Hi Soc! hope you are doing well.
we are still amidst our evaluation. i have had a second interview and my home study is coming up in two weeks. at the time of my last appointment, the evaluator wrote a letter to the judge letting him know that my ex had still not contacted her. i believe he has now tho..
i have a situation i could use your advice on:
i have discovered a new witness for my case. she is the mother of my daughter's best friend (i will call her missy). i thought she was friends with my ex and his wife, but recently she has shared some very disturbing information with me.
missy has slept over at my ex's house on approx. 4-5 occasions. most importantly she states that her daughter will never go there again and that she will no longer have any contact with my ex or his wife, unless at a school event, as not to upset the girls.
i called her a couple of weeks ago to invite missy to julie's (fictitious name for my daughter) birthday party. missy became very upset and stated that julie was her best friend, but she would not go to the party.
her mom asked her why and she told her that she never wanted to go over to julie's dad's house ever again. missy's mom told me about this on our second conversation and that she could not get missy to tell her what happen that made her feel that way.
last night, she told me everything. she says that missy finally told her that my ex made her very uncomfortable. she told her mother that he was looking at her in an unusual way and rubbing her arm and back, which made her very uncomfortable and upset. mom went on to say that prior to all of this, she has also seen some strange things between my ex and his teenage SD.
more over, she shared that there were many other things that bothered her about my ex and missy going over there. she said that the children are ignored and that BF and SM have little to no interaction with the children. they are sent to their room where they must stay and are sent to bed at 7:30pm (during the summer).
mom had called to talk with missy at 8:15 one of those nights and julie's dad said they were already in bed and that missy could not talk. mom did not like that she could not speak with her daughter.
missy's mom also says that it bothers her that my ex and his wife bad-mouth me there so much that it made her daughter uncomfortable and upset julie.
missy's mom has also gathered my ex's explosive personality, which makes her unsure about speaking with the evaluator. she is afraid of what my ex would do if he knew she had said these things.
logically, i realize that anyone the evaluator speaks with will be in the report and i am under the impression that he has the legal right to answer/dispute the things she says.
the most important issue scares me. i have had suspicions about this before, starting with the fact that my ex's addiction to pornography was a major factor in our separation. and that it was 'teen' porn that i always caught him looking at.
1. so... what do i do?
2. can she be a witness for the evaluator without my ex knowing she has spoken to the evaluator?
3. i haven't asked the children about any of this, i think a licensed clinician should do that. can i take them to a psychologist that can determine if anything has happened to them without telling my ex (50/50)?
>2. can she be a witness for the evaluator without my ex
>knowing she has spoken to the evaluator?
The mother's testimony is relevant to a custody eval, but in court it could all be excluded as hearsay, because its the child who has personally experienced the offending actions, not the mother.
I'd say that the evaluator will probably listen to the mother, if you introduce her into the case, but unless the evaluator actually gets testimony from the child, or some other evidene strengthening the credibility of the mother's testimony, the judge will likely ignore everything related to this issue.
>3. i haven't asked the children about any of this, i think a
>licensed clinician should do that. can i take them to a
>psychologist that can determine if anything has happened to
>them without telling my ex (50/50)?
I'd ask to have the child evaluated, and then your child separately so as to confirm both of their versions of the events. Even so, it will be difficult to prove this case. It would be quite another thing if the child said, "He made me play with his 'thing,' or something to that effect. But, at the moment, it's all just a little too ambigous.
Nevertheless, it's worth persuing a little.
ok, i cannot get my attorney to speak with me. she is very busy. and the email i got from her said i should ask the evaluator. the email reads:
"Obviously this is a very important witness and it must be provided to the custody evaluator. I would suggest that you ask her how you should proceed. Tell her that we have concerns with making sure that anything is reported in a manner consistent with what she would recommend. Tell her all of your concerns. That is the best person to listen to at this point.
Let me know what she says"
it seems lately, that any question i have my attorney says i should just ask the evaluator.
so in this situation, would it be best that when i do mention this to the evaluator, i stick with just what the child's mother told me and not mention my ex's history with teen pornography or my (and others)sneaking suspicions?
i wouldn't really call it suspicion... just that he is a little queer. and that coupled with the problems with pornography have led me to wonder.
1. so, keep my feelings out of it? like you said...
>I'd ask to have the child evaluated, and then your child
>separately so as to confirm both of their versions of the
>events. Even so, it will be difficult to prove this case. It
>would be quite another thing if the child said, "He made me
>play with his 'thing,' or something to that effect. But, at
>the moment, it's all just a little too ambigous.
2. is there no way to keep the witness' name out of it?
3. if not, i guess i will have to just be straight forward and ask her to please speak with the evaluator. would a letter from her be better?
on another note, i just got the correspondance in the mail today between the evaluator and the judge. the evaluator wrote the judge letting him know that she wasn't sure if she could complete the eval. since my ex had not even contacted her. the judge wrote her back with:
"If the father, mr. x, fails to contact you within one week of this letter, please proceed with the custody evaluation without his input. The court cannot allow a party to impede a case because of refusal to cooperate with the custody evaluation."
4. how can the evaluator proceed without his imput? how would that impact her decision?
5. if he does finally contact her, will this weigh heavily against him?
>1. so, keep my feelings out of it? like you said...
My opinion hasn't changed.
>
>2. is there no way to keep the witness' name out of it?
Not if you want to appear to be credible. Without a witness, you're just making stuff up.
>
>3. if not, i guess i will have to just be straight forward and
>ask her to please speak with the evaluator. would a letter
>from her be better?
No, better would be an interview.
>4. how can the evaluator proceed without his imput? how would
>that impact her decision?
The judge is telling the evaluator to declare you the winner by default.
>
>5. if he does finally contact her, will this weigh heavily
>against him?
How hard is it to win at tennis if your opponent doesn't show?
our home visit went well.
and i spoke with the evaluator about this witness and explained as closely word for word what this mother told me.
the eval. said that she really needed to speak with this person, because if she can verify that the other parent disparages me in the presence of the children, it is vital to her decision and that the court takes it very seriously.
so last night, i called the witness. she is willing to speak with the evaluator, but wishes to do so anonymously. she said the evauator can call her at home or she could call the eval., but did not wish to give her name. i gave her the eval. office number to call tomorrow.
the witness says that she must face the other parent on occasion at the school and did not want him to know she said those things.
1. obiviously, that will not work. the evaluator must know her name and document her name to complete the report, right?
2. will the evaluator even speak with her without knowing her name?
3. should i just give up on this witness? she has already told me if i subpoena her for testimony 'we are through'. i do not wish to do this to our children. they are best friends.
i suppose i understand to some degree why most people do not want to get involved in this, but at times it is frustrating. how can the court make an informed decision, when i can't get anyone to testify to what they have witnessed without jeopardizing relationships.
>1. obiviously, that will not work. the evaluator must know her
>name and document her name to complete the report, right?
Ask the evaluator. If I were the evaluator, I wouldn't be particularly interested in the statement of an anonymous informer, because I have no way of ascertaining if the person is simply making up a story.
>
>2. will the evaluator even speak with her without knowing her
>name?
Ask the evaluator.
>
>3. should i just give up on this witness? she has already told
>me if i subpoena her for testimony 'we are through'. i do not
>wish to do this to our children. they are best friends.
Frankly, this person epitomizes the old saying, "With friends like you I don't need enemies," so if it were me I'd tell her that she has information that is vital to my case, that it concerns possible abuse, that I intend to subpoena her if she will not volunteer it, and it will be up to her whether or not she decides to lie under oath.
the evaluator is an attorney
my attorney's office has finally reached the evaluator...
since the judge's letter (stating that the evaluator should proceed without his input if he doesn't contact her within a week) the other parent has contacted her, but has not initiated his portion of the evaluation.... made no appointments.
the person contacting her on my behalf didn't know about the letter, so did not ask how the eval. intended to proceed.
the evaluator told me during my home visit that the letter she got from the judge was 'typical' and she as many as 50 more like it... word for word. she doesn't think it means anything, except that he is aware what is going on.
the evaluator states that the witness in question has attempted to contact her, but when her receptionist told her that she would not speak with her without knowing her name, the witness hung up.
i would like to preserve the relationship with this person, because if i depose her she will never speak to me again and that also means that my daughter will not get to see her bestfriend outside of school again.
BUT, if it comes to the children OR the relationship with this person... I WILL DEPOSE HER. and soon, since i want the evaluator to have this information. it will be hearsay in court if i try to use her for trial.
1. is deposition court ordered appearance?
2. by the other parent just contacting the evaluator and not making an appointment, could he be attempting to drag this process out? since the judge's letter says to 'contact' the evaluator in a week.... not necessarily make an appointment.
his attorney is well known for twisting every word.... the evaluator told me this and that he is a 'sneaky snake'.
3. is it appropriate to ask the evaluator if the other parent explained why he has taken so long to contact her, when he called and to ask what he said. also to ask if he has given her an indication as to why he has not made an appoinment yet?
4. how do i encourage this process? i am told we cannot set a trial date until the evaluation is complete.
>1. is deposition court ordered appearance?
A third party witness deposition requires a subpoena, personally served on the witness with witness fees, stating the time and place where the deposition is to take place, a command for any necessary documents that must be produced, and a statement as to why the person is being deposed.
Failure to appear at a deposition, without filing a motion with the court to have the subpoena quashed or modified, is punishable as contempt.
>
>2. by the other parent just contacting the evaluator and not
>making an appointment, could he be attempting to drag this
>process out?
Does it really matter? If he doesn't do the eval, then the court will ignore his contribution, and he will likely lose his case.
>3. is it appropriate to ask the evaluator if the other parent
>explained why he has taken so long to contact her, when he
>called and to ask what he said. also to ask if he has given
>her an indication as to why he has not made an appoinment
>yet?
You're allowing this issue to bother you unnecessarily. Ask the court to provide a cut off date after which no further evaluation will be permitted.
>4. how do i encourage this process? i am told we cannot set a
>trial date until the evaluation is complete.
See above.
should my attorney request that of the court, or must i have the evaluator write the judge another letter?
>should my attorney request that of the court, or must i have
>the evaluator write the judge another letter?
If you think that you can get the evaluator to convince the judge to set a deadline without spending mo' money, then by all means, give it a shot.
Otherwise, your attorney will need to request it.
>>should my attorney request that of the court, or must i
>have
>>the evaluator write the judge another letter?
>
>If you think that you can get the evaluator to convince the
>judge to set a deadline without spending mo' money, then by
>all means, give it a shot.
>
>Otherwise, your attorney will need to request it.
>
our problem doesn't seem to be 'mo' money' but that she doesn't believe she has the power to pressure the other parent.
i remind you that the evaluator is an attorney and has been conducting custody evaluations for two years now, so is a little new, which my attorney loves because she is 'fresh'.
what is going on now is that since the letter from the judge, which was now two months ago, where the judge gave the evaluator permission to continue with the evaluation without the other parent's input, she has not done so.
the eval. states that the other parent has made no attempt to initiate his portion of the evaluation, yet she has no idea as to how she should proceed. she feels that she does not have the power to complete the evaluation recommendation without the other parent's participation. we are at a stand still.
i have however urged my attorney to at least file a motion to compel, which should come about in the next couple of weeks.
i am at a loss. i do not know what else to do to get this over with for our children. this has been going on for two years as of november.
i feel like opposing will attempt to rid us of this evaluator and request a new one. i am growing very old with this case... and that would be very frustrating.
do you have any other suggestions?
>i feel like opposing will attempt to rid us of this evaluator
>and request a new one. i am growing very old with this case...
>and that would be very frustrating.
>
>do you have any other suggestions?
Instruct your attorney to ask the court to order the evaluator to complete the review forthwith, with whatever evidence has currently been discovered. Then, move for sanctions, against the evaluator to pay your litigation costs for the eval and for the next eval if it's required, if the evaluator fails to comply.
Not much else you can do. Although you could ask the court to waive the eval entirely on grounds that the other parent has refused to cooperate, and create a presumption that the other parent acts against the child(ren)'s best interests, and that the burden of proof should be on the other parent to demonstrate why custody should not be changed in your favor.
some other concerns that i have are that the evaluator really has not spoken with any of my witnesses.
in my initial interview, she stated that she felt the teachers on my list were the most important witnesses, but according to them, she has not contacted them.
also, during our home visit, she did not speak with the children. we were all at our dining table where the kids were playing a game and i showed her around the home.
later i called her office to see if i would need to set up an appointment for the children to meet with her and the receptionist stated that she usually speaks with them during the home visit.
i told the receptionist that she did not speak with them and she said that if the evaluator needed more time with them she would call me to request such an appointment.
should i be particularly concerned about all of this?
any advice? wouldn't filing sanctions against the evaluator hurt my case?
>some other concerns that i have are that the evaluator really
>has not spoken with any of my witnesses.
>
>in my initial interview, she stated that she felt the teachers
>on my list were the most important witnesses, but according to
>them, she has not contacted them.
>
>also, during our home visit, she did not speak with the
>children. we were all at our dining table where the kids were
>playing a game and i showed her around the home.
>
>later i called her office to see if i would need to set up an
>appointment for the children to meet with her and the
>receptionist stated that she usually speaks with them during
>the home visit.
>
>i told the receptionist that she did not speak with them and
>she said that if the evaluator needed more time with them she
>would call me to request such an appointment.
>
>should i be particularly concerned about all of this?'
Yes.
>
>any advice? wouldn't filing sanctions against the evaluator
>hurt my case?
I would do as I have already suggested. If the evaluator hasn't interviewed your witnesses, then she won't have anything to report. Then, you can put her on the stand and have your attorney question her as to why she never contacted any of the witnesses presented, and then, you move to have her removed by the court for incompetence and ask the court to order the evaluator to pay your litigation fees.
Or, you can just go along with the program and hope for the best. Personally, it seems to me that this evaluator is a supreme flake.
The motion to compel/sanctions hearing is on nov. 9th, but i just called the evaluator's office and found out the other parent has FINALLY called them and set up an appointment.
the evaluator's assistant said she would call me to let me know if he does not show up or does not pay them.
so... he did not comply with the original order, the letter from the judge to contact the evaluator within 7 days, but has finally done so when we filed a motion to compel.
1. how much does this weigh against him with the evaluator?
2. so now we should cancel the hearing?
3. do you have any other suggestions?
>1. how much does this weigh against him with the evaluator?
Probably won't have a lot of weight if he follows through, going forward.
>2. so now we should cancel the hearing?
I'd go through with the hearing and suggest that the other parent's stalling has cost you time and money, therefore, he should be ordered to reimburse you for requiring the hearing.
>3. do you have any other suggestions?
Nope.
my attorney really would like to stick with this evaluator, since the other parent has stalled so long, which seemed to irritate her(evaluator).
so regarding the fact that the evaluator has not contacted my witnesses yet... which you said i should be concerned about...
my attorney was concerned as well, and suggested that since keeping this evaluator may be beneficial to us that i should take steps to ensure that she hears from my witnesses and get them to write letters to her.
it was very difficult to approach teachers in the first place and explain the circumstances, asking what kind of information they would have to offer to the evaluator. now i must ask them to write letters?
1. could it possibly be that the evaluator waits until she has interviewed both parties before she speaks with my witness, so that she may be thorough... that she may have more questions for my witnesses after speaking with the other parent?
2. do you also think that i should go ahead and get letters from the witnesses?
3. what information should the letters contain? (ie from a teacher) what would the evaluator wish to hear?
thank you!
>1. could it possibly be that the evaluator waits until she has
>interviewed both parties before she speaks with my witness, so
>that she may be thorough... that she may have more questions
>for my witnesses after speaking with the other parent?
Too speculative. I can't comment.
>
>2. do you also think that i should go ahead and get letters
>from the witnesses?
Your attorney seems to think so -- you have nothing to lose. The letters are inadmissible hearsay, but in the hands of the evaluator, they may end up becoming convincing partis of the final recommendations.
>3. what information should the letters contain? (ie from a
>teacher) what would the evaluator wish to hear?
The evaluator will ask for more if the letters demonstrate something important to the case. So, you are looking for things that affect the children's best interests, and which make you look good, or the other parent bad. But, most of all, it needs to be the truth.