How many times for denial before you go back to court? and others

[whippertizzy]

Dear Soc,

Thank you for all of your help last time, Now I have some more information that I would like to run past you.

The time before last we went to pick the kids up no one was home but the Grandmother of Dh's children at the appointed time. The Police did show up to take the report. Grandmother insisted BM was on the way, but the police officer said that since it was 45 minutes after the visitation was supposed to start it was a no show, and gave us a report saying they were not there.

Last time we went to pick up the kids was a fiasco.  The day before the BM called and said the kids were in Nebraska and that he couldn't pick them up. She hung up and would not answer anymore calls. We were already in town so we decided to stay anyway and take care of a few things.

We went to Dh's school to get a copy of his daughters school record.  The principal(sp?) came out and voiced her concern over one of his daughters, because she has been late almost everyday this school year, and that it was the same last year(no reason for this, they live two blocks from school).  We also found out his younger daughter was not registered for school anywhere in the county or the next one over.(she is 6)

We called the schoolboard , they say that she does not have to go to kindergarten, but if she cannot pass the test for the 1st grade, she will be 7 in kindergarten. To Dh this is unnacceptable. We also saw the younger daughter infront of her house, she was beyond dirty, hair was matted from not being done, andhad no shoes on.

Long story short, Kids weren't there even though they were in the state, and we know one was in school. The police said they will  be giving and order to appear for the BM if they are not there next time.

Now some questions.

1. Is the Older daughters being late everyday to school(with proof from school recordss) and the principal(sp) complaining about how her homework was never done last year or this year, something the courts look at when you are in a custody battle?

2. We did call DCFS about the younger daughter being so dirty when we saw her, but they say that, we need to see it one more time before they will investigate, Is this something else the courts will look at if Dh gets a DCFS report saying the house is dirty and that the children are dirty?(this would not be the first time they have been dirty, but just not to this extreme)

3. BM has 6 children total, Her husband has 3, and her sister has 2, all living in the same house.  I know there is no law about how many people can live in a house, but will the courts look at that as something negative going on in their lives? I know we can provide a better homelife for them, but I know sometimes that always doesn't matter. At our house they could have their own rooms for crying out load and not have to share with two other people!

We are still trying to get the visitation fixed, but after seeing how they are really living up close, I think my DH is getting a lawyer and going for custody.

[whippertizzy]

Whoops I forgot my first question,

4. Do we need to file contempt for every denial, or can we file one motion citing three diiferent times the CP was in contempt?

[socrateaser]

>1. Is the Older daughters being late everyday to school(with
>proof from school recordss) and the principal(sp) complaining
>about how her homework was never done last year or this year,
>something the courts look at when you are in a custody
>battle?

Yes. Definitely.

>
>2. We did call DCFS about the younger daughter being so dirty
>when we saw her, but they say that, we need to see it one more
>time before they will investigate, Is this something else the
>courts will look at if Dh gets a DCFS report saying the house
>is dirty and that the children are dirty?(this would not be
>the first time they have been dirty, but just not to this
>extreme)

Yes. Definitely.


>
>3. BM has 6 children total, Her husband has 3, and her sister
>has 2, all living in the same house.  I know there is no law
>about how many people can live in a house, but will the courts
>look at that as something negative going on in their lives? I
>know we can provide a better homelife for them, but I know
>sometimes that always doesn't matter. At our house they could
>have their own rooms for crying out load and not have to share
>with two other people!

If there is a local zoning ordinance that limits the number of people in a household, and the custodial parent is violating that ordinance, then that is arguably a health and safety violation that the court would have to consider as weight against the custodial parent, during a custody action.

How much weight? I can't say...it's up to the court.

[socrateaser]

>4. Do we need to file contempt for every denial, or can we
>file one motion citing three diiferent times the CP was in
>contempt?

No, you file one contempt motion and list each "count" of contempt.

[whippertizzy]

Thank you for answering, I have a few more if you have the time.

1.  My husband has thought about using a private investigator to see if there is anything else going on. Right now the BM's husband has a warrant out for him, and when we looked up his record it was HUGE. Drugs, something about holding someone hostage a couple years back
Is this something the courts will also look at?

2. Does it make My husband (ncp) look bad for hiring a P.I.? We live 5 hours away, and We hear alot of stuff from people who know them, but I don't know if that holds up in court.

3. We found out that last year, one of his daughters did not even live with the BM during the school week, that she lived with a Grandmother, because the bm was too "Busy" having another baby, and had too many other kids to take care of. Is this something we can bring up, or is it petty?

We also found out that the mother instructed them never to tell what was going on in the house, such as the children living with their grandmother's, and how many kids live in the house. The BM went as far as to tell us not to ask them about their house! Sounds fishy to me.

4.The BM is married to an ex con, in fact, she helped put him in jail one of the times he went.   Again, is this something we can bring up, or are we being petty?

I know these may seem like silly questions, but before we got to a lawyer, I would like to know what we are dealing with, thank you for your time in advance:)

[whippertizzy]

My husband just talked to BM. The last few times we have went to pick them up, BM has been out of town, Once was Ohio, Once was Nebraska, This coming week she says Florida. Every time we go there she is out of town.

I know the police report says that atleast one of these that they had to call her in Nebraska.  This week, I am sure they will document the Bm's husband saying she is in Florida.  I am not sure if they documented her being in ohio.

1.  The BM is out of town everytime we go pick the children up, Will the courts weigh in on this? The kids are apparently not staying at the house that the BM lives at.  When we go to court, either BM is going to say that she lied and was home, or that she was indeed out of town, Will this weigh in on determining custody?

2. Do the courts care about the mother leaving her children for extended periods of time? From what we are piecing together, the kids are at their grandmothers, One at one grandmother, and the other child at the other grandmothers.

BM says that the youngest daughter is in school. It is in the next county over, and not in their district.  She says the reason is that the kindergarten that the daughter would have to attend is not "good enough" so she just put her in a different school.

My husband has already talked to the schoolboards about this. Up where they live, this is not allowed. You go to the school in your district, THE END. No exceptions. We already checked, and know that she isn't in school in any district in the two main counties up there.

If somehow she did manage to sneak the child into another school(which would require getting a utility bill with your name and address in the district of the school) She would be in alot of trouble, they have huge fines for that where the BM lives, plus they will remove the child from the school, and put the child in the appropriate district.

To me this is alot of unessesary drama the the BM is putting on the children, she is telling them to lie about where they live, what they do, how many people are in their house.

Final Question
3. This all seems very important to DH and I, but the more I read other peoples stories here, the more I see that sometimes it doesn't matter.  In your opinion, Do you think we have any sort of a case?  We are stll looking at lawyers, but I just wanted to see what your opinion is.

Don't want to be dissillusioned, you know? Thank you very much for taking the time to answer our questions, You have been very helpful to us!

[socrateaser]

>1.  The BM is out of town everytime we go pick the children
>up, Will the courts weigh in on this? The kids are apparently
>not staying at the house that the BM lives at.  When we go to
>court, either BM is going to say that she lied and was home,
>or that she was indeed out of town, Will this weigh in on
>determining custody?

A provable pattern of behavior is admissible as evidence of habit. Habitually failing to permit the other parent to exercise custody/visitation is presumptively not in the children's best interests, and the court will consider this behavior in making a custody determination. It is also contempt of court, unless there is some text in your existing orders that permits this behavior.

>
>2. Do the courts care about the mother leaving her children
>for extended periods of time? From what we are piecing
>together, the kids are at their grandmothers, One at one
>grandmother, and the other child at the other grandmothers.

Not generally. A parent exercising custody has the authority to delegate that custody to another person. However, if you are awarded secondary physical custody and/or joint legal, and not merely visistaiton, then you can argue that the extended use of some other custodian violates your fundamental right to exercise custody, and that the court must strictly scrutinize the other parent's actions, in order to afford you the maximum possible use of your rights consistent with the child(ren)'s best interests.

Removing all the legaleze, the answer is yes.

>3. This all seems very important to DH and I, but the more I
>read other peoples stories here, the more I see that sometimes
>it doesn't matter.  In your opinion, Do you think we have any
>sort of a case?  We are stll looking at lawyers, but I just
>wanted to see what your opinion is.

It does not necessarily follow that the children are in distress because they attend a school district other than their legally mandated school district. It may be unlawful, and it may be that the custodial parent could (and will) receive a fine for the behavior, but this may not bother the kids in the least. They may be quite happy at their current school, and they may even be receiving a superior education -- I don't know. However, this argument will not get you very far with the court, unless you can actually show how the parent's behavior acts to subvert the child(ren)'s best interests.

However, a parent who routinely frustrates the other parent's exercise of custody can, in instances where the behavior continues even after the court has found that parent in contempt, can be relieved of the role primary caretaker.

If this is what you wish to achieve, then you need to file a motion for contempt and prove that the other parent regularly and routinely frustrates your access to the child. Then, after you win this motion, if the other parent continues to frustrate your access, that's when I would ask the court to award you custody. You could try now, but, on your facts, I don't think that you will win.