Can she file?

[dipper]

Sorry to be posting so much but things seem to get more frustrating in our case by the day.  As I have stated before, I am not an attorney and have no law experience but was asked to draw up and agreement between my son, his ex-gf, and my husband and I about custody of our granddaughter.   I only spoke with the mother concerning dates/exchanges to make sure it was drawn as she agreed to.   She told me that we would have every Saturday - Tuesday.  Knowing that she may want a weekend, I did suggest that we take every third week - and she get the entire 4th week of the month.  This was based upon our Saturday exchanges - 3rd Saturday of the month means that begins our week. 


I presented her and my son vsiual calendars clearly marked as to what that would look like for the months of November and December on October 25th.  On Thanksgiving, when we picked up my granddaughter, she started arguing with my son.   She says that since December has 5 weeks, we get her the week of the 13th, not the 20th as outlined on the calendar.  My son stated firmly that it is the third exchange that counts.  We will be picking up my granddaughter in a few hours and I do not consider this the first exchange of December - but the last of November.


Problem is - it is a little mirky in the agreeement.  The agreement says 'third week' of the month.  "The child will be picked up on the regular Saturday exchange and returned on the next Saturday exchange (4th Saturday of the month)."   I feel since it specifically states the baby will be returned on the 4th Saturday of the month, we have a good chance of keeping this. 


However, the ex-gf's mother made it clear that they will be going to the judge!! Can she actually file for clarification when this is already set for it's first court date and the judge only signed off on what we presented - we were not even in court? It is a court order, but not one the court drew up.


We want to keep our week for several reasons - everyone has known that it was the set-up for over a month.    It is clearly outlined in the agreement when child goes back to her, and therefore, infers that pick-up is the third Saturday of the month.   Also, my son and I will have time off that week.  His ex-gf does not work, so she does not 'need' these specific days to spend with child.   And...my husband and daughter's birthdays are during that week and we want the child as part of our celebrations.

[ocean]

Yes she can file, anyone can file for just about anything. She probably will not get a court date in Dec. Between holidays and you already have a court date. If this involves Christmas, maybe a sympathetic judge will get it on the calendar but probably not. So....
Who has child before that? If you have child then keep him and let her file. If she does, go and try to get child with police as witness and see if she will allow child to come. If not, have police fill out report stating my refused to give back child and you file in court.
When you go back to court, most people have what day the weekend starts on and what happens when there is a 5th weekend.
In the future, walk away and do not say anything to mom at exchanges, simple "email me about this later, I am not discussing this in front of xx". Then ignore, no matter what she says....ignore, ignore ...and smile. You may want to look into if you can legally record exchanges or at least audio tape it with you phone in pocket.

[dipper]

Thank you.  My son did well the other day, he was polite but firm with her - never lost his temper.  In fact, he got back in the van when her mother started saying how they would take it to the judge and was getting back out of her car.   The mother was very rude that day - to my son and my daughter.  As soon as we left, his ex-gf was calling demanding he change the weeks.   


I can honestly say we have never brought any 'business' concerning visitations up during exchanges.  We like to get the child and get in the car.  Many times they bring up future visitations and wanting to change things.   

[dipper]

Oh, and as to your question as to who has the child prior to our week, she has the child from Tuesday evening to Saturday morning.  If she tries to force us to take the week earlier (13th), we will still go to the exchange spot on Tuesday, the 16th.  If she does not show up - saying it is our full week, then I intend to keep the child until the 27th as we believe we are correct in 20-27th being our week.


I had typed up a letter stating that the week was correct due to:   
* the 20th is the third exchange of the month
*  the agreement clearly states that the child will not be returned to her until the 4th Saturday of the month, which is the 27th for December. 
****I noted that under her impression of the order we would be picking child up on 13th and not returning her until the 27th, which we are willing to abide by if that is her wish.


Should we try to explain our position in writing?  Talking with her only leads to arguements.

[ocean]

Yeah, you can just email her that you will be following he current order which is xyz...then see if she can get it in front of judge before than but prob not..is Christmas defined clearly?

[dipper]

Christmas does spell out that we have the child from 10:00 a.m. Christmas Eve until 11:00 a.m. Christmas morning and then she goes to the mom.   It will be our week so she will have to return the child - following the Thanksgiving schedule, that would be 10:00 a.m. the next morning she would come back to us. 


She doesn't do email so I think we will have to send our position on the week by regular mail.

[ocean]

Text her? Some people use a communication book, goes back and forth with child. Both parents write in it (appointments, school things, activities, doctors, or asking for changes in schedule). This way it is in writing and back and forth. If you do this, I would copy her replies each time in case the book gets "lost". If you send it by mail, have her sign for letter. Proves she got it.

[dipper]

Good idea.   Ironic that she has fought everything in the agreement and is threatening legal action to have what we consider our week this month.  But, called today and is thinking she will go in the hospital tomorrow or Tuesday for her CF.  She wants us to disregard the agreement and allow her mother to keep the child during what would be her visitation.  My son offered, instead, that the mother can have the child part of that time in order to take her to visit her mom in the hospital.   

[MixedBag]

Welcome to the world of "writing something you think is clear" only to learn that the other side STILL interprets it differently.

I went to court over a clarification -- in the order it said weekends started at XX time on Friday.  Dad denied a weekend because Friday was the last day of October and Sat/Sun was November.  I filed for make up time, he lost and had to give me a makeup weekend.

Small victory....but maybe that example will help you.

Add exchange times and days of the week.

[dipper]

I looked over the agreement, it states that we return the child on the "fourth Saturday of the month".  It also states that the mother has custody of the child from the "fourth weekend of the month" until the following Saturday.   That means the 27th for December.


And we got hit again today......my son was served with papers for custody and child support.  She had said she did not want child support, but now she wants everything - the child and money.   

[tigger]

I thought he had filed for custody? . . . .

[dipper]

He had filed for custody after she began threatening to take the child completely (sole custody).  We were hoping to amend that to primary custodial parent as we truly believe it is in child's best interest to have access to both families.  However, every week it is something new with her.  last week, she wanted us to have a few hours Thanksgiving and she have all night Christmas day.  My son stood his ground and she told him on Thanksgiving day that we could keep the baby all night.  But, then she said we do not have the baby Christmas week.  She and her mother said they are going to file over that......


Then today papers for custody and child support.  We have not had any peace since she moved out.  Within two days the threats and demands started.   We have the child half the time and provide for her completely here.  She has her half the time, lives with her mom (so no big bills) and gets WIC to feed her.   

[MixedBag]

Calm down, it's a place for her to legally bargain from.

If she never files something to ask for custody -- that could backfire on her side as well.