A Big Mess

[alamero]

Hello Soc:

Without getting into the last 9 years of my life, I humbly seek your advice.

My husband (pretending to be CP to give my kids to his mother) told our judge during the initial hearing that he had sole custody of our kids--then he had to backpedal in front of the same judge when the GAL asked him at the 1st continuance (he said that the children live between his and his mother's apt in the same bldg, but all of their posessions are in his mom's place).

The investigator's report (which recommended that the court return the children to me) quoted my husband's admission that he, his mom, and one of his aunts had reported me to CPS on numerous occasions regarding my child (from a previous relationship)...but I didn't learn about this until the investigator completed her report.

After our last continuance (02/12/04), my mom-in-law read what the children's psychologist quoted from one of my children, in her evaluation. Sometime within 5 days of the last court date, she called the psychologist and threatened her...because my mom-in-law didn't give HER permission to talk to my child.

I convinced the psychologist to continue working with my children, but I called CPS, looking for assistance or advice. They said that they can't do anything unless the psychologist quits, knowing that the children need continued therapy, and contacts CPS to relate my mom-in-law's harassment.

You see, CPS never contacted me during the time that my husband made this allegation. However, he (or one of his relatives) recently called CPS, apparently for real this time, regarding my child and our two youngest children, about a lack of heat in my home (child abuse/neglect). The CPS worker started sweating a few minutes after walking into my house for the home visit.

So, she sent me a statement confirming that my "household is not in need of services at this time." It now seems that ANYONE can call CPS, say something without proof, and I will have to keep taking time off work for CPS home visits, because this report stays on file for 3 yrs and any report that follows it will require a home visit.

Also during the last continuance (the 3rd court date from the initial 07/29/03 hearing), the judge sort of reprimanded my husband and me for not coming to an agreement about custody for our children. This was the first hearing where I had legal representation, but my lawyer said that I shouldn't bother with the agreement that I developed, because it could only work between two parents who could cooperate and my husband is only interested in avoiding child support.

In the meantime, my newly appointed lawyer and others have been pushing me to put up my 5th child for adoption, because it's not my husband's child and I'll have to fight him (again) to get CS for our children.



1. What recourse do I have for a CP who has lied to our presiding judge and the court-appointed home study investigator when the hearings are never recorded?

2. What can I do about my mom-in-law threatening the children's psychologist?

3. Can I sue my husband (and his relatives) for filing malicious CPS complaints against me, after our separation, about my child from a previous relationship?

4. Should I submit the co-parenting agreement, that I developed without my husband's input, to the judge as part of the case file?

5. How can I get a court to order psych evals for my husband, my mom-in-law, and me?

6. Why is it "good" for me to give up the child that I am carrying (not from husband) to get back my three youngest children? If I give up my last child, what does that say to my other children? How can they feel safe about our relationships?

What if the judge doesn't care about the investigator's recommendation, the GAL's recommendation, and the psychologist's evals of my children (all in my favor)...and he lets them continue living with my husband (on paper) because this case has dragged enough for my husband to claim they've been with him for TWO YEARS? Am I supposed to gamble with my last child's life, hoping to gain an advantage over my husband?

Soc, please help me.

[socrateaser]

>1. What recourse do I have for a CP who has lied to our
>presiding judge and the court-appointed home study
>investigator when the hearings are never recorded?

Court is about what you can "prove," in court, not what you know to be true. You have the right to demand a court reporter be present at any hearing (but you'll have to pay for it).

If you have credible, objective evidence of a material falsification to a public official (i.e., a false statement of fact intended to induce justifiable detrimental reliance, made to the court or CPS), you could file a complaint for false reporting with the district attorney, bring a contempt motion before the current court for material falsification, and, if the action presently before the court is resolved in your favor on the issue that was falsified by the other party, then you could file a seperate legal action for wrongful institution of civil proceedings, abuse of legal process,
and intentional misrepresentation (i.e., fraud).

Once again, however, it's about what you can PROVE to the court, using credible, objective evidence and/or witnesses, not just about what you know to be true.

>2. What can I do about my mom-in-law threatening the
>children's psychologist?

You didn't say precisely what the threat was. If it was a threat that if the psych didn't alter testimony to suit the mother-in-law, that would be coercion by fear or force to compel someone to act in a manner that they would otherwise not be legally obligated to act, which is criminal extortion. However, you would need the psych's cooperation to make out a prosecutable complaint. This is also criminal witness tampering.

If the m-o-l merely stated that she would sue the psych for breach of doctor-client privilege if the psych didn't retract the statements, etc., this would be a legal act, i.e., coercing someone by threat of legal action to do something that they are legally bound to do is not a crime.

I really don't have enough specifc facts of your case to make a decent eval of your legal options.


>
>3. Can I sue my husband (and his relatives) for filing
>malicious CPS complaints against me, after our separation,
>about my child from a previous relationship?

See above.

>
>4. Should I submit the co-parenting agreement, that I
>developed without my husband's input, to the judge as part of
>the case file?

You have an attorney. I'd follow his/her advice in this area.

>
>5. How can I get a court to order psych evals for my husband,
>my mom-in-law, and me?

Show that there is credible evidence of mental infirmity of a party, and that it is relevant to YOUR case.

>
>6. Why is it "good" for me to give up the child that I am
>carrying (not from husband) to get back my three youngest
>children? If I give up my last child, what does that say to my
>other children? How can they feel safe about our
>relationships?

You're asking me for a value judgment on morality. From a strictly financial perspective, less children are easier to care for than more, but that's about all I'm gonna say on this issue.

>
>What if the judge doesn't care about the investigator's
>recommendation, the GAL's recommendation, and the
>psychologist's evals of my children (all in my favor)...and he
>lets them continue living with my husband (on paper) because
>this case has dragged enough for my husband to claim they've
>been with him for TWO YEARS? Am I supposed to gamble with my
>last child's life, hoping to gain an advantage over my
>husband?

The judge has heard every story in the naked city. You are not an unusual case, no matter how much you believe otherwise. If the facts are in your favor, the decision will also be, unless the judge is corrupt, which is possible, however, unlikely.

Nevertheless, settlement is almost always the better option in any court action. You control your future at a settlement -- the judge has control in the courtroom.

[alamero]

Thanks, Soc, for answering my questions. With a little more info, could you address the question at the bottom?

>>2. What can I do about my mom-in-law threatening the
>>children's psychologist?
>
>You didn't say precisely what the threat was. If it was a
>threat that if the psych didn't alter testimony to suit the
>mother-in-law, that would be coercion by fear or force to
>compel someone to act in a manner that they would otherwise
>not be legally obligated to act, which is criminal extortion.
>However, you would need the psych's cooperation to make out a
>prosecutable complaint. This is also criminal witness
>tampering.
>
>If the m-o-l merely stated that she would sue the psych for
>breach of doctor-client privilege if the psych didn't retract
>the statements, etc., this would be a legal act, i.e.,
>coercing someone by threat of legal action to do something
>that they are legally bound to do is not a crime.
>
>I really don't have enough specifc facts of your case to make
>a decent eval of your legal options.

After the last continuance on 02/12/04, my m-o-l read the psych eval  that my children's psych completed on the morning of 02/12/04. The eval covered sessions with two of my children between November and February, but it also included preliminary information about my 2nd daughter (1st and only session between November and February) that recommended further evaluation for her.  

My husband, my m-o-l, and I share legal custody for my 2nd daughter. She was the basis for my m-o-l threatening to have the psych's license revoked (among other things) for talking to my daughter, without my m-o-l's permission. The psych's preliminary eval of my 2nd daughter revealed some issues of which I had a basic grasp and some that my m-o-l kept hidden from me by frustrating my relationship with my daughter (think PAS).

Since February, my m-o-l had her lawyer send the psych a letter, telling her that she could only see my daughter if she had a court order or my m-o-l's permission, because my m-o-l is my daughter's "legal custodian".

If my husband, my m-o-l, and I share legal custody, but my daughter's legal residence is with my m-o-l, does that mean that my m-o-l can bar my daughter from seeing the psych whom I've authorized to evaluate my daughter?

[socrateaser]

>If my husband, my m-o-l, and I share legal custody, but my
>daughter's legal residence is with my m-o-l, does that mean
>that my m-o-l can bar my daughter from seeing the psych whom
>I've authorized to evaluate my daughter?

Please post the EXACT text of your court order/judgment that describes the legal custody status of the parties. Otherwise, I'm just guessing.

Generally, joint legal custody implies that all parties with such custody have the independent right to make major decisions regarding the child's health and welfare. If the order states that the parties must cooperate and agree on any major decisions, that would permit the m-o-l to prevent you from bringing the child to the shrink without her permission or a court order. If not, then you can both decide independently and constantly frustrate each other's decisions.

The court would be interested in why the m-o-l is trying to prevent the eval, and assuming that your actions are in the child's best interests, this could make the m-o-l look pretty bad as a consequence.

[alamero]

>>If my husband, my m-o-l, and I share legal custody, but my
>>daughter's legal residence is with my m-o-l, does that mean
>>that my m-o-l can bar my daughter from seeing the psych whom
>>I've authorized to evaluate my daughter?
>
>Please post the EXACT text of your court order/judgment that
>describes the legal custody status of the parties. Otherwise,
>I'm just guessing.
>
>Generally, joint legal custody implies that all parties with
>such custody have the independent right to make major
>decisions regarding the child's health and welfare. If the
>order states that the parties must cooperate and agree on any
>major decisions, that would permit the m-o-l to prevent you
>from bringing the child to the shrink without her permission
>or a court order. If not, then you can both decide
>independently and constantly frustrate each other's
>decisions.
>
>The court would be interested in why the m-o-l is trying to
>prevent the eval, and assuming that your actions are in the
>child's best interests, this could make the m-o-l look pretty
>bad as a consequence.
>

Thanks again, Soc:

The exact text from the 1998 court order goes,

"All parties acknowledge that it is in the best interest of (my daughter), that her legal custody be placed jointly with her mother, (me), her father, (my husband) and her paternal grandmother, (my m-o-l). All parties also acknowledge that it is in the best interest of (my daughter) that her legal residence be with her paternal grandmother, (my m-o-l). All parties agree that her mother, (me), and her father, (my husband), will have liberal visitation rights with (my daughter)."

Not only is my m-o-l trying to prevent the eval, but neither she nor my husband have chosen another psych to evaluate my daughter. If they have, they haven't told me about it. If they haven't, then frustrating the therapy with the psych directly contradicts the recommendation of my daughter's school counselor (back in Nov '03).

I sent the school counselor a copy of a letter that I sent to my m-o-l two weeks ago, asking my m-o-l to let me see my daughter (on the same weekends as my 2 younger children until our final court date), expressing my concern about her preventing my visitation with my daughter, asking her not to keep harassing the children's psychologist, and inviting her to join me in mediation before our next court date.

1. Does the paragraph that I quoted mean that my m-o-l can neither prevent me from seeing my daughter (as she continues to do), nor use her attorney to intimidate the psychologist that I chose to evaluate my daughter?

2. Should I subpoena the school counselor for my 4th (and hopefully last) court date?

3. Did I make an error by calling my m-o-l and leaving a message,  expressing my frustration with not being able to see my daughter or even talk to her (and feeling like I can't do anything about it until our next court date in Apr '04)
and warning my m-o-l that if she or her attorney continues to intimidate the therapist then I will assist the therapist if she chooses to file harassment charges?

4. Should I, and how can I, submit to the judge the co-parenting plan that I developed on my own (because my husband hasn't and won't cooperate with me on co-parenting)?

[alamero]

>>If my husband, my m-o-l, and I share legal custody, but my
>>daughter's legal residence is with my m-o-l, does that mean
>>that my m-o-l can bar my daughter from seeing the psych whom
>>I've authorized to evaluate my daughter?
>
>Please post the EXACT text of your court order/judgment that
>describes the legal custody status of the parties. Otherwise,
>I'm just guessing.
>
>Generally, joint legal custody implies that all parties with
>such custody have the independent right to make major
>decisions regarding the child's health and welfare. If the
>order states that the parties must cooperate and agree on any
>major decisions, that would permit the m-o-l to prevent you
>from bringing the child to the shrink without her permission
>or a court order. If not, then you can both decide
>independently and constantly frustrate each other's
>decisions.
>
>The court would be interested in why the m-o-l is trying to
>prevent the eval, and assuming that your actions are in the
>child's best interests, this could make the m-o-l look pretty
>bad as a consequence.
>

Thanks again, Soc:

The exact text from the 1998 court order goes,

"All parties acknowledge that it is in the best interest of (my daughter), that her legal custody be placed jointly with her mother, (me), her father, (my husband) and her paternal grandmother, (my m-o-l). All parties also acknowledge that it is in the best interest of (my daughter) that her legal residence be with her paternal grandmother, (my m-o-l). All parties agree that her mother, (me), and her father, (my husband), will have liberal visitation rights with (my daughter)."

Not only is my m-o-l trying to prevent the eval, but neither she nor my husband have chosen another psych to evaluate my daughter. If they have, they haven't told me about it. If they haven't, then frustrating the therapy with the psych directly contradicts the recommendation of my daughter's school counselor (back in Nov '03).

I sent the school counselor a copy of a letter that I sent to my m-o-l two weeks ago, asking my m-o-l to let me see my daughter (on the same weekends as my 2 younger children until our final court date), expressing my concern about her preventing my visitation with my daughter, asking her not to keep harassing the children's psychologist, and inviting her to join me in mediation before our next court date.

1. Does the paragraph that I quoted mean that my m-o-l can neither prevent me from seeing my daughter (as she continues to do), nor use her attorney to intimidate the psychologist that I chose to evaluate my daughter?

2. Should I subpoena the school counselor for my 4th (and hopefully last) court date?

3. Did I make an error by calling my m-o-l and leaving a message,  expressing my frustration with not being able to see my daughter or even talk to her (and feeling like I can't do anything about it until our next court date in Apr '04)
and warning my m-o-l that if she or her attorney continues to intimidate the therapist then I will assist the therapist if she chooses to file harassment charges?

4. Should I, and how can I, submit to the judge the co-parenting plan that I developed on my own (because my husband hasn't and won't cooperate with me on co-parenting)?

[socrateaser]

>1. Does the paragraph that I quoted mean that my m-o-l can
>neither prevent me from seeing my daughter (as she continues
>to do), nor use her attorney to intimidate the psychologist
>that I chose to evaluate my daughter?

You all have joint legal custody. Unless there is some other text in the order(s) that gives mol the power to override you, then you all have complete and independent authority to make major decisions regarding the child's welfaire. So, you can order the shrink to cooperate, and the mol can tell him to stop -- a real tennis match.

>2. Should I subpoena the school counselor for my 4th (and
>hopefully last) court date?

I don't know what you're attempting to prove. I can't reread old posts, so when you ask a question, you need to provide the relevant facts again.

>
>3. Did I make an error by calling my m-o-l and leaving a
>message,  expressing my frustration with not being able to see
>my daughter or even talk to her (and feeling like I can't do
>anything about it until our next court date in Apr '04)
>and warning my m-o-l that if she or her attorney continues to
>intimidate the therapist then I will assist the therapist if
>she chooses to file harassment charges?

Probably. Never put anything in writing or on tape unless you are sure it works in your favor (and you can almost never be sure).

>
>4. Should I, and how can I, submit to the judge the
>co-parenting plan that I developed on my own (because my
>husband hasn't and won't cooperate with me on co-parenting)?

You could file a supplimental brief if you want the court to have it prior to trial. Some courts actually require a trial brief stating everything that you intend to prove prior to trial, but there's nothing to stop you from filing such a brief, even if your court does not so require.

Your parenting plan is just evidence of your actions in the child's best interests.

[alamero]

Thank you for your help, Soc.

Today, I went to court loaded for bear, thinking that I had an uphill battle to convince the court that it was in my three youngest children's best interests to return to my primary physical custody because even my allies were concerned that the judge would consider (unfavorably) that I am about to deliver my 5th child...

After months of pleading with my stbx and my m-o-l about my concerns for my three youngest children (including the therapy that even their school counselor recommended for the two in school), my stbx's lawyer stood up and announced to the judge that his clients were ready to reach a settlement...as my lawyer was about to ask the first question of our first witness (I had two social workers and a rehab counselor lined up to testify on my behalf).

When I get a copy of the order, I will post it to the board. I was the NCP and the defendant in one matter...and the NCP and the petitioner in the other matter. I'm getting my two youngest kids back as of June 17 (defendant) and my 2nd daughter's custody hinges on a complete psych eval that must be completed by the 2nd or 3rd week in July (petitioner).

I'm OK with the status quo until June. My only concern is that the judge said that today's order can be modified by either party. I've been playing Charlie Brown to my stbx's Lucy for too long, not to be a little paranoid about being this close to the finish line.

Here's yet another question for you, Soc:

1.  Can my stbx and my m-o-l's lawyer file a motion to modify/withdraw the settlement before the June 17 transfer of physical custody (because my 5th son will be 3 wks old by then) and hold up the transfer of physical custody for my youngest two children...and my 2nd daughter's psych eval?

[socrateaser]

>1.  Can my stbx and my m-o-l's lawyer file a motion to
>modify/withdraw the settlement before the June 17 transfer of
>physical custody (because my 5th son will be 3 wks old by
>then) and hold up the transfer of physical custody for my
>youngest two children...and my 2nd daughter's psych eval?

If you have reached a settlement, either signed or in open court, and the court has signed off on it, then it is a DONE deal, and there's no backing out.