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Author Topic: Advice needed please on responding to Court Motion  (Read 16585 times)

Heston

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Advice needed please on responding to Court Motion
« on: Apr 02, 2011, 10:11:53 AM »
Hi, I've posted before on the same subject but this is a new development, so under a separate heading.  I already typed this and hit post, but it didn't go thru, so if for any reason a simlar post appears later, my apologies in advance!

The current situation is that I have joint physical and legal custody but my child's mother has residential custody.  The current CO was created specifically to deal with previous problems.  It is set up so if the mother abides by the rules in the CO, the parental exchanges, etc, will go more smoothly and be less problematic for my child.  It's a CO that was painstaking and involved a lot of thought and effort and aimed specifically towards the wellbeing of my child.

The mother has largely disregarded the major points set out in the CO.  Always late, very hostile.  I could go on....

I have masses of emails and other proof of flagrant disregard for the CO and it's taken me a while to gather it all together and categorize it.  There are so many points that have been breached.  I intended filing a complaint to the court for contempt.

Before I could do it, the mother has filed a motion.  And this is to get things court ordered in reverse of what the current CO says.  Basically, the mother is asking for the total reverse of what's in the CO.  So, transportation would be the total opposite of what's in the CO now.  And it's what the mother has been doing anyway, with her blatant and continual disregard of the CO.

The mother has also prevented me from seeing my child many, many times.  If I respond only to the current Motion lodged by the mother, I am not sure I will get the opportunity to bring this up.  Preventing me from seeing my child is even more serious than the disregard of the conditions of drop off, etc.  But the current Motion doesn't touch on this subject, naturally, so I may be unable to address it.

I wondered if anyone knows whether it's legally OK to lodge a motion for contempt.  And a separate motion to address the issues in the motion started by my child's mother.  If it is possible to do this, I could address the frequent lateness, the denial of parental time, the failure to respond to CO email comms regarding visitation, etc, etc in a motion for contempt.

If I can only respond to the points in the current Motion, I fear the mother will get away with all of her contempt for the current CO, and possibly even get her proposals put into a new CO.

It would be a crying shame if she was allowed to disregard the current CO, consistently since implementation, and then approach the courts and be granted a new CO, granting her requests, because it would in effect be condoning all she has been doing.

I realize judges don't take the time to read through lots of stuff.  I may have to represent myself, so would sure appreciate advice or suggestions from anyone else that has been in a similar situation.

Thanks


ocean

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Re: Advice needed please on responding to Court Motion
« Reply #1 on: Apr 02, 2011, 11:27:17 AM »
You can put in a counter motion.... But not sure what to add... maybe something like "father requests the following language to be added to the current court order as mother has broke the current order multiple times. Father has filed contempt of court papers to deal with the numerous attempts by mother to limit the time child spends with father." Then list the current issues with more ways to combat her antics. AND add consequences for mom if she does not follow them. (and that to both set up papers).

File contempt papers first...then counter motion...they may put in all together and have mom face it all...

From this point forward, follow that court order to a "T". Go to the meeting place, if she is not there, get proof you were there, and file. Drop off child at court ordered time and not mothers wishes. Stick to order. If she misses visit do the same thing- get police reports for missed visits.

Heston

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Re: Advice needed please on responding to Court Motion
« Reply #2 on: Apr 03, 2011, 03:10:12 AM »
Thanks for those suggestions.  I've been working on a draft counter motion.  I will do the contempt motion for sure, before submitting the counter motion.  It's lack of knowledge on the ways to do things that's an issue too.  The other side submits a motion which is given a date and time for the hearing.  Am guessing if I submit a counter motion in response, it gets dealt with at the same hearing.  The other side has put a 2 hour limit on the hearing, most probably so I don't have much time to respond.  Will ask for sufficient time and for the 2 restriction to be lifted.

I guess the language of the amended Court Order gets hashed out behind the scenes, after the judgment is made.  I know I have a good case and a ton of evidence to back up all my claims, it's just a matter of presenting it right.  I've spent so much on court cases, caused by previous contempt of court orders, that this time I have to do it myself. 

I am not sure if all States allow a non lawyer to file a motion.  Something I need to check out....

Heston

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Re: Advice needed please on responding to Court Motion
« Reply #3 on: Jun 06, 2011, 03:40:48 AM »
I've prepared a Counter Motion but I would appreciate some advice, since I am unable to enlist the help of a lawyer at this time.
 
Should the Counter Motion only address the issues raised in the Motion the BM has filed?  She has asked for the reverse of what is in the current agreed order on several points.
I've got it ready to file, but I added a few extra points, such as it being ordered that neither party can record phone conversations between the child and the other parent, and that upon the death of one parent, custody is automatically awarded to the surviving parent.  My logic behind adding a few other points, is that I want them to be "throways".  I HAVE to win on all the points the BM has raised because she is trying to reverse what is in the current order and the current order was created in the best interests of the child.  But no one gets to win on every point, so I thought I could agree to withdraw some of the other points raised.  But what I need to know is, is it legally acceptable for me to add a few extra points of my own, asking the court to order a few extra things?
 
I have also prepared a Motion for Contempt, in which I am raising all the issues the BM has been guilty of disregarding.  Many of these are issues which she is trying to reverse.  So in fact she disregarded the current order and just wants the court to sanction her misbehavior by ordering things are done her way.  I have to show this in the best way possible.
 
I need to file both motions today if possible and if not, tomorrow. Any help or suggestions would be much appreciated. 
 
Thanks
Heston

Simplydad

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Re: Advice needed please on responding to Court Motion
« Reply #4 on: Jun 06, 2011, 06:35:17 AM »
When you file your counter motion you will need to cover everything that you want addressed by the courts.  If you do not include it in the motion it will not be addressed at all.
 
I am not saying that this is the case but logically speaking I think that they will deal with the contempt motion first because it may be the more pressing matter.  Once you deal with the contempt motions and she is found in comtempt it almost makes her motion non-existent because her true intent will be shown.


Giggles

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Re: Advice needed please on responding to Court Motion
« Reply #5 on: Jun 06, 2011, 07:12:18 AM »

Before I could do it, the mother has filed a motion.  And this is to get things court ordered in reverse of what the current CO says.  Basically, the mother is asking for the total reverse of what's in the CO.  So, transportation would be the total opposite of what's in the CO now.  And it's what the mother has been doing anyway, with her blatant and continual disregard of the CO.


 
I read the response in the other thread from either Mixed or Kitty...not sure which...but I agree with them...what is her "change of circumstance" for filing the motion?  If she doesn't have one, then simply file for denial of motion based on no change of circumstance.  Also do file your contempt and from here on out, each time she violates the order you need to file another.  After so many, you then need to request FULLY CUSTODY with perhaps supervised visitation to the BM?
 
Basically, if she doesn't have a strong change in circumstance...then it should be denied.
Now I'm living....Just another day in Paradise!!

Heston

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Re: Advice needed please on responding to Court Motion
« Reply #6 on: Jun 06, 2011, 09:52:54 AM »
Thanks giggles and simplydad for your responses.

I was hoping the contempt motion would make the court realize what is going on.  The BM has simply done as she pleased but is now trying to get what she wants court ordered but without any change in circumstances on her part.  The reason cited by the BM for a change in dop offs, (i.e she no longer wants to bring the child to me, but wants me to collect the child from her), is "timeliness"!  Whoever drives in Friday rush hour traffic will face the same problems, yet the BM acts like there is more chance of a timely drop off if I do the driving.  The BM has a hidden agenda for wanting the reverse on this issue and there's a hidden agenda behind most of the points the BM wants reversed.

I can't mention the hidden agenda to the court as it would be hearsay, but am hoping that at least if the court sees the BM's contempt and then the motion to change things to fit the BM's contempt, that it will have the desired effect.

So with the Counter Motion, should I change it to mention that I wish the BM's motion to be denied based on no change in circumstances or should that be the argument used in court?
 
Oh yes, the BM's attorney made sure I received a copy of her motion after the date for a response had come and gone.  I requested and got an extension of time for the hearing.  Am hoping they allow me to submit the motions out of time too.

ocean

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Re: Advice needed please on responding to Court Motion
« Reply #7 on: Jun 06, 2011, 06:42:45 PM »
I would try and get it thrown out of court first. Go for that without all the other stuff. IF they allow and the judge rules that it stays ..then you can answer each one. At that point you can add a modification paper to include what else you want to deal with in court plus what you want to stay the same.

thomkirk

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Re: Advice needed please on responding to Court Motion
« Reply #8 on: Jun 08, 2011, 10:58:10 PM »
Sounds like you've needed to get your ex back in front of the judge for some time.  I'd say now's as good a time as any. 

In times past, I've used the Answer and Counterclaim (one document) with great success.  Basically, it's one document that does two things.  1)  Answer:  You deny everything your ex says in her claim.  2)  Treat your Counterclaim as a affidavit, stating your charges for contempt. Then based upon your Counterclaim, file your Motion for Contempt.  Additionally, based on your ex's history of behavior, you should also Motion the Court for "Remedy Clauses" in your next order.   

Tom

Heston

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Re: Advice needed please on responding to Court Motion
« Reply #9 on: Jul 05, 2011, 05:03:39 PM »

I would try and get it thrown out of court first. Go for that without all the other stuff. IF they allow and the judge rules that it stays ..then you can answer each one. At that point you can add a modification paper to include what else you want to deal with in court plus what you want to stay the same.


Thanks Ocean,
 
I filed a counter motion and a contempt motion.  On the counter motion I asked that the points BM wants to change, remain the same as in the current order and gave some reasons, but not too many, as I would want to present reasons at the hearing.  I filed a contempt motion showing all the issues BM is in contempt of, which include the very items she is trying to change in her motion.  The court has scheduled the contempt motion hearing for a week after the counter motion, which is not helpful.  I have requested mediation re the first hearing on the motion and counter motion.  I am representing myself.  The court says I have to attend the first hearing and in the afternoon of that day, mediation at the court is scheduled to take place.  I am not sure how this will play out.  I am concerned that the BMs lawyer will try and get the court to deal with the issues at the first hearing, before mediation.  BMs lawyer also knows that once the contempt hearing takes place a week later, it will shed a new light on the items the BM wants to change, as she is actually asking for changes that will in effect condone her contempt.  She has not followed the order on the points she is asking to change.  Their only hope of getting the changes they want is to get them made before mediation and before the contempt hearing.  I am not sure what I should do when I attend the hearing next week, to ensure the BM does not get her changes agreed by the court.

The current order was carefully drawn up to protect my daughter.  BM wants it changed.  She has her own agenda for the changes.  But unfortunately, I can't draw this to the attention of the court as it would be regarded as hearsay or opinion.  I can only argue it on facts and the bests interests of my child.
 
So, should I appear at the hearing and ask that the motion is thrown out?  What would be a valid reason for this request?  Should I say the current order was carefully drawn up in the best interests of the child and that it does not need changing?  And that the forthcoming contempt motion due to be heard one week later addresses those issues and more, whereby the BM has been in contempt of the very points she wants to change (and more) ?  Does the court have a modification paper?  Or do I create my own?  BTW in my counter motion I have stated that the items BM wants to change should remain the same and given logical reasons in the motion.  Would I still need a modification paper?

 

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