Family court proceedings can be stressful and overwhelming, especially if you are unfamiliar with the legal process.
If you need more time to prepare for your case or to gather additional evidence, you can get a continuance.
A continuance is a postponement of a court hearing or trial to a later date. To obtain a continuance, you must file a “Motion for Continuance” and a “Notice of Hearing” with the court.
The process to obtain a continuance varies from state to state. If you are unfamiliar with the rule in your state, call your local county clerk, and they can advise you of the local rules.
The following is a step-by-step guide on how to get a continuance in family court.
1. Determine the Reason for Your Request
Before you request a continuance, you must have a valid reason for your request. In my experience, a judge is like to grant a continuance if one of the following circumstances arises:
Unavailability of a party or a witness
If a party or key witness cannot attend the hearing due to a scheduling conflict or an emergency, a continuance may be granted.
Lack of preparation
A continuance may be granted if a party is not ready to proceed with the hearing due to a lack of time to prepare. You will probably get one continuance for this reason. If you have already requested a continuance in the past because you needed additional time to prepare, the judge will likely refuse your request for a continuance.
Illness
If a party, witness, or attorney is too ill to participate in the hearing, a continuance may be granted.
New evidence: If new evidence has emerged that is important to the case, a continuance may be granted to allow the parties time to review and respond to the evidence.
Settlement negotiations
If the parties are engaged in settlement negotiations, a continuance may be granted to allow them time to reach an agreement.
Time to hire an attorney
A continuance may be granted if a party needs time to hire an attorney or a new one.
Unavailability of a witness
If one of your witnesses is unavailable on the date of the scheduled hearing, a continuance may be granted.
2. Draft and File a Motion for Continuance
You must file a written motion to request a continuance with the court. A motion for continuance should include the following:
- Your name and contact information
- The case name and number
- The reason you are requesting the continuance
- A request for a specific continuance date
- A statement that the continuance is for a valid reason and not just for harassment and delay.
- An affidavit. Many states require an affidavit signed by a party or attorney, swearing under oath the facts about why the continuance is needed. (Not all states require this. (Check your local court rules)
- If the motion for continuance is being filed within 30 days of the hearing date, you will likely be required to discuss the motion with the other party and state to the court their position on the motion.
It is essential to file your motion for continuance as soon as possible to give the court enough time to consider your request and make a ruling.
3. Prepare a Notice of Hearing
In most states, the court will not automatically rule on your motion. Upon filing the motion, you should call the court clerk and ask for an available date and time for the judge to rule on the motion.
Once a date and time are obtained, you must file a “Notice of Hearing” with the court and serve a copy of the notice and motion for continuance on the other party.
Check your local court on this rule. For example, in Missouri, the motion for continuance and the notice of hearing must be filed and served at least five days before it is heard and argued. See Rule 44.01(d).
4. Serve the Motion and Notice of Hearing on the Other Party
Once you have filed your motion for continuance and notice of hearing, you must serve a copy on the other party. Service means delivering a copy of the motion to the other party in a manner that is allowed by the court. This may include:
- Personal delivery
- Mail delivery
- Electronic delivery
It is vital to make sure that the other party receives a copy of the motion in a timely manner to ensure that they have the opportunity to respond to your request.
5. Attend the Hearing
After you have filed and served your motion for continuance, the court will schedule a hearing. You must attend the hearing to present your request to the court.
Some judges will now do these hearings via Zoom or video conference call. It is crucial to be prepared to explain your reason for requesting a continuance and to answer any questions the court may have.
6. Be Prepared for the Court’s Ruling
The court will rule on your motion for a continuance during the hearing or shortly after. The court may grant your request, deny your request, or grant a continuance for a different date.
If the court grants your request for a continuance, you should be prepared to attend the next court hearing on the new date. If the court denies your request, you should be ready to proceed with the case on the original hearing date.
FAQs
Q: What happens if my request for a continuance is denied?
A: If your request for a continuance is denied, you must attend the original court date as scheduled. If you cannot attend, the court may take adverse actions against you, such as default judgment or contempt of court.
Q: Can I request a continuance by phone?
A: No, you cannot request a continuance by phone. You must file a written request with the court.