help.. with after court issues..

[MISHELLE]

Soc
   State California
 Evidenciary hearing was scheduled Tuesday May 11th, in which a settlement was reached before court, bm agreed for father to pick up minor child at school on Tuesdays until 7 pm and on Fridays at school with a return to school monday morning.  
 
Today bm calls 3 hours after weve picked up step son and is yelling that dh has kidnapped son and is in contempt of court order, even though she agreed to this on record with judge, and agreed this would start immediately.

 Bm said she will not agree to  this in writing and we can just take her back to court.  We verifed all pick up times prior to picking him up. (also she refused to allow dh to pick son up at school this past friday, he had to go to her home and get him)
 
we did have a clause added that if no order is signed we can return by 5 day letter to judge. (as she dragged out signing of order for 6 months last time)

  1. should we file our 5  day letter and get us in front of judge ?
 2. Does entire agreement get tossed? And new hearing scheduled?(she is disagreeing with entire order)
3. Can judge make an order since she all ready agreed.?
4. What else should we do?

Thanks
Mish

[socrateaser]

>  1. should we file our 5  day letter and get us in front of
>judge ?

In CA, an agreement by the parents in open court before the judge is identical to a written stipulation. But, you must get a court order confirming the contents of the parties' agreement or you won't have anything to show the sheriff if you need to defend/enforce your rights.

[MISHELLE]

Soc,
   Our atty.. sent over order to be reviewed and signed by bms attorney, as per our settlement agreement at hearing,  we received order back with tons of revisions.
Basically they changed everthing back to how it was in our last Court Order.  Even though mediator was very clear father should have more time.  mediator stated " it is recommended  with great respect that fathers time with child increases"

 Dh's atty and him have played phone tag all day and so we wont know anything else until monday.
 So...
           1. What now?
           2. Can she legally change her mind and the order as it was written exactly how we agreed.
           3. Is this a good example of her unwillingness to compromise for the best interest of the child in the eyes of the court. (california)
            4. Can we get an all new evidenciary hearing based on her backing out of the settlement?

Thanks
Mish.
         

[socrateaser]

>           1. What now?

Change it back and get read to go to trial, or sign it and settle.

>           2. Can she legally change her mind and the order as
>it was written exactly how we agreed.

She can if you agree. If you don't then she can only change her mind as to those issues that were not expressly agreed to in open court.

And, to be clear, it's not enough for her attorney to agree to something in open court. The party must state agreement on the court reporter's record.

>           3. Is this a good example of her unwillingness to
>compromise for the best interest of the child in the eyes of
>the court. (california)

Maybe, but courts almost never enforce Cal. Fam. Code 271 -- this would be a case where it would be fairly clear cut.

>            4. Can we get an all new evidenciary hearing based
>on her backing out of the settlement?

Maybe, but it would probably just be an enforcement hearing to check the court record and make appropriate orders. It's not gonna get that far. If your attorney tells hers that he will get a copy of the transcript and demand that she either sign the order as agreed to in open court or he will go to hearing and ask the court to order her to pay all your litigation costs, then her attorney will advise her to settle or get ready to open her checkbook.

And, she will probably settle.

[MISHELLE]

Soc
      She agreed at our eveidenciary hearing, and her parents are fitting the bill therefore she could care less of the cost.
 
      She said that she realizes that she agreed to those terms during the evidenciary hearing, however since then she has changed her  mind. So she is aware as is her atty of what she agreed to .
     
    We would not mind another eveidencary hearing, and we will not except her terms.
 
     1. So should we assume that a hearing for the purpose of enforcement will likely be next. ?
   
 Thanks
Mishelle

[socrateaser]

>     1. So should we assume that a hearing for the purpose of
>enforcement will likely be next. ?

Yep. I would be informing her attorney that you intend to move for the court to order the agreement made during the last hearing, and that you will request reasonable attorney fees and costs of suit necessary to enforce that agreement.

[MISHELLE]

soc
 ok so i spoke with parallegal in atty office today and she said that since budget cuts there are no court reporters in trials unless we were to pay for one (which we did not) didnt realize they werent automatically there.
our attorney has about had it with this case and bms selfishness. (which is like "no kidding that is why were here!")
parallegal said,
          OPTION 1 we may either go back in front of judge (and of course pay more in atty fees, which is fine)  and have her rule on situation  or
           OPTION 2  send in a copy of the parenting plan that we agreed on with a cover letter to judge explaining situation and also send a copy of parenting plan of bm and ask that the judge make the decision on which order to sign.

 1 which option should we take?
 2  if we choose option 1 can we only ask that we get what was originally agreed for or can we ask for what we were originally asking for  before settlement (or joke of settlement you could say)

Thank you
Mishelle

[socrateaser]

This "trial" to which you refer, was it actually scheduled on the court's calendar as a "Trial?" Or, was this a pre-trial conference, or some other motion hearing?

The question is very important to how I will answer you.

[MISHELLE]

soc

      it was a scheduled evidenciary hearing on calendar, supeonas went out to witnesses and everything (even though they were not used)as that is what they do in our county.

thanks mishelle

[socrateaser]

Your facts state that no court reporter was provided, and that the paralegal indicates that this is a governmental budgetary issue.

In a civil action, such as family law, it has ALWAYS been the responsibility of the parties to obtain a court reporter. The reporter is not simply provided, as is the case in a criminal action.

For an attorney to allow an evidentiary hearing without a court reporter present falls below the standard of care due a client from an attorney, who is unarguably considered an expert at matters of law, and who owes a high duty of care to zealously advance the interests of his/her client.

Therefore, based on your facts as posted, my humble opinion is that your attorney has committed malpractice.

In CA, every hearing ends with the judge's clerk writing a minute order, which is a quick summary of the important findings and orders made during the hearing. The minute order from your hearing should, at a bare minimum, state that the parties came to an agreement on custody issues, and the order may state the important points of that agreement.

If the minute order does not state these things, then you did not reach an agreement in open court, rather it was reached in the courtroom hallway or in some conference room. It is inconceivable that the minute order would not contain, at least, a reference that the parties reached agreement in open court, unless said agreement never occurred.

If you agree that everything I am describing sounds accurate as to what has taken place, then I will draft a letter to your attorney for you, because, frankly, it should now be entirely HIS/HER problem (and his/her cost) as to getting your agreement ordered.

Let me know if you think I've missed something important here, I don't want you to challenge your relationship with your attorney, unless he's really messed up, as it appears he may have.