Questions for you....before we meet with lawyer

[dipper]

Hi Soc,
 
We are meeting with attorney on Sunday - final before court on 25th...so have numerous things to go over...if you can have patience with me..

For refresher - dh's ex moved two hours away last summer.  She was granted a temp order for primary as dh fought the move - his son did not want to move.  She had lawyer, dh didnt.

In the initial hearing, things were brought up without proof.  A picture of an old shoe was shown several times saying dh had let ss wear this....dh goes to work before ss goes to school.  DH is off on Fridays, which is when he would have had ss - and ss would have returned to him that evening.  IF it had been on a day she was out of town for meeting and he went home to her, ss would not have had his good shoes the next day either.  There was no school report to verify this had taken place.  And the kid was 12 years old - he can dress himself.   This is just one example.

Ex's lawyer stated dh had told ex that he wanted ss just to get out of support which of course never happened.  DH has said he doesnt want support from her.

Okay, she was dating a guy everyone knows for drug use -and had him overnight with ss home.  Lawyer says without criminal record or someone to testify they saw him doing drugs - we cant even bring it up.  I know someone he told about his drug use - but they babysit and I dont want to ask them to lose money.

DH was out of work for six weeks without pay as he was hospitalized last summer.  He was unable to pay dentist bill - over $130 for ss.  Bill turned in to bill collector - which we paid completely off within two weeks as he got money out of 401k for his bills.  Okay, ex received attorney letter threatening action with an appeal date of 10 days - waited about 16 days before giving to dh.  We just found out today that amount they are claiming owed is for lawyer fees ($50), which we mailed out right away.   Feel that this will be brought up in court.

DH took ex to court for debt she owed.  He was awarded the sum.  She refused to pay anything reasonable - wanting 10 more years for what she has refused to pay in the past two.   He garnished her.

This week she got a second job.  Told ss not to tell - which he did.  She is maybe covering as child support is involved or to play the poor me ticket - garnishment caused her to get second job.  

Psychologist - dh fired the counselor as you may recall.  We found another psychologist and took ss to see that one.  She was notified ahead of time that this counselor had that apt.  time open.  Okay, we sent her all info with a request for old report cards and a questionnaire for her to fill out.  Luckily, we requested the school records directly from the school.  She has not responded at all.  usually, she changes visitation - not this time.  She has taken no part in counseling and voiced no opinion.

Her employees are taking care of ss while she works.  For behaving three days straight in school - no detention or suspension he was rewarded with a watch, a video game, and putt-putt.  I am not kidding....we got an email on a Tuesday from a teacher saying he was close to being suspended again.  DH talked to ex about this.  That weekend he got presents from her employees for being sooooo good on the other three days of school.  Of course, ss is 13 and this is making an impact on him.......

One of employees is ex drug addict and for whatever reason - ss says her mother 'took' her baby from her last month.  From what he was freely saying, sounds like their was no trial - dont know if mother threatened her about it or what.  Anyway, this is one person he is very close with and she buys him things constantly....brand name things.

Okay...

1.  Can things from first trial (ex> shoes) be rehashed to demand proof?  Or would this be of no use to try to prove she lied?


2.  The druggie boyfriend - who has moved states away - is there no other way to bring this up, ex>  Would an affidavit from person he told be okay or is that inadmissable?

3.  Will our financial stress due to illness be significant?


4.  Does the fact that she withheld the letter until after appeal date mean anything?


5.  The second job - she is working until 9 every night while ss is spending evening playing video games, riding to malls, and goofing off > wont this go against her in court?


6.  In your expert opinion, will firing the counselor bite us in the butt?  


7.  Psychologist recommended testing.....which is not all covered by insurance and can be costly.  As she is not responding at all....how can we approach this in court and seek a statement from the jude on whether she is liable?

8.  As far as court is concerned, will her employees work as replacements for family?  


9.  Any points above that you think we could hammer on?


Thank you in advance......

[socrateaser]

>1.  Can things from first trial (ex> shoes) be rehashed to
>demand proof?  Or would this be of no use to try to prove she
>lied?

Yes. If the initial hearing was for a temporary custody order, then any evidence admitted in that hearing remains available for use at trial.

>2.  The druggie boyfriend - who has moved states away - is
>there no other way to bring this up, ex
>  Would an affidavit from person he told be okay or is that inadmissable?

Evidence is admissible if it is (1) logically and legally relevant, (2) competent (3) in proper form (4) not subject to some exclusionary rule.

1) Mother's intimate association with a man who uses controlled substances is logically relevant to mother being considered the child's prefered caretaker because _______?

If your answer is mother makes bad associations that may harm child, then you need more than one example, because people make mistakes and your opponent can simply state that she has no present association with this person and no association with any other drug user, so it is no longer relevant, as the child is not at risk.

I don't think this evidence will be admitted -- you can't get passed the first hurdle.

>3.  Will our financial stress due to illness be significant?

1) Father's financial circumstances demonstrate that he should/shouldn't be chosen as the child's primary caretaker because _________?

If your answer is because father's been extremely ill, then that works against you and it IS relevant, because of your routinely ill, then you can't care for the child.

If your answer is because shortage of funds degrades father's ability to care for child, then this is NOT relevant because the purpose of child support is to make it possible for the better caretaker to care for the child, REGARDLESS of whether or not that person's financial circumstances would be sufficient were they attempting to care for the child alone.

I'm not certain why you want to raise this issue, so I can't conclude on this question either way.

>
>4.  Does the fact that she withheld the letter until after
>appeal date mean anything?

Same as #3...how is this relevant to whether or not one of you is a better daily caretaker for child? Answer on this is easy. Irrelevant.

>5.  The second job - she is working until 9 every night while
>ss is spending evening playing video games, riding to malls,
>and goofing off > wont this go against her in court?

This is a very sharp double-edged sword. You can argue that mother is harming the child by bringing him to work. She will argue that if you paid more support then she would have money for a sitter. You can argue that mother's situation is the result of her bad choices and failure to pay a legitimate debt for which she was garnished by you. Mother will argue that if you paid more support then she would have money to pay the debt and wouldn't need a second job.

Get the picture? Your complaint here is valid -- mother can't manage her life or her money, but reality is that the court can solve mother's problems and thus child's problems by forcing you to pay more support.

Obviously, there is a point where the court cannot award more support without ruining you, but, like I said -- this is a very sharp sword that can backfire and blow a hole in your case. I don't know that I'd want to raise this issue.

>6.  In your expert opinion, will firing the counselor bite us
>in the butt?  

Depends on how you defend your actions. You believe that the counselor was actually injuring your relationship with your child. You have evidence that the child wasn't improving in school, so you decided to try a different counselor. I hope you have some evidence from the new counselor, or evidence that the child has improved since you've switched. Otherwise, you could look like an angry parent who simply doesn't like an honest therapist who's opinion was against you.

If I thought this were an issue, I'd be sure to have the therapist available as a witness. If the old therapist is not available, then any reports offered as to the child's condition are hearsay and inadmissible -- same goes for the new therapist.

>7.  Psychologist recommended testing.....which is not all
>covered by insurance and can be costly.  As she is not
>responding at all....how can we approach this in court and
>seek a statement from the jude on whether she is liable?

You just tell the court that this is what was recommended and that mother has refused to respond with regard to paying her fair share, so you cannot go forward because you don't have the money to go it alone.

>8.  As far as court is concerned, will her employees work as
>replacements for family?

If you're arguing that you should have priority to care for the child when mother is at work, that's a good argument. If you're arguing that the mother's employees are poor substitute for daycare, then you're arguing for more child support for mother if she's chosen for primary caretaker. This is another dangerous tack. You need to think your case through a little more.

>9.  Any points above that you think we could hammer on?

Seems to me that you are way off the mark (sorry, just my opinion). Your case seems like an angry vent, not a demonstration of why you are the superior parent. I would want to emphasize the stability in your living environment as compared to mother's, and I would try to show, that mother has never been able to provide a stable, safe environment for the child -- REGARDLESS of the fact of her receiving child support.

I would want to show that mother makes bad choices, generally, about EVERYTHING, although I don't know what those things might be.

And, most importantly, I'd want to show that mother is completely non-cooperative and non-communicative, which would require you to document all of your attempts to discuss the various issues surrounding the child's health, education and welfare, and the fact that you NEVER receive any response to ANY requests, and that this pattern of mother's failing to cooperate/communicate demonstrates mother should not be chosen as the preferred caretaker, because as soon as she is awarded this, she will view this as entitling her to cut father out of the child's life entirely, as this is her demonstrated pattern. In short, mother is using the child to punish the father, and this behavior causes the child to believe that he is the REASON for his parent's discord, and the result is that the child is now socially disadvantaged due to his low self esteem.

I'd put mom on the stand and review every single event where you tried to reach a cooperative agreement, and then question her as to why she did not cooperate. This would include the debt that you have garnished her on. By the time I was done, mother would be admitting that she hates dad, and that she wants to get him back for screwing her over (whatever the reason for that might be -- doesn't matter), and as soon as the words came out of her mouth, I'd look at the judge and say, "No more questions, your honor."

"Jordan fades back...shoots...it's good! And that's the game!" -- Jim Carrey, Liar, Liar

[dipper]

Soc, just to clear up a few things - and thank you.  I know you that you know your stuff.


If your answer is mother makes bad associations that may harm child, then you need more than one example, because people make mistakes and your opponent can simply state that she has no present association with this person and no association with any other drug user, so it is no longer relevant, as the child is not at risk.


***Actually, her lawyer had brought up dh's past drug use in court in June - which according to the lawyer we have now was inadmissable as it was prior to their then custody order and could not be held against him again.  She was arguing that he was unfit because of drug use years ago while dating someone at that time who was on drugs.  She pursued the relationship after court, but the guy moved on...****



>3. Will our financial stress due to illness be significant?

****We will not bring this up - but, as lawyer sent her the notice about needing to pay - we feel she will and wanted to assess how much damage this can do.  DH was bedridden by a sudden illness, but he recovered quickly and recovered full use of his muscles.  He is edging the six month period in which this could recure - meaning it would be on and off throughout his life.  His should have been a once in a lifetime thing....




Mother will argue that if you paid more support then she would have money to pay the debt and wouldn't need a second job.

****LOL...that is ironic.  I know you are telling me the truth.  But, isnt the fact that it could work a little crazy - if he gave me more money then I could in turn give him back the money and I still wouldnt be actually paying my own debt?




8. As far as court is concerned, will her employees work as
>replacements for family?

If you're arguing that you should have priority to care for the child when mother is at work, that's a good argument. If you're arguing that the mother's employees are poor substitute for daycare, then you're arguing for more child support for mother if she's chosen for primary caretaker. This is another dangerous tack. You need to think your case through a little more

****The only purpose of this is to say that while ss is having a great time out with 20'ish and 30'ish people on school nights - and not doing any homework......he may like it, but it would me more stable and in his best welfare to be with his dad, at home, doing his homework.****

SS has a learning disability and told dh flat out yesterday - I cannot read.  He was diagnosed after parents split.  During that time, the mom has had him Sunday night - Thursday morning.  So, dh only had him one school night.........and in those three years, he has rarely done homework.  SS is 13 and with divorced parents, learning disability, ADHD, and behavioral issues - at high risk for dropping out.  (According to statistics - and being a single mom for eight years, I do not believe those have to be the lives of our children)

I know.....more than you needed to know...LOL...

Yes, Soc, some of it is anger.  Anger at tricks and games and the double standards......You are right - that should not be the focus here and I appreciate your help!!

[socrateaser]

>Mother will argue that if you paid more support then she would
>have money to pay the debt and wouldn't need a second job.
>
>****LOL...that is ironic.  I know you are telling me the
>truth.  But, isnt the fact that it could work a little crazy -
>if he gave me more money then I could in turn give him back
>the money and I still wouldnt be actually paying my own debt?

Crazy it may be, but it's still the law. Family law is not fair. Keep that in the front of your mind, or forget it to your peril.