File a Motion??

[TPK]

Soc,

My visitation has been Weds 3-7pm in NY at wife's brother's house, every Sun 9:30 am to 6pm also at brother's house in NY and EOW in NJ from Sat 9:30am to Sun 6pm. I have been doing ALL the traveling.

Her brother flaked out on me and no longer wants to play host Weds. and Sundays in NY. That leaves me with EOW in NJ now.

Our next court date is not til July 12th. I want my parenting time increased to EOW from Fri. 12 noon to Monday 10am with a halfway point established for transfer.


1. Can my attorney file a motion to increase parenting time NOW, or do I have to wait til the divorce is finalized?


I just want to know if I can get into court and get this done without having to wait til the divorce is over. It appears wife will settle on nothing, and this could go to trial which might not be til next year.

2. If I can file a motion to be heard now, what is it called??

My attorney is hard to get ahold of, so that's why I came here to ask.

Thank you

TPK

[socrateaser]

>1. Can my attorney file a motion to increase parenting time
>NOW, or do I have to wait til the divorce is finalized?

Judges usually deny attempts to modify temporary orders before final judgment, unless the other party is the cause of the problem. In your case, I think you have a good argument for modifying to unsupervised visitation, because your wife's delegate has created the problem. However, getting visitation increased beyond that which was originally set, will probably be a waste of time -- although I'd ask for it, since you have a reason to get in front of the judge -- I just wouldn't expect it to be granted.

>2. If I can file a motion to be heard now, what is it
>called??

Motion to modify temporary orders. Grounds are changed circumstances (host refuses to act as such).

[TPK]

The visits at her brother's house were not intended to be "supervised" so to speak. If you remember, wife kept child from me for 4 months. Judge who gave me the visitation was in Orange County, we're now in Ulster County with a different judge.

The Orange County judge wanted me to get to know child again so she gave me the Weds & Sundays in NY. When we were in front of that judge again we asked for weekend overnights. She gave us the Sat 9:30 to Sun 6pm in NJ which was what the Judge for the TRO hearing was set to give us on 11/1/04.

I could've stopped going to NY at that point but wife's brother and his family wanted to keep seeing my child so I kept going there. Brother hates my wife. He kinda hinted it was time to stop coming to his home after 5 months. I think he's sick of the whole mess at this point, I can't blame him.

I can't go to NY on Sundays now, there's no place for child to take a nap, no place to change a diaper etc, no home for me to go to.

My visitation is probably "minute orders" and were only intended to be temporary.

Does any of this info change your opinion?


Thanks

TPK

[socrateaser]

>Does any of this info change your opinion?

If wife's brother dislikes his sister so much, would he be willing to testify that you are an exemplary caretaker when with the child? If so, then you might be able to get overnights now. Brother wouldn't need to testify to anything regarding his sister -- but his perception of your parenting skills could be useful, because he is not ordinarily a witness, likely to be friendly to your cause.

[TPK]

Soc,

I have overnights now EOW Sat to Sun, the OC Judge gave me that. What I'm asking for is an increase to Fri to Mon now that I don't have child every Weds and Sun in NY.



I suppose I could get him to testify if needed, he does believe child would be better off with me. I was hoping I wouldn't need his testimony because I didn't think Fri. to Mon. was asking for too much.

Now that wife won't get alimony, she'll need to work more. I thought by asking for Fri starting at 12noon it would give her another full day to work. She admitted she's working at some dept. store when I have child EOW. Returning child on a Monday at 10am would give wife Fri-Sat-Sun to work to support herself.

Am I being unreasonable here??

TPK

[socrateaser]

>
>I suppose I could get him to testify if needed, he does
>believe child would be better off with me. I was hoping I
>wouldn't need his testimony because I didn't think Fri. to
>Mon. was asking for too much.

Any significant modification, without some adverse action/inaction by the other parent as a justifying cause, will likely be too much for the judge, who will resist (as will your attorney) any attempt to modify the temporary orders. You need a good reason, and I'm not seeing one appear.

Brother should not testify that he thinks child would be better off with you, or at least you shouldn't predicate his appearance on the possibility that you might ask his opinion on the issue (likely inadmissible, anyway).

The only thing you want brother to testify to, is that he has observed an involved, loving and committed father caring for his child. In short, just the facts, not brother's conclusions about what those facts indicate.

>Now that wife won't get alimony, she'll need to work more. I
>thought by asking for Fri starting at 12noon it would give her
>another full day to work. She admitted she's working at some
>dept. store when I have child EOW. Returning child on a Monday
>at 10am would give wife Fri-Sat-Sun to work to support
>herself.
>
>Am I being unreasonable here??

No, but like I said, the judge ain't interest in reasonable at this point. He has other temporary order motions to hear and you had your shot. You merely want to mitigate the situation caused by the brother's unwillingness to continue acting as a site for the visitation. But, remember, the judge could just tell your attorney, "Take the child to a motel," and that would be the end of your motion.

[TPK]

>
>Any significant modification, without some adverse
>action/inaction by the other parent as a justifying cause,
>will likely be too much for the judge, who will resist (as
>will your attorney) any attempt to modify the temporary
>orders. You need a good reason, and I'm not seeing one appear.

My attorney has always insisted we would ask for an increase and feels we'll get it. He doesn't believe we'll get it willingly from wife and her attorney, but anything we've gotten so far in NY has been from a judge and not from my opponent. I have gotten everything I wanted so far in NY, and wife has lost on everything. Wife's denial for increase in time was because the "child is an infant". Her own attorney corrected her by saying "the child is 13 months now, she's not an infant". She's almost 14 months old now.


>
>No, but like I said, the judge ain't interest in reasonable at
>this point. He has other temporary order motions to hear and
>you had your shot. You merely want to mitigate the situation
>caused by the brother's unwillingness to continue acting as a
>site for the visitation. But, remember, the judge could just
>tell your attorney, "Take the child to a motel," and that
>would be the end of your motion.


I haven't had "my shot" in front of this Judge yet. Venue was transferred from Orange to Ulster County. The OC judge gave us an increase in just 6 weeks from Weds and Sundays to overnights in NJ. I have little reason to doubt Judge would've increased it more as a permanent order if she had heard the divorce case. She was well aware that wife had secreted herself and child from me for 4 months. The visitation she gave us was for me to get to know child again.

It seems that I should not file a motion NOW based on what you've pointed out here. Rather I should just wait til July 12th or whenever the divorce proceedings begin, then we'll address the court on permanent visitation. I do like my chances.


1. If needed, can I have someone other than her brother testify??ie my mother or father, or my brother or my sister-in-law??

Thanks


TPK

[socrateaser]

>1. If needed, can I have someone other than her brother
>testify??ie my mother or father, or my brother or my
>sister-in-law??

Anyone can testify, but the best witness is someone who would ordinarily be testifying against you. So, your sister-in-law or your brother-in-law are the better choices. Your blood relatives' testimony will carry little weight with the court.