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Author Topic: Final Order Received Need help  (Read 2341 times)

HelpingHands

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Final Order Received Need help
« on: Jan 04, 2007, 08:36:52 PM »
Hi Soc. I just got the final order from the case in Circuit court. To refresh you- mom is in Va, dad and child live in TN. Father awarded primary physical in Aug 2006 after mom found guilty of contempt and frustrating custody order, Mom appealed to circuit court. Trial heard Dec 06.

Final Order states Custody vested with father. Joint custody is not appropriate.....    I can post the entire order, if necessary.

Visitation schedule is very generous to mom.  To spare you reading 10 pages worth of Court order I will provide you with exact visitation text from the order. I am confused on the transportation responsibities.



2 VISITATION
a. Except under unusual circumstances, maintaining close ties with the non-custodial parent is in the child's best interests. Eichelberger v Eichelberger 2va app409,412,345 SE2d 10(1986) The father(*error in order-should state "mother") shall have the following visitation:

(1) Weekend Visitation: On any occasion on which the mother wishes to travel to Tn to pickup the child for a weekend visitation from Thursday at 5:00pm till  8:00pm on the day next preceding the start of the school week, if there is a holiday break from school not specifically provided for hereinafter; she may keep the child out of school for one day incident to such visitation, and she may exercise this visitation twice a month, provided that she give the father seven days notice of this proposed visitation.

(2) Summer vacation--child not in school. The mother may have one period of vacation in the summer when the child is not attending school of up to six weeks, which may be taken in two segments or a continuous period. The period of summer vacation will begin not earlier than one week after the regular school yr terminates and will conclude not later than one week before the regular school yr begins. The mother shall make her selection and notify the father of the dates of the summer visitation, in writing, no later than june 1 of each yr.

(4) Mother's day, Father's day: regardless of any schedule of visitation set forth herein, the child will be with the mother on mother's day weekend Likewise, the child will be with the father on father's day weekend from 5:00pm Friday until 8:00pm on Sunday.

(5) Christmas Holiday Season: The mother may have visitation with the child from noon on Dec 26 until noon on Jan 1, except for Christmas 2006, which shall be from Dec 21 to Dec 30, unless parties otherwise agree.

(6) martin Luther King Day(jan) and President's day(february) If the child is off from school in Jan and/or Feb on these days, the mother will have visitation with the child from Friday at 5:00 pm until 8:00pm on Monday or the day next preceeding the chiild's regularly scheduled school day.

(7)Easter. in Odd-numbered calendar years, the child will be with the mother from 2:00pm on Friday unil 8:00pm on Sunday. If the child has a spring or easter break from school, the mother will have visitation from 2:00pm on the day after school recesses until 8:00pm on the day before school reconvenes.

(8) Memorial Day: The mother shall have visitation from 5:00pm on the Friday before Memorial Day is observed until 8:00p, on the day Memorial day is observed.

(9) Labor Day: The mother shall have visitation from 5:00pm on the Friday before Labor Day is observed until 8:00pm on the day labor day is observed.

(10) Columbus Day.The mother shall have visitation from 5:00pm on the Friday before Columbus day is observed in October until 8:00pm on Monday.

(11) Thanksgiving: In odd numbered calendar years, the Mother shall have visitation from 2:00pm the day before Thanksgiving until 8:00 on the following Sunday. In even yrs the child will be with the father.

b telephone calls. When the children are with one party the other party shall have the right to talk to the children on the telephone between the hours of 6:00pm-8:00pm. Unless the parties agree to otherwise, the calls shall be of reasonable duration and be limited to no more than three calls per week of no longer duration than ten minutes each.

c. Notice and modification: The mother shall notify the father at least two days in advance that she will not be exercising a scheduled weekend visitation and one week in advance of any holiday visitation so that the father may make appropriate plans. The parties may agree to such additional periods of visitations as they deem advisable.

d, Pick up and Delivery. The parties will meet at a McDs Restauarnt just off the interestate in XX , Va or such other place as they agree to in writing to exchange the child for holiday and summer visitation. The transport for any weekend visitation shall be the sole reponsibility of the Mother.


e. Special Conditions
(1) Pursuant to Va code20-124.6 each parent is entitled to see all records of his children and discuss the children's situation with any school, medical, hospital, or otehr health care provider.

(2) Without the mutual consent of the parties, visitation may only be canceled by the custodial parent for medical reasons. If the custodial parent(mother) *( error in order) cancels a visitation for medical reasons, the father(*error in order) shall have a visitation time of his selection within the next two months equal to the period of visitation which was cancelled.

(3) Each party will give the other party the information necessary to contact him or her in the event of an emergency affecting the children.
 
3. Child Support: Given the mother's disabilities and the costs attendant to her traveling to Tennessee, no child support is ordered at this time.

4. Health Care:
a Father shall maintain health care coverage on the Mother*(error in order) and the children on his current health insurance policy or an equivalent policy, until further order of this court.

6 Transfer: This matter is hereby transferred to the court in XX, Tn, which exercises jurisdiction over child custody and support.

7. Guardian ad litem. The guardian ad litem is directed to file a DC Form40 for payment of her fees and expenses.

III. Statutory Notices
The Following Notice isprovided to the parties pursuant to section20-60.3 VA Code ANN:

A. A duty of support is owed by XX(mother) to the following dependant Child: XXX, DOB
B The following information is provided on each parent:
Mother XXX
Current address SSS
Residential telephone number 1231234

Father XXX
Current address XXX
residential phone number 1234567


Questions are:

1. Visitation states the mother can take the child out of school 1 day per visitation she wishes to exercise 2x per month with notice.

Legally, who will face the truancy board when the child misses more than the allowable amount set by the state(in TN it's 10 missed - non medical) if mother doesn't have the child in school on Fridays? Can this removal from school be denied?

2.  At one point (letter c and d addressing modification and pick up and delivery) it states mother and father to meet (at the 1/2 way point) for holiday and summer visitation, but then states that for any weekend visitation the mother is soley responsible for transporting child. I am confused about this. If you read further to the child support issue - where it states no child support is ordered due to mom driving to TN, it would appear that the judge is not ordering support because of mom's responsibility to travel to Tn. The only place mentioning TN is 'if mom wants visitations on other weekends', unless it is meaning that she will be responsible for 'all weekend visitations" including M-day, Col. Day, etc'-

In paragraph C- it states she has to provide notice if canceling any 'scheduled weekend visitation' . The optional visitations, aren't scheduled, right? So would that mean that the Memorial-day, Col-day, etc are actually being considered 'scheduled weekend visitations?
.
How do you interpret the driving reponsibility for those visitations? I don't want to be in contempt if we are supposed to be meeting 1/2 way and i am expecting her here at 5pm and I don't travel. I also don't want to make a habit of driving 1/2 way to cover my rear and let her off the hook for picking her up, if i am not supposed to be.

3. If the judge is actually meaning for the child to be exchanged at 8pm- 4 1/2 hours from our home(putting child into bed after midnight the night school begins), and to be exchanged at 5pm 4 1/2 hrs away- which would require an early removal from school for EACH of those breaks, how can this be changed to prevent all that disruption in her schooling and bedtime?

4. As you see, the judge ordered no support. Can this be changed to the minimum support allowed by law or is a material change required first?

5. The judge ordered the case transferred to TN jurisdiction. What do I need to do re: the order- do I need to take the order to the courthouse and register it ?

6. The order states that either party must file any objections within 10 days of receipt of the order. Is this the opportunity to file for clarification of the confusing drop-off/pick up issue and to correct the typos in the order- like 'father in place of Mother' and to take out Mother- in the health insurance part?

7.Is it possible that the mother can file objections and continue this even longer or is this truly 'the final order' on this particular issue? My understanding -through reading the appeals process in Va, stated that the order of the appeals/circuit court are final and can not be appealed again. What's the difference of appealing and filing an objection?

Sorry these are heavy questions but I don't know how else to ask them.

Thank you-


socrateaser

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RE: Final Order Received Need help
« Reply #1 on: Jan 04, 2007, 09:00:34 PM »
>Questions are:
>
>1. Visitation states the mother can take the child out of
>school 1 day per visitation she wishes to exercise 2x per
>month with notice.

At the moment, the typo of father instead of mother renders the entire order meaningless. You need to get that fixed ASAP.

>
>Legally, who will face the truancy board when the child misses
>more than the allowable amount set by the state(in TN it's 10
>missed - non medical) if mother doesn't have the child in
>school on Fridays? Can this removal from school be denied?

Your court order presumably protects both parents from any legal sanction by the authorities. However, the juvenile court might view taking the child from school as being illegal and therefore that the current order is invalid. But, until that occurs, and the court orders otherwise, both parents on safe ground.

>2.  At one point (letter c and d addressing modification and
>pick up and delivery) it states mother and father to meet (at
>the 1/2 way point) for holiday and summer visitation, but then
>states that for any weekend visitation the mother is soley
>responsible for transporting child. I am confused about this.
>If you read further to the child support issue - where it
>states no child support is ordered due to mom driving to TN,
>it would appear that the judge is not ordering support because
>of mom's responsibility to travel to Tn. The only place
>mentioning TN is 'if mom wants visitations on other weekends',
>unless it is meaning that she will be responsible for 'all
>weekend visitations" including M-day, Col. Day, etc'-
>
>In paragraph C- it states she has to provide notice if
>canceling any 'scheduled weekend visitation' . The optional
>visitations, aren't scheduled, right? So would that mean that
>the Memorial-day, Col-day, etc are actually being considered
>'scheduled weekend visitations?

I would say that any visit is reasonably subject to cancellation notice. But, it's vague, so if you want to know for sure you'll have to get a clarification. At the moment, the order is way messed up, so you could ask for clarification while you're having the father/mother thingy adjusted.

>How do you interpret the driving reponsibility for those
>visitations? I don't want to be in contempt if we are supposed
>to be meeting 1/2 way and i am expecting her here at 5pm and I
>don't travel. I also don't want to make a habit of driving 1/2
>way to cover my rear and let her off the hook for picking her
>up, if i am not supposed to be.

The court order expressly permits you to negotiate the transfer point in writing. I suggest that you try to do so now, before it becomes an issue. Send a letter expressing your interpretation of the order and that if she doesn't disagree, then you will go forward assuming she agrees (aka contract by silence, where a person would reasonably not remain silent).

>3. If the judge is actually meaning for the child to be
>exchanged at 8pm- 4 1/2 hours from our home(putting child into
>bed after midnight the night school begins), and to be
>exchanged at 5pm 4 1/2 hrs away- which would require an early
>removal from school for EACH of those breaks, how can this be
>changed to prevent all that disruption in her schooling and
>bedtime?

By agreement between the parties. See above.

>
>4. As you see, the judge ordered no support. Can this be
>changed to the minimum support allowed by law or is a material
>change required first?

Change required.

>
>5. The judge ordered the case transferred to TN jurisdiction.
>What do I need to do re: the order- do I need to take the
>order to the courthouse and register it ?

Nope. Although the judge's wording is a bit weird. He has no authority to transfer a case between two states. His jurisdiction ends at the phyiscal borders of the state. All he can do is relinquish jurisdiction in favor of the child's home state. But, he can't do that until a new issue arises, because if he relinquishes jurisdiction now, then he can't make the order just made. I think your judge is a little weak on his civil procedure rules.

>6. The order states that either party must file any objections
>within 10 days of receipt of the order. Is this the
>opportunity to file for clarification of the confusing
>drop-off/pick up issue and to correct the typos in the order-
>like 'father in place of Mother' and to take out Mother- in
>the health insurance part?

Yes, you can ask for clarification. Be respectful in your requests -- the big issue is the typo. Everything else is sort of minimal.
>
>7.Is it possible that the mother can file objections and
>continue this even longer or is this truly 'the final order'
>on this particular issue? My understanding -through reading
>the appeals process in Va, stated that the order of the
>appeals/circuit court are final and can not be appealed again.
>What's the difference of appealing and filing an objection?

Of course, she can file objetions, but that doesn't mean the judge will grant any of them. Other parent can also appeal to a higher court, but meanwhile the current order would be valid and enforceable.

HelpingHands

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RE: Final Order Received Need help
« Reply #2 on: Jan 06, 2007, 06:47:01 AM »
Alright Soc-

I've Emailed my attorney and left a message, but no response yet about clarification of the order and the typos.  I don't want to sit on my hands too long and it be too late to file the corrections with the court.

I can assure you the mother will not agree to anything that would benefit me(ie: her the traveling the whole distance not just  1/2 way) so her interpretation will always be to benefit her. The past 7 yrs have been about twisting the order , even contempting herself to not follow any order of the courts,and do whatever it takes to benefit her.

1. If my attorney does not respond or says he won't  file the clarifications, typo issues, and objection... how do I word the petition and address the court so that this order is corrected in a timely manner?

2. Without negotiating with the mother(because she will NEVER agree to anything I propose, that I can promise you) on the transportation issue, reading the order as it is- as an objective person- do you read it to say that the Memorial Day,Columbus day, MLK day, etc visitations are considered 'any weekend visitation' for purposes of her traveling the entire way, or is are they considered  'holiday' visitations for purposes of meeting half way?   I doubt the matterwould be clarified before MLK day through the courts and I don't want to set a pattern of meeting half way, because that would simply have her believe this is the way it's 'supposed' to be, when/if in fact it's not. Financially, I just can not afford to does this, nor can I agree to allowing my daughter and other children to miss school to meet 1/2 way every month there falls a weekend one day off school break.

3. To object to our daughter's removal from school on Fridays, to begin a weekend visitation on Thursday, would that open the entire case back up to litigation or does the judge simply review the objections and post his ruling on whether or not he removes the objected verbage?  This question would also apply to the removal of 'mother' in the health care coverage portion of the order.

4. I don't understand the objection to anything in this order versus an appeals process. If the mother 'objects' to the full custody/ non joint custody, is that a simple objection or is that an objection requesting an appeal to a higher court- in this case- the Supreme Court or would it need to be specified as an objection or appeal??

I just want this taken care of before it becomes a major problem.

Thank you again Soc -

socrateaser

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RE: Final Order Received Need help
« Reply #3 on: Jan 06, 2007, 01:25:16 PM »
>1. If my attorney does not respond or says he won't  file the
>clarifications, typo issues, and objection... how do I word
>the petition and address the court so that this order is
>corrected in a timely manner?

You cannot contact the court directly until you discharge your attorney of record and place yourself on the record as in propria persona (self represented).

If your attorney won't fix the problem, voluntarily, then you should instruct him/her that if he/she refuses, you will have no choice but to place whatever remains of your advance for legal services in dispute, discharge him/her from further serivce, and then complain to the state regulatory agency about his/her competence to practice law.

You're the boss, not your attorney. Be nice, but insist on what you want, if what you want is reasonable.

>
>2. Without negotiating with the mother(because she will NEVER
>agree to anything I propose, that I can promise you) on the
>transportation issue, reading the order as it is- as an
>objective person- do you read it to say that the Memorial
>Day,Columbus day, MLK day, etc visitations are considered
>'any weekend visitation' for purposes of her traveling
>the entire way, or is are they considered  'holiday'
>visitations for purposes of meeting half way?

The order is to ambigous for me to answer. You'll need the court to clarify -- unless your attorney can do so, based on his/her local knowledge.

>3. To object to our daughter's removal from school on Fridays,
>to begin a weekend visitation on Thursday, would that open the
>entire case back up to litigation or does the judge simply
>review the objections and post his ruling on whether or not he
>removes the objected verbage?  This question would also apply
>to the removal of 'mother' in the health care coverage portion
>of the order.

Please don't write complex factually intertwined questions. They are too difficult to follow quickly. Write all your facts up front and then ask direct questions.

The judge will consider the objections, and either allow them or deny them. The result will be the order. There will be no further litigation, other than possibly a motion hearing, if things get really knarly.

>
>4. I don't understand the objection to anything in this order
>versus an appeals process. If the mother 'objects' to the full
>custody/ non joint custody, is that a simple objection or is
>that an objection requesting an appeal to a higher court- in
>this case- the Supreme Court or would it need to be specified
>as an objection or appeal??

An objection to the final judgment/order (aka motion for reconsideration), is based upon new evidence not ascertainable through diligent use of the tools of discovery or at trial, or based upon an claim of mistake of fact or law, or clerical/calculation error. This permits the trial judge to deal with obvious problems not reasonably subject to dispute, or which question the judge's discretion or legal analysis.

An appeal is a request that a higher court reconsider the judgment based on the facts ascertained prior thereto, in consideration of the judge's misapplication of fact or law or abuse of discretion.

The short version is that if you think that there is something obvious that the trial judge can fix without annoying the judge, or because some startling new evidence has suddenly appeared, then you object. If you don't, then you appeal.

HelpingHands

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RE: Final Order Received Need help
« Reply #4 on: Jan 06, 2007, 06:14:37 PM »
Thank you and I apologize. I will work with my attorney to get him to fix the errors in the order. Hopefully, things run smoothly.


 

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