Mediation strategy

[hoosierpapa4]

Indiana
Divorce was settled 1999

Currently before the Court is:

Modification of Custody
Modification of Child Support
Verified Motion for Contempt (3 counts)

Current custody arrangement is 3 of 7 with Father, 4 of 7 with Mother, Joint Physical Custody and Joint Legal Custody - primary physical with Mother.

Judge has recommended Mediation.  Motions for Mod of Custody and Child Support have been before the Court since March of 2003.  Finally get to Mediation the middle of this month.  Court date set for Aug if Mediation doesn't work.

Modification of Custody is based upon the following facts:
1) DUI - mother - actually stated to police officer that she is legally blind.
2) Driving on suspended license with children in vehichle.
3) Sleeping with 10 year old son.
4) Withdrew 17 year old daughter from High School when school was coming after her for truancy violations.
5) Buys cigarettes for 17 year old - daughter is only in mothers care.
6) Mother smokes in home with asthmatic child.
7) 15 year old is failing in school - daughter is only in mothers care.
8) I have remarried, have another child, wife is going to school to be a teacher.
9) 12 and 10 year old boys have excelled in my care 3 of 7 days.
10) Teacher of 10 year old had him last year, he went from principles list of troubled children (while in mothers care) to DEANS LIST and most outstanding improvement in my care.
11) I work from home, and can supervise at all times.
12) 33 Police reports at Mothers home (in 9 months), all negative including day care provider as "suspect".
13) GAL withdrew.
14) Youngest sons councellor reports that the boys are doing very well and thriving under care of father.  Daughters are ordered to be at councelling but mother withholds them - another contempt.
15) Councellor is "horked off" at Mother for not following Court Ordered recommendations.

Too many others to mention.

I have not been to mediation before.

Questions:

1) I would like physical custody of our sons, liberal visitation to mother (3 of 7) so that I can continue to ensure that their education is kept at the forefront, seeing how two of my four children (with x wife) have FAILED at school, or are in danger of failing, how do I present this in a positive light other than having the teacher come and testify?

2) I would like to have our sons in my care during the school year from Monday Night after school until Friday night after school, to ensure that they get their homework done, will this be perceived as negative?

3) My eldest daughter is 17, will be 18 soon, after 4 months of not attending school and working, I can move for emancipation of a minor, should I attempt to include this as a condition which forces a modification of child support, or should I wait until the event occurs before petitioning the court for emancipation?

[socrateaser]

>1) I would like physical custody of our sons, liberal
>visitation to mother (3 of 7) so that I can continue to ensure
>that their education is kept at the forefront, seeing how two
>of my four children (with x wife) have FAILED at school, or
>are in danger of failing, how do I present this in a positive
>light other than having the teacher come and testify?

You can ask that the report cards be admitted into evidence, for the children in your ex's care as well as for the children in yours.

However, it would be FAR better to have the teachers testify, because they are experts and can state their opinion as to why the children are doing well/badly. So, consider this seriously.

>
>2) I would like to have our sons in my care during the school
>year from Monday Night after school until Friday night after
>school, to ensure that they get their homework done, will this
>be perceived as negative?

Not that I can see. Not even sure why you would ask this question, it seems self evident as positive.

>
>3) My eldest daughter is 17, will be 18 soon, after 4 months
>of not attending school and working, I can move for
>emancipation of a minor, should I attempt to include this as a
>condition which forces a modification of child support, or
>should I wait until the event occurs before petitioning the
>court for emancipation?

Don't touch support until you have a custody mod in your favor, or you will be perceived as interested in "de money" rather than your children's best interests.

Finally, you are overlooking the big ticket item, i.e., buying cigs for a minor is a crime, and it is an affirmative act against the child's best interests, demonstrating extremely poor judgment. You could get custody on this single issue alone, if you can prove it, which could be difficult to do. But, if you can, don't overlook it, because everything else is chump change by comparison.

[hoosierpapa4]

>Finally, you are overlooking the big ticket item, i.e., buying
>cigs for a minor is a crime, and it is an affirmative act
>against the child's best interests, demonstrating extremely
>poor judgment. You could get custody on this single issue
>alone, if you can prove it, which could be difficult to do.
>But, if you can, don't overlook it, because everything else is
>chump change by comparison.

It's interesting that you observed that this is "extremely poor judgement" on the part of her mother.

One of the main arguments that I have is that it is in poor judgement that:

Mother has withdrawn daughter from High School

Mother buys cigarettes for daughter withdrawn from High School

That second daughter is failing (at best 616th of 621 students by rank) and she does nothing about this (tutoring, summer school, etc.)

That second daughter was stabbed in the head when a 15 year old boy threw a knife at her head in mothers home, mother did not request a restraining order against 15 year old boy either before (when other events occurred) or after this incident, and continued to allow this boy into her home un-supervised (by leaving him there with my daughter).

1) Using just these few examples, where do you think my main thrust or argument should be, education, safety, criminal acts?

2) How would you rank them, in which order would YOU present them?

Thanks a ton.

[socrateaser]

>1) Using just these few examples, where do you think my main
>thrust or argument should be, education, safety, criminal
>acts?

Assuming that you can prove what you allege (and that can be a big assumption when it comes to something like buying cigs for a child), then your argument is actually pretty simple.

The entire legal theory behind the state's compelling interest in overcoming parents' fundamental rights sufficient to make an award of custody, is based on the premise that both parents have equal fundamental rights, and therefore, that the court's decision to break the tie is based, not on the parent's rights at all, but rather the state's interest in the child's welfare, i.e., the "child's best interests."

A parent who already has primary custody, gains a legal presumption that he/she acts in the child's best interests, thus in order to move your case to the point where the court has authority to consider any of the evidence before it, you must show that the other parent does NOT act in the child's best interests.

This is why I say that credible proof of the mother buying cigs for the minor child is an affirmative act against the child's interest. This means that you not only have overcome the burden of proof, but you have demonstrated that the other parent fails to do the very thing that is constitutionally required for the court to award her custody.

In short, presented in this manner, the court, as a matter of law, is without authority to award custody to the mother without denying you your constitutional rights, unless the mother first presents evidence showing that you ALSO do some material act(s) that is/are not in the child's best interests.


>
>2) How would you rank them, in which order would YOU present
>them?

1. cigs
2. School
3. Dangerous living environment. This one could potentially backfire, as the court can resolve this problem by supply the mother with more money to relocate to a better community. And, you know where the money will come from, right -- uh huh, I know that you do.

[hoosierpapa4]

>3. Dangerous living environment. This one could potentially
>backfire, as the court can resolve this problem by supply the
>mother with more money to relocate to a better community. And,
>you know where the money will come from, right -- uh huh, I
>know that you do.

She lives in a bigger more expensive home in a nice or nicer neighborhood than my own.  The police reports are for her home and the minor children while in her care.  The lack of supervision that she exerts (and parental abilities) just fly in the face of saying that all she needs is a little more money and things will be better.

The children's Court appointed concellor has told her to get parenting classes, tough love classes, and to report the children when they do something against the law, yet...When my eldest daughter stole my youngest daughters ADHD medicine and sold it at school - leaving my youngest daughter without her med's...  her response was to keep it a secret, confiscate the money from my eldest daughter and make the youngest go the rest of the school year without her meds - we all know you can't get a script refilled for psychotropic drugs without a police report showing that it was stolen or lost.

No classes or councelling yet for mother or daughters.  Even though it's Court Ordered.

CIGS
Shouldn't be a problem to prove, Councellor has already heard my sons say that their mother buys them for their sister.  The lady at the gas station "hates the mother and her lifestyle", and has seen her hand the cigarettes to my daughter upon buying them.  Shouldn't be that tough to prove.

School
Again, not too difficult of a stretch here as the teach had my youngest son two years in a row.

Dangerous living environment
I don't believe I would waste the time of all 35 police officers (13% of the local police department) by parading them before the judge, but I have a couple who have responded to beatings between siblings while mother watches (children have had to call).

1) Would you suggest having the boys councellor testify as to the treatment and her concerns with the lack of supervision at mothers?

2) For the cigs thing, my thought is to have my atty ask her if she smokes or drinks - knowing that her answer is going to be NO, then ask if she buys cigarettes, then bring in the lady from the gas station who "doesn't have a loving relationship" with mother, or should I ask that question as an interrog so that I will know how to proceed first?

Thanks again for your help.

[United]

Hello,

I had to comment as your situation is VERY much like our situation in a number of key areas.  Mom also had DUI.  Mom also drove with suspended license with kids. Mom insisted son sleep with her "because she was lonely" until he was 11.  Actually stated this in mediaton.  She would strip his bed and tell him the cat peed on it to force him after he started saying no.  Mom also wouldn't get kids to school (because she wanted them to stay with her, also because she was lonely) and was permissive beyond reason (so they wouldn't get "mad" at her).

Husband just went through mediation to modify custody and was successful in getting a positive report for dad recommending physical custody to dad (70/30) and legal with mom 50/50.  Visitation to mom EOW and one eve a week.

What husband took to mediation was:

1. copy of her license showing suspension/copy of arrest report showing high alcohol content.
2. copy of attendence records from school; report cards; suspension notices, etc. (all of these were noted in mediators final report)
3. a calendar which showed that the days the kids were absent, suspended, sent to the office were moms days (because there would be no punishment at home).
4. emails from kids to dad talking about moms being drunk.
5. moms move/address history (17 times in 6 years)

The mediator talked to the kids twice.   He talked to the parents 4 times total. Didn't talk to step parents. Mom kept insisting that dad was only trying to lower CS payments.  Dad just kept stating that he was their to ensure his kids safety and best interests.  That he had "concerns", then he would lay out those concerns and how they effected the kids in negative ways. My husband is the logical type.  He had notes to rely on and doesn't fluster easily, even when baited.  No matter how emotional mom was or how much she openly lied, it didn't work.  

At the hearing the judge asked mom to take alcohol testing due to her DUI and it appeared he believed she was still drinking (despite her protests to the contrary).  The mediation report was adopted temporarily pending trial - mom objected to it and when asked what specifically she didn't like she said "I don't like it".

So, we aren't done yet, and it has taken two years to get to this point. But for us, mediation worked.  The mediator "got it".  We think it will settle.  We are in California.

I just wanted to tell you that sometimes it works well.  Good luck to you.

[socrateaser]

>1) Would you suggest having the boys councellor testify as to
>the treatment and her concerns with the lack of supervision at
>mothers?

Yes.

>
>2) For the cigs thing, my thought is to have my atty ask her
>if she smokes or drinks - knowing that her answer is going to
>be NO, then ask if she buys cigarettes, then bring in the lady
>from the gas station who "doesn't have a loving relationship"
>with mother, or should I ask that question as an interrog so
>that I will know how to proceed first?

If you can obtain a sworn affidavit from the clerk that she has routinely viewed the mother providing her minor child with cigarettes, and then subpoena the clerk to trial, to testify thereto, then I would wait until trial and ask the mother directly whether or not she does this, and then follow up with the witness.

If the witness can recall actual times and places where these events occurred, and is willing to testify to it, then I probably would attempt to gain an admission/denial via an interrogatory or request for admission, and once I had both, I would write to the mother's attorney and say, "I have credible evidence of your client providing cigarettes to CHILDSNAME on ??/??/??, ??/??/??, (etc.). As I'm certain your aware, this sort of affirmative behavior against the child's best interests, will be view very seriously by the court, therefore I would like to suggest the following settlement, to avoid any public embarrassment of your client:"

And so on and so forth...