School pictures being withheld with payment

[onedaddy]

We live in NY.  Divorce states DH and BM shall share joint custody of the children with BM primary residence and DH alternate residence... Parties shall confer on all matters of importance relating to health and education.  We sent a copy of this to the school and they send us all information regarding the children including order forms for school pictures.  We sent a check directly to studio after we called and explained our situation.  Studio sent pictures to school who sent them home to BM almost 2 months ago.  Studio and school said for the safety of the children they are not allowed to release photo's to any place other than childrens residence. There is nothing they can do about this without a notarized consent from BM. We would have to eat the money and maybe we could get their spring pictures.

1)  What recorse do we have?

[socrateaser]

>1)  What recorse do we have?

Well, as a practical matter, the school no longer has the photos, so going after them will not get you what you want.

Before I discuss what your options might be, tell me why the BM won't send you the pix? Can't you just go over and get them?

[onedaddy]

Before I discuss what your options might be, tell me why the BM won't send you the pix? Can't you just go over and get them?

We are currently in a custody battle with BM and we have a small claims case pending against her. She has attempted to not pay bills she was required by the court and found in contempt.  She took out a $5,000 loan using DH's ss# and then allowed it to go into default.  She had DH falsely arrested 2x, etc, etc., etc.  We have no verbal contact with her.

I doubt she even still has the whole package intact.  The school was made aware of our situation at the beginning of the year and should not have sent these pictures home to her.  The payment was made directly to the studio.

[onedaddy]

BM also moved 90 miles away.

[socrateaser]

>Before I discuss what your options might be, tell me why the
>BM won't send you the pix? Can't you just go over and get
>them?
>
>We are currently in a custody battle with BM and we have a
>small claims case pending against her. She has attempted to
>not pay bills she was required by the court and found in
>contempt.  She took out a $5,000 loan using DH's ss# and then
>allowed it to go into default.  She had DH falsely arrested
>2x, etc, etc., etc.  We have no verbal contact with her.
>
>I doubt she even still has the whole package intact.  The
>school was made aware of our situation at the beginning of the
>year and should not have sent these pictures home to her.  The
>payment was made directly to the studio.
>

OK, the question is, what did the paperwork from the school/studio state regarding delivery of the photos? If you gave the studio money, knowing that the studio would send the pictures back to the school, then you can't sue the studio, because it executed its contract by doing what it promised. If the contract/form/whatever promised that the studio was to deliver the photos to you, and that didn't happen, then you can sue the studio unless they send you new pics -- it's not your job to go get the pictures from your ex -- it's the studio's.

If the contract states that the school will receive the pics and then they will send them to you, then the school is probably on the hook and you can sue the school.

It really boils down to what you can prove in terms of the contract and how delivery of the pics were promised to be made.

Not enough facts for a final conclusion here.

[onedaddy]

The contract/order form states nothing more than types of packages/pricing and the fine print says: We guarantee our portraits....Checks will not be accepted unless your name, address and phone number are printed on them. There is no word about delivery of our purchase

Our returned check has our address circled if that means anything.  We live very far away and maybe when they saw it a red flag went up.

They will reorder pictures only if
A:  We pay them again
B:  BM gives them a notarized statement permitting them to do so

1)Why do they need consent from BM?

 

[socrateaser]

>The contract/order form states nothing more than types of
>packages/pricing and the fine print says: We guarantee our
>portraits....Checks will not be accepted unless your name,
>address and phone number are printed on them. There is no word
>about delivery of our purchase

I assume that by "we guarantee", you mean the studio? If the form is preprinted by the studio, and you printed your address on it, but the studio mailed the photos to the school instead and the school to the other parent, and the studio didn't state that they would deliver only to the school, then, under the Uniform Commercial Code, the studio never delivered your photos, and therefore, the studio has your money, but has breached its contract.

Send a letter to the studio demanding that either they provide you with the pictures within 10 days or refund your money in full, and if they don't, sue them in small claims for breach of contract.

If the studio doesn't want to pay, then the studio will have to sue the school, or your ex, but that's not your problem. You paid the studio for photos and you never received them. End of story.