome to visit the office in person?
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Questions? Comments?
Feel free to visit our website or email the
office.
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If anyone has a topic that would be of general interest, please do not
hesitate to contact the office and let us know what items would be of
general interest to the readers of this newsletter.
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This
newsletter is designed to keep you up-to-date with changes in the
law. For help with these or any other legal issues, please call
our firm today.
The
information in this newsletter is intended solely for your
information . It does not constitute legal advice, and it should
not be relied on without a discussion of your specific situation with
an attorney.
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