Mom is taking me back to court

[durandal]

Hello again,

Its been quite some time (2yrs) but once again mom is taking me back to court.

I am BF w/ physical custody and joint legal custody of a 3 yr old daughter, BM has filed two show causes. All parties reside in Virginia. First show cause is for failure to provide 30 days notice (to court and BM in writing) when leaving for purposes of visiting relatives/vacation. Second is for failure to allow phone visitation on a "every-other day" schedule. Court date is scheduled for early November.

The first show cause is a problem because our trip was planned hastily- I tried to contact the BM, left messages on her cell-phone (which she can always check); but I did NOT follow the court's ruling for the 30 days notice. We are allowed two weeks vacation, and that's how long we were gone, but I did not inform the court or the BM in writing. Why I was not able to follow at this to the letter is explained in the next paragraph. The second show cause for phone visitation has no basis - the phone was available and she didn't (nor does she now) call on a consistent basis. Again, I will explain the main reason why below.

The BM is homeless and currently resides in a shelter, or outside when the weather permits. She has a prepaid cell phone which almost never has time on it to make calls, but she can ALWAYS receive text messages. She calls when she wants to, usually on her two-day schedule but often skipping several days or a week in between. Point is her phone visitation is very inconsistent. She is also supposed to have her for alternating weekend visits and every other thursday overnights, but since she had an apartment at that time but now is homeless, this is no longer possible.   She has been homeless now for over a year, and despite this I make an effort to let our daughter spend as much time with her as possible, usually weekend days (when the BM attends church-outreach functions) or on the rare occasion when the BM can afford to stay at hotels overnight. Her last visit was two weekends ago when BM and daughter attended church on a Saturday - I even went out of my way to pick up and drop off both of them at the event.

So she too is in violation of the court ruling regarding visitation due to the fact that she doesn't keep her visitation schedule, but from what I understand the court won't care if she doesn't choose to visit, just if she is refused visitation, which she is not. Besides, I don't think the court will view me favorably if I decide to argue the case on the basis of her homelessness. She is also in violation because she was ordered to pay child support at the time of the initial court ruling, which has been two and one-half years, was ordered by the court at that time to "find employment" and to pay support, but has failed to do so. I have yet to receive one dime for contribution to our daughter's wellness and upkeep.

Questions:

1) What do you think the court may do regarding the 30-day notice issue?
2) What ways might the courts modify the current schedule?
3) Do you think I should file show causes of my own, specifically for child support, so this issue can go before the judge at the same time?

Any other advice is greatly appreciated!

Durandal

[Kitty C.]

My first question is..........where in the he!! is she getting the money to file the show causes?  Sounds like she is getting some free 'assistance' from somewhere.  My second:  can you better explain the reason for not giving 30 days notice?  Because I'm not quite understanding it.  I get it that she might be difficult to get a hold of, but why was it less than 30 days to begin with?

If the trip was short notice, the court will want to know why and also proof that you did try to contact her about it.  If it was because of family events (wedding, funeral, etc.) or because of circumstances with your employer (use it or lose it time off), they may consider it legitimate.  But if you just decided on the spur of the moment to take off, who knows how they will react to it.

You can certainly file a show cause for everything she has failed to do...it just makes sense to get as many issues addressed as possible while you're there, as the judge and court may not look too kindly on 'frequent flyers.

[ocean]

Kitty- By me it is free to file but since she is homeless she may have a lawyer.

If those are the only two things she addressed they should not be changing anything about the visitation schedule since she is not asking for it. You can counter for the child support but really if she has no job, why bother? Is it court ordered now through the state? If not , ask for it to go through the state and they will keep records of how much she owes. You can counter with reduced visitation since it has been a year of her not taking child on reg basis BUT do you want to open that can of worms now?

The 30 day notice, they will most likely tell you not to do it again. Just explain that you decided XX days before and you immediately called mother (bring your phone records) and that you kept to the schedule of not being away more than 2 weeks and she knew where child was with your calls.

Just in case, bring calendars with when she has had child. Keep records of when /where/ and how those visits took place but that should not be allowed to be brought up since she did not ask for a change. If she does then ask for a continuance since you were not notified of that and can come prepared.

[Giggles]

Does BM have a permanent address?  If not, then I would also use that.  How can you send her a written notice with no address??

I really wouldn't worry too much over this, in fact I think I would offer BM makeup time and if you could afford it, maybe swing for a cheap motel room??

With her being homeless...there is no chance of a custody overturn.

[durandal]

Kitty
My first question is..........where in the he!! is she getting the money to file the show causes? 

Ocean is correct in that it is free here. But then again I'm sure they're would be a fee involved if I were to file one...

Sounds like she is getting some free 'assistance' from somewhere.

She really doesn't need assistance, she's a career expert at gaming the system, the court system is no exception. But she might be getting assistance, because she is trying to get disability status. Wonder why she would want that? (Really I'm just being sarcastic.)

My second:  can you better explain the reason for not giving 30 days notice?  <o:p></o:p>
We didn't know that my mom was going to be able to look after Jasmine until three weekends before the visit, it was two weekends when I got final confirmation from my mother about the arrangements, and that same day (and thereafter) was when I tried to contact the BM. She had a pretty unique opportunity to meet with both her grandmother and great grandmother, which might not ever come around again.

You can certainly file a show cause for everything she has failed to do....court may not look too kindly on 'frequent flyers.

Yes, but really what could I hope to gain out of filing any show causes? She is 1) already in the social services child support collection database, has been for over a year and is already twenty-nine months in arrears with me and many years behind with her other siblings; 2) doesn't have a job so there is no reasonable expectation of collection; 3) has an excuse for not working (a joint with a metal plate in it), although it never hinders her from any activity in which she wishes to participate, and 4)
As it stands now, I go out of my way to provide a venue for the child to stay connected to her mother, including paying for hotel rooms so they can have occasional overnight visits, allowing the child to attend church outreach functions with the BM irrespective of which weekend they fall on, and even to the point of shuttling the BM from the shelter (or wherever she happens to be at the time) to the church and back.

Ocean
If those are the only two things she addressed they should not be changing anything about the visitation schedule since she is not asking for it. You can counter for the child support but really if she has no job, why bother?
I do see one possible motion which may be feasible, and that is to modify the schedule to disallow overnight visitations until she gets a stable home and income, and change the frequency from every other weekend plus a weekend overnight to some other equitable frequency. But one thing I will no longer do as a result of this is pick the BM up – from anywhere. If this is how my attempt at flexibility is repaid then she can forget me ever doing that again. And no, I'm not so sure I want to get involved in modification at this point, because I really have no way of knowing which way the wind will be blowing that day, whether the stars will be aligned or not, and from which side of the bed the judges' feet will come to rest.

Just in case, bring calendars with when she has had child. Keep records of when /where/ and how those visits took place but that should not be allowed to be brought up since she did not ask for a change. If she does then ask for a continuance since you were not notified of that and can come prepared.

Excellent idea, I will do just that.

Giggles

Does BM have a permanent address?
No, she doesn't. The first mention of any new address was the one she used on the court filings. I'm almost certain the court doesn't have this new info either, and I'll go down there to check next week just to be sure. I can only take the "address issue" so far, and I can't do this to say "oops, couldn't get a hold of ya" because in reality we still maintain contact via text and phone. So to try to say I couldn't notify her in writing might just backfire, since all I had to do was ask where I could have a letter delivered to or something to that effect. Am I reading that one right folks?

I really wouldn't worry too much over this, in fact I think I would offer BM makeup time and if you could afford it, maybe swing for a cheap motel room?

I wouldn't have a problem with this but were it for the fact that it is the BM who is not keeping pace with the visitation schedule. I am allowed two weeks travel with the child in the original agreement; my screw-up was in not notifying her. It's very likely that the BM wasn't planning to see the child during that time anyway. (UPDATE: As of yesterday the BM has already asked me for permission to take the child to another church outreach function, and as usual I will agree).

A cheap hotel room – oh my, what would the neighbors think? Seriously, I've been doing that for them all along. I don't even want to bring it up in court, because knowing the BM she will try to spin it as something between the two of us and not herself and the child - which it is definitely not (between us I mean). The hotel room is something that will have to stop. It's not the cost, it's that I'm spending my very hard earned money for what – to be hauled down to the courthouse? If we are going to get hotel rooms for their visits in the future, it will have to be a Dutch event, period. You know what's really sad? The child, now three, has come to believe that hotels are where mom lives - whenever we pass a hotel, she says "that's mommies' house".

With her being homeless...there is no chance of a custody overturn.

Truth is... that never even crossed my mind. I know that I have a significant advantage, but really it's not about all that. I mean, I'm grateful to be able to provide for our little one, but really I'm trying to make the best of a screwy situation for a innocent little child full of love for two grown idiots. I'd like to think that I'm a little less of an idiot, but who really cares? I just want our child to grow up and have the best life possible, and that means without a totally screwed up childhood.

I'm starting to get choked up now, thanks for the help and please keep helping – not just us, but all these poor souls.

[durandal]

Sorry about that garbled post - things have changed on this site.

[Giggles]

No Problem, I was able to read it.

As for the address issue, you proably could still push the point that you didn't have her address and if she moved (or even has a permanent address) then the onus was on HER to provide it to you!!

Seems to me she is cutting off her nose to spite her face.  Since she is "homeless" then I would push for supervised visits (no overnights) until she is more stable.  I also would stop paying for hotel rooms...it's sad that you're trying to do the right thing and she is taking advantage.  Push the CS issue.  How many men would be able to get away not paying support?

Good Luck!!

[awakenlynn]

Just really let the judge know that this was a unique circumstance and when you found out, your first step was to attempt to notify her.  If you can show you have followed the court order every where else and all the extra's you have done, it should help. 

You (or your attorney?) try to show that her case is a frivolous lawsuit too.

[gemini3]

I wouldn't stress about it too much.  Just go in there with your phone records, say that it was a last minute trip for your daughter to meet her Grandma and Great Grandma, and that you notified your ex on "date". 

You might throw in there "Your honor, I admit that it's been hard for me to get in touch with BM, as she is currently homeless and living in shelters.  However, I did attempt to notify her on xx, xx, and xx, and left her phone messages.  I have a copy of my phone records for you." 

The judge will probably just tell you not to do it again.

Also, the burden is on her to prove that you are not allowing her phone calls.  She will have to have some proof that she has been calling you and you have denied her requests to talk to your daughter.  Our judge (we had the opposite - BM was denying my husbands calls) ordered a specific time for phone calls, so that's a possibility, but it doesn't matter since she doesn't call.

[MrCustodyCoach]

First, I would make sure that I don't hastily make plans in the future.

That said, I don't think you suffer any significant consequences from the court given her predicament.  Apologize to her and the court and promise it was an aberration that won't happen again. 

As for the phone issue, I think she'll be hard pressed to prove you're interfering with anything there.  And continue not to.