May a Responsive Declaration Make A Request For Affirmative Relief?


May a Responsive Declaration make a request for affirmative relief?




It is not unusual to have a Responsive Declaration ask for affirmative relief in response to a Request for Order. This happens both in cases of an initial Request for Order, or in a Request for Order for modification of an earlier order.


Family Code, §213, provides that: (a) In a hearing on an order to show cause, or on a modification thereof, or in a hearing on a motion, other than for contempt, the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court. (b) This section applies in any of the following proceedings: (1) A proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties. (2) A proceeding relating to a protective order described in Section 6218. (3) Any other proceeding in which there is at issue the visitation, custody, or support of a child.


Imagine a situation where father wants to have greater visitation with his children and files a Request for Order asking for more parental timesharing days.


In the Responsive Declaration, mother requests that (1) father, during his visitation timesharing, keep her informed of where he is taking the children; (2) the court outline a specific holiday timeshare plan; (3) father maintain a life insurance policy which would insure child support for the balance of the time period for which child support is due; (4) for an increase in child support; and (5) for an order that father pay a percentage of any income he earns over $5,000 per month. Neither party files any points and authorities.


The question for the court will be whether or not the mother’s requests are issues raised in the moving papers.


The father’s request is one of visitation. It has long been held that visitation is a form of custody. See Perry v. Superior Court, 108 C.A.3d 480 (1980). Thus, it would seem that the mother’s request in regards to knowing where the children are during their time with the father and the establishment of a holiday schedule would be properly before the court.


However, the request by the mother for both an increase in child support and for the father to maintain a life insurance policy to assure her receipt of child support would not be appropriately before the court. The mother would need to file her own request for a court hearing for this affirmative relief sought.

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