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Author Topic: Dropping the case?  (Read 1419 times)

HelpingHands

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Dropping the case?
« on: Nov 01, 2006, 08:15:50 AM »
Va appeals case.

Recieved phone call stating she wants to 'drop the case'. She stated she wants child to reside with me and visit with her. She and her current boyfriend want to move in together, then marry(court order states no cohabitation, unless related by blood or marriage) and her mother is in the way of that. She stated she had an appointment with her atty on Nov 2 to discuss dropping the case.

I paid for a consult fee and was told- do not show up to circuit court without AN ATTY- whether it be him or someone else- that circuit court is not family friendly and without counsel- good luck. The GAL will look out for the rights of the child, but that circuit court is a fact driven, law book court(this particular judge anyways).

The price of atty- is beyond our means. This, unfortuntely, IS the rate for attys in this particular area. (we've done everything from applying for loans, to title loans to get the funds and even doing that doesn't give us the amount for the retainer fee. I've spent $$ for a consultation- he said there's no doubt the child belongs here(sent him all the court papers, evidence, etc) but he needs to prepare the case from new- since it's being heard as a new case.

The GAL's report is due to the court on Nov 3. GAL is the one who recommended the custody change, based on testimony during the Aug trial (she admitted frequent trips to the pool halls and bar w/ child, to being involved with someone who has an extensive criminal history, including drugs, not being physically there to care for child because she is transporting the BF, that her memory loss is severe- can't remember even 5 minutes ago, sometimes, intentionally withdrawing child from school to prevent/frustrate the visitations,  etc).  To my knowledge, the mother has still NEVER met with the GAL(outside of the courthouse), she cancelled each meeting request(unless she's done so since Aug).

I've informed the GAL of the mother's recent phone conversations about dropping the case, about discussing the issues with the child, about the letters my daughter(age 7) wrote to me asking me to talk to her mother- to stop upsetting her with the moving back conversations(sent copies to the GAL). As far as I understand the GAL still holds with her original recommendation that our child live here.

1. What actions or steps are taken for her to drop this action(an appeals case)? Can she even do that? My understanding is- is that the appeals process was already granted and now we are facing the original hearing all over again- which was MY case against her(because she requested the judge dismiss her petitions for her original amendment case against me).

2. As you can see, this is a big jumbled mess and I don't know what steps to take, without counsel, other than wait for the GAL's report and a call from the mother(which even then-I can't trust that she's telling me the truth).  

3. If the mother DOES not want to pursue the case, is her attorney required to notify me PRIOR to the court hearing, in writing?

Thanks Soc.


socrateaser

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RE: Dropping the case?
« Reply #1 on: Nov 01, 2006, 08:28:09 AM »
>1. What actions or steps are taken for her to drop this
>action(an appeals case)? Can she even do that? My
>understanding is- is that the appeals process was already
>granted and now we are facing the original hearing all over
>again- which was MY case against her(because she requested the
>judge dismiss her petitions for her original amendment case
>against me).

The best solution would be for the two of you to file a "joint motion for entry of stipulated judgment" in the new court, containing all of the relevant provisions of the lower court order and anything new you want to add. The court will sign and that will end the litigation.

>
>2. As you can see, this is a big jumbled mess and I don't know
>what steps to take, without counsel, other than wait for the
>GAL's report and a call from the mother(which even then-I
>can't trust that she's telling me the truth).

I don't see a question mark.

>
>3. If the mother DOES not want to pursue the case, is her
>attorney required to notify me PRIOR to the court hearing, in
>writing?

Nope. Unless the other party signs a settlement agreement prior to Nov. 3, you have nothing and your case will move forward. So, either get your proposed agreement in print and sit down with her for a signature, or go to the hearing and take your chances.

Do NOT agree to continue the matter without hearing just because opposing counsel and you agree that you will be able to reach a settlement. The other party can changer her mind, and you will just be treading water until a new hearing date is set.


HelpingHands

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RE: Dropping the case?
« Reply #2 on: Nov 01, 2006, 11:24:46 AM »
"The best solution would be for the two of you to file a "joint motion for entry of stipulated judgment" in the new court, containing all of the relevant provisions of the lower court order and anything new you want to add. The court will sign and that will end the litigation."

1) Will this require signatures or approval from her attorney and the GAL as well?

"Nope. Unless the other party signs a settlement agreement prior to Nov. 3, you have nothing and your case will move forward. So, either get your proposed agreement in print and sit down with her for a signature, or go to the hearing and take your chances.

Do NOT agree to continue the matter without hearing just because opposing counsel and you agree that you will be able to reach a settlement. The other party can changer her mind, and you will just be treading water until a new hearing date is set."

2) Are you saying  Nov 3 is the cut off date because that's moving forward with the GAL's report and continuing the action?

3) If the GAL's report and recommendation are favorable to me and the mother is willing to agree with her recommendations, can we still do the settlement agreement, with the inclusion of her recommendations? (we live 500 miles apart- I can't drive there just for a signature, unless it's going to be accepted in the court)

Thank you again for answering.

socrateaser

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RE: Dropping the case?
« Reply #3 on: Nov 01, 2006, 03:07:26 PM »
>"The best solution would be for the two of you to file a
>"joint motion for entry of stipulated judgment" in the new
>court, containing all of the relevant provisions of the lower
>court order and anything new you want to add. The court will
>sign and that will end the litigation."
>
>1) Will this require signatures or approval from her attorney
>and the GAL as well?

Nope. Parties can agree without their respective representatives. The child is not actually a party, so the GAL doesn't need to approve, and the only other party would be the State, if there's an open case with the child support collection unit or Health and Human Services (welfare agency).

>2) Are you saying  Nov 3 is the cut off date because that's
>moving forward with the GAL's report and continuing the
>action?

No, I'm just saying that you can end it prior to that date, if your goal is to avoid any additional litigation.
>
>3) If the GAL's report and recommendation are favorable to me
>and the mother is willing to agree with her recommendations,
>can we still do the settlement agreement, with the inclusion
>of her recommendations? (we live 500 miles apart- I can't
>drive there just for a signature, unless it's going to be
>accepted in the court).

You can do whatever you agree on as long as it's reasonable that both of you believe it's in the child's best interests.

As far as driving 500 miles, I'd drive a lot further than that to end a custody case in a favorable manner -- but, of course, your mileage may vary.

HelpingHands

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RE: Dropping the case?
« Reply #4 on: Nov 01, 2006, 05:16:54 PM »
Thank you, Soc.

I wanted to clarify that she didn't need to have her attorney's 'approval' on anything she agreed to(or the GAL's). Also, what I meant by not driving 500 miles one way just to do that is, I am a father raising 5 kids and have already missed a ton of work due to this court battle, I need to keep my job and take care of my family. I didn't want to make a wasted trip, if it wouldn't be accepted in the courts.

Thank you so much. The mother is supposed to talk to me tomorrow after her meeting with her attorney. Hopefully, she still wants to drop the case after speaking with her attorney.


 

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