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Re: Teenage Boys - Contempt of Court

Started by socrateaser, Jan 08, 2006, 09:02:50 AM

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SFMedic

Dear Soc,

You had mentioned this before and I forgot to ask as a follow-up, regarding the issue of sanctions being requested.

1.  Question:  Regarding sanctions, such as make-up visitation days, at this time I've missed a total of 45 days.  Could I request this time to be added during the summer months of my visitation versus during the remainder of the school year?  Considering there is a 4 hr one way drive and per the current court order, I'm already to have them for 5 wks during the summer anyway.

2.  Question:  How would I properly word the request to the Judge and at what point would I bring it up?  Would it be during my "closing remarks" during my scheduled hearing, which is this coming Friday (Jan 20th)?

3.  Question:  Regarding sanctions with requesting the Mother to post a monetary bond, how would I properly word this to the Judge?  Would it be unreasonable to request the posting of the bond to be for a period of one year from the date of the hearing, so I don't miss out on upcoming holidays, or does the court typically only go out for a period of no more than 6 months at the most, just wondering?

4.  Question:  Regarding the monetary bond.  Should the Mother say she doesn't have the means, could I ask that her "tax return" for this year be used as collateral.

5.  Question:  This coming Friday, during our hearing, is also a scheduled weekend with the children, could this also be another sanction to request of the Judge, if so, how would I properly word this request?

thanks...

SFMedic

Dear Soc,

I forgot to ask about one other sanction

1.  Question:  Can I ask for reimbursement of associated court cost and attorney fees with having to prepare for the mulitple hearings, this being the third one?  The first one was for a TPO hearing, which was dismissed, the second was a pre-trial conference.

2.  Question:  How would I properly word this request to the Judge?

thanks...

socrateaser

>1.  Question:  Regarding sanctions, such as make-up visitation
>days, at this time I've missed a total of 45 days.  Could I
>request this time to be added during the summer months of my
>visitation versus during the remainder of the school year?
>Considering there is a 4 hr one way drive and per the current
>court order, I'm already to have them for 5 wks during the
>summer anyway.

You can request whatever you think is fair and reasonable.

>
>2.  Question:  How would I properly word the request to the
>Judge and at what point would I bring it up?  Would it be
>during my "closing remarks" during my scheduled hearing, which
>is this coming Friday (Jan 20th)?

If this is a contempt hearing, then the judge must "sentence" the contemnor, and you would generally be asked for your input as to the sentence. Then you just tell the judge what you think would be "fair and reasonable, in view of the courts judgment." (magic words, the rest is up to you).

>
>3.  Question:  Regarding sanctions with requesting the Mother
>to post a monetary bond, how would I properly word this to the
>Judge?  Would it be unreasonable to request the posting of the
>bond to be for a period of one year from the date of the
>hearing, so I don't miss out on upcoming holidays, or does the
>court typically only go out for a period of no more than 6
>months at the most, just wondering?

I think it's reasonable to post a bond for the remainder of the child's minority, assuming contempt is found.

>
>4.  Question:  Regarding the monetary bond.  Should the Mother
>say she doesn't have the means, could I ask that her "tax
>return" for this year be used as collateral.

You mean her right to a refund or to the child tax credit? That's only reasonable if the judge actually awards you "child support" in the amount of the sanction, because the IRS cannot intercept a refund for any other reason.

If the other parent has no assets, then you're never going to receive any money, so your argument is to award you more parenting time, and reduce child support consistent with the reduction. Otherwise, you'll never see any money, bond or no bond.

If the other parent has assets, then the bond makes sense.

>5.  Question:  This coming Friday, during our hearing, is also
>a scheduled weekend with the children, could this also be
>another sanction to request of the Judge, if so, how would I
>properly word this request?

You just tell the judge what you think is "fair and reasonable in view of the judgment of the court."

socrateaser

>Dear Soc,
>
>I forgot to ask about one other sanction
>
>1.  Question:  Can I ask for reimbursement of associated court
>cost and attorney fees with having to prepare for the mulitple
>hearings, this being the third one?  The first one was for a
>TPO hearing, which was dismissed, the second was a pre-trial
>conference.

You don't have any attorney fees, because you don't have an attorney and you're not licensed as an attorney in any jurisdiction.

You can ask for filing costs, copying costs, clerical costs, and any other verifiable out-of-pocket costs that are reasonable, such as travel expenses if your travel is more than about 150 miles round trip. Otherwise, not.

>2.  Question:  How would I properly word this request to the
>Judge?

You just tell the court that you have expended $X in verifiable out-of-pocket costs as a result of the contempt hearings and that you request reimbursement as a sanction, based on your submission of receipts and a summary of the expenses.

PS. DON'T double post. If you screw up and have more questions, then edit your original post, or wait until I've already answered your prior post. I think I've asked you to do this in the past, but you ain't listening.

I don't have time to fish through your posts looking to see what's the most current or whether one post amends, supplements, modifies, so please stop this practice, or I'm not gonna respond anymore.

PPS. Don't post an apology, because I'll have to read that, too. Just stop doing it. Thanks.

SFMedic

Dear Soc,

I'm wanting to file a "Memorandum for Law: Estrangement as a factor in the best interests of the child standard and the resolution of visitation disputes".

I'm under the impression, this would be supplemental information, I'm wanting to add to the court case file.  I have a scheduled hearing for Contempt of Court against the Mother, due to denial of visitation, this coming Friday (Jan 20th) at 1:30 pm.

1.  Question:  Given the date of my hearing, is it still possible to have this added to the court case file?  It will be hand delivered first thing tomorrow morning.

2.  Question:  The Memorandum of Law, would this actually be something considered as a "new" petition or just supplemental information?

3.  Question:  Do I need to phrase the request in a particular way or point out anything specific with the court clerk, regarding the memo being matched up with the court case file, so as to avoid any confusion given the time constraints?

4.  Question:  Is this something that would help or benefit my case in someway?  I was told the memorandum would help establish a foundation for the points I will bring up during the hearing.

5.  Question:  Have you had or known of anyone submiting a memorandum like this in the past and it being of any use?

thanks....


socrateaser

>1.  Question:  Given the date of my hearing, is it still
>possible to have this added to the court case file?  It will
>be hand delivered first thing tomorrow morning.

Yes. But, you need to serve it on your opponent, and it's not timely, so the court can refuse to consider it on this ground.

>
>2.  Question:  The Memorandum of Law, would this actually be
>something considered as a "new" petition or just supplemental
>information?

It's actually called a "Memonrandum of Points and Authorities", or "Points and Authorities" for short, when submitted to support a motion. And the entire longhand, ESPECIALLY if you're submitting it after your motion, would be:

Memorandum of Points and Authorities in Support of Petitioner's Motion for WHATEVER_YOUR_MOTION_IS_FOR.

(above assumes you're petitioner -- change as required)

. A Memorandum of Law by itself is what attorneys write to each other in their firm, or what a law clerk writes to a judge to help give case law background on a particular issue.

>3.  Question:  Do I need to phrase the request in a particular
>way or point out anything specific with the court clerk,
>regarding the memo being matched up with the court case file,
>so as to avoid any confusion given the time constraints?

You just add a cover letter explaining that this is a supplement to your existing motion.

>4.  Question:  Is this something that would help or benefit my
>case in someway?  I was told the memorandum would help
>establish a foundation for the points I will bring up during
>the hearing.

Well, now that all depends on what the memo says. If it's actually a points and authorities, i.e., a legal argument primarily explaining what the law says and why it applies to the facts submitted in your case, then the court can consider the argument as part of the case.

But, if the memo predominantly to explain and introduce new facts, i.e., describe a medical/psychological/financial issue and how the facts offerred prove your argument for your motion, then your memo will be inadmissible, assuming it's objected to timely or the judge just says, "whoa now!"

That's because a report stating complex factual opinions is hearsay evidence and requires an expert witness to explain it to the court (usually the author of the report, who has special qualifications in the field of expertise being explained).

So, not knowing what you're about to offer, or the predisposition of the judge, I can't say if it will be a benefit, a burden, or a waste of effort.

>5.  Question:  Have you had or known of anyone submiting a
>memorandum like this in the past and it being of any use?

Many jurisdictions REQUIRE a points and authorities, even if only one sentence, with every motion. (e.g., a cite to a relevant statute giving the court authority to hear the motion, could be enough satisfy such a requirement).

As for the latter form of document, i.e., expert report, that also happens all the time, however, the judge can't admit it as part of a contempt action, without the presence of the author, because, it is an out of court written statement made by someone other than you, and it is being offered to prove the truth of the matters asserted therein. That means it's hearsay evidence, and it doesn't fall within any well-rooted exception (it's not a business record, or a public record, or a depo transcript or an interrogatory answer, or written by the other party, or the author is available for cross examination, or it is from a source so well established that its accuracy is not subject to reasonable dispute (e.g.,Webster's Dictionary).

It also may be testimonial hearsay, i.e., reasonably understood by the author that it would be offered prosecutorially at a "criminal" trial, in which case the 6th Amendment's confrontation clause requires that the author be available at trial or previously examined on the subject of the memo, or it's out -- period (unless the other party killed the author to prevent his/her appearance at trial -- LOL!).

Anyway, I'm mainly playing with you here, because I don't know what the memo actually says or why it's being offered, but I wanted you to see that what you're asking about isn't a cut and dried issue.

It's a messy can-o-worms!

SFMedic

Dear Soc,

Thanks for the insight, and yes I was aware it was very involved.  

1.  Question:  What I have is 8 pages in length as a word document format, could I send you an e-mail copy for review.  I apologize for the short notice, as it was just given to me earlier this afternoon.

The memorandum has to do with citing various other family court cases and their verdicts.  I had a feeling I was already up against the clock, regarding the submission of this document.

thanks...




socrateaser

>Dear Soc,
>
>Thanks for the insight, and yes I was aware it was very
>involved.  
>
>1.  Question:  What I have is 8 pages in length as a word
>document format, could I send you an e-mail copy for review.
>I apologize for the short notice, as it was just given to me
>earlier this afternoon.

No time.

>
>The memorandum has to do with citing various other family
>court cases and their verdicts.  I had a feeling I was already
>up against the clock, regarding the submission of this
>document.

If that's all you're doing, then you need to apply the cites to the allegations and show why the court should find contempt assuming that you prove the same things that prior courts have found liability on.

That's not an expert report. But, just a list of bare case cites is a waste of time, and the court will think that you think it doesn't know how to research and consider findings of facts and conclusions of law.


SFMedic

Dear Soc,

Yesterday was a mixed bag in terms of results with my scheduled court hearing, regarding contempt of court against the mother, for denial of visitation.  We were both Pro Se in the Contempt of Court case that was heard in MD.  Children at this time are 15 and 16 y/o.

I had well over 20 different exhibits that were all relevant to the case and couldn't get them presented or accepted as evidence.  Because according to the Judge, I wasn't following proper procedure.

The end result of the case, the Mother openly admitted in court she was in contempt due to denying visitation.  She brought the children as well, and I was able to have them removed from the courtroom before we proceeded any further.  

The Mother also had planned to call them up as witnesses, and I requested they be questioned in chambers, so the Judge had everyone leave the courtroom, and they were questioned separately.  They painted a picture to the Judge, as if I constantly beat them or hit them all the time when they come down to visit, and that I hardly do anything with them during a given weekend, which were bold face lies.

I had brought a photo album with other 600 pictures as evidence to the contrary, covering the last 8 years, but again, wasn't able to present it as evidence.

The Judge's ruling was "he wasn't not going to find her in contempt", that final determination would be set aside for now.  He warned the Mother, the onus was on her "to make some type of effort" with  arrangements with the boys, in order for me to have some type of visitation.  

This weekend was an actual scheduled weekend, which I made the court aware during my closing remarks.  I haven't seen my boys since July 31, 2005.  

The Judge ordered a complete custody evaluation to be initiated with both of us.  The Judge reminded her when we have a pre-trial conference on April 25th, regarding an "Enforcement and Modification" motion that I filed, and the court should have a determination made by then regarding the evaluation.  He warned the Mother once again, if she didn't allow visitation to take place, it would not look good for her coming back to court in April.

I requested sanctions be brought against the mother, regarding make-up of additional time, posting of a visitation bond, they were all discarded.

The Judge also made a comment based on the extensive documentation that I've submitted in the case file, that I obviously had concerns with Parental Alienation taking place.

The Mother had asked if the children could be interviewed by someone in WV, so they wouldn't have to miss anymore school.  This was also the Mother's way of trying to get out of having to meet me halfway, per the standing court order.  The Judge pointed out, how they would be interviewed in MD, and that it could easily be accomplished during my scheduled weekends, which the Mother didn't like to hear.

1.  Question:  What is the proper format/procedure with presenting evidence to the court, I realize there is subtle differences from one state to the next?

2.  Question:  Regarding the custody evaluation, would you recommend we have an attorney present, once we get to a point of the evaluator conducting interviews with me?

3.  Question: Regarding my exhibitis of evidence, is this something I could present to the evaluator during an interview?

4.  Question: Regarding the evaluation, is there anything else you could think of, that I would need to do or have, so that I'm properly prepared?

thanks...



socrateaser

>1.  Question:  What is the proper format/procedure with
>presenting evidence to the court, I realize there is subtle
>differences from one state to the next?

The differences between jurisdictions is so small that's generally irrelevant. If there's a big difference, it is usually described in the State trial court rules, and/or county court rules. Never go to trial without reading all the court rules, because you may miss something big, even if you're an attorney. You're expected to know the code of civil procedure, the rules of evidence, and the state/local rules.

 I can't tell you specifically what the proper format/process is without knowing all of the above. And, even with all of that, the proper process depends on the evidence offered, so I'd need to know exactly what you offered (and don't post it here, because I'm not teaching an evidence/trial practice class online -- way out of scope).

In GENERAL, evidence must be:

1. Logically relevant. It must tend to prove or disprove an element necessary to satisfying the burden of persuasion in the case. Ex: a receipt from the store where a custody transfer was to take place is relevant to proving that the declarant was at the store at the place and time shown on the receipt.

2. Legally relevant. It must not violate some public policy that prevents it from being offered, regardless of its logical relevancy. Ex: A person's character is generally inadmissible to prove their conduct on a particular occassion, unless their character is actually at issue, so if there is proof of a parent's reputation for hating for the other parent, then this character flaw would be admissible to prove conduct, but it's still a pretty weak proof. Conversely, the fact that a father is reputed to enjoy wearing pink underwear, doesn't make him a bad parent.

3. Based on sufficient foundation, so that it is deemed to be what it is purported to be. Ex: a photo is not competent unless the person who took it is identified, the time, date, and place that it was taken are identified, and the general method by which it was taken, and how it arrives at the court in its present form (i.e., "chain of custody") is identified. That way, you can't take a digital foto, insert a smiling face of your child into the family scene, dull it up in Photoshop(r), and then claim that you took the foto 5 years ago at the kid's b'day.

4. It must be in proper form (mainly concerns testimony). Ex:
Assumes facts in evidence. Question can't contain an assumption that is not already on the record "Are you still beating your spouse," assumes that you were beating your spouse, in the past. Without evidence showing that you were, this is inadmissible.

5. It must not be subject to an exclusionary rule. The big one being hearsay: "An out of court statement (or evidence) offered to prove the truth of the matter asserted." Ex: "My neighbor told me that she my ex leave our one year old child in the backyard unsupervised for over 2 hours." If this statement is offered to prove that the defendant is a poor caretaker of the child, then the neighbor must be on the witness stand saying it in the first person, or at least available for cross examination -- otherwise, the statement is out.

Conversely, "My ex said that she left the child outside unsupervised for 2 hours," is an admission, and is, while highly suspect because of its source being the adversarial spouse, admissible, unless the statement is offered in a criminal trial, and was compelled by governmental interrogation, incident to an arrest and without the person having been read their "Miranda" rights.

That's about as far as I'm going into evidence law online. This could take months to completely review. If you are really interested, you'll have to go to law school.

>2.  Question:  Regarding the custody evaluation, would you
>recommend we have an attorney present, once we get to a point
>of the evaluator conducting interviews with me?

Not necessarily. I would recommend that you have a disinterested third party witness videoing the entire episode. Of course this will make the evaluator think you're paranoid, but that's the tradeoff -- there's no real good answer to this question.

>
>3.  Question: Regarding my exhibitis of evidence, is this
>something I could present to the evaluator during an
>interview?

Yes, but you need to be careful that you don't appear obsessed with "getting even," because that is the kiss of death for a custody eval. You want the evaluator to KNOW that your sole interest is the child's welfare, even if it means that you would never see the child again. That will get the evaluator's attention better than any hard evidence.

>
>4.  Question: Regarding the evaluation, is there anything else
>you could think of, that I would need to do or have, so that
>I'm properly prepared?

See #3. You need to be sad that you haven't had time with yor child, and happy for anything that is good in the child's life, regardless of whether it is the consequence of the other parent, or of your being cut off from the child.

Other than that, do NOT denegrate the other parent. The other parent is NEVER BAD, she is simply advancing her interests, and you are sad that your child has not had the benefit of both parents as a result.

This difference is the BIG issue in an eval -- your attitude is what the evaluator looks for. Are you interested in yourself and getting revenge, or are you interested only in the child's "best interests," regardless of how detrimental those interests may be to your personal interests.

You can bet that the other parent will take bad about you, so if you don't return the favor, then you have a huge edge, because the evaluator will say, "What's up with dat?" This guy is only interested in the kid, and the mom is an a___."

Don't rise to the occasion to show your own ass or you will get it kicked.