Father needs strategy for getting more time with son

[ccmidaho]

Facts:All parties are residents of Idaho who live in the same town. I am the girlfriend of the father. Father and mother were never married. Child is a 13 month old boy. Father currently has son on three days a week  for two hours each on Tues and Thurs and 3 hours on Sunday.

Father wanted much more time than this but this is all he could get out of mediation and he was trying to spare his son a court battle. This current schedule has been agreed to by both parties and is filed with the court. Agreement says that overnights begin between 12-18 months. There isn't any agreement about schedule beyond that as mother refused to discuss anything past 18 months.

Mother is now saying that her lawyer tells her that the agreement is not binding because of the vague language regarding overnights and that she won't start overnights until he is at least two years old.   We want 50-50 custody someday and mother is telling us that's never going to happen. We are tentatively planning to file a motion with the court to clarify the agreement about overnights. We need help with strategy as we are at our wits end.

We are tired of playing "nice" with this woman and I am pushing my boyfriend to fight for his son.   He is worried that anything he does before 2 years of age will not go in his favor because of a general bias towards mothers. Both parents are fit parents and have adequate financial resources to take care of the son.

Questions:
1. Is there any possible way that the court can deny overnights between now and 18 months if that was the intent of their signed agreement?

2. In the absense of any agreement as to how many overnights and when, who gets to decide that? Can the father put in a request for a schedule of overnights when he files the motion for clarity on the agreement?

3. The father wants 50/50 custody so at what age should he file with the court to get this? Should he ask for something less first? Should he wait until he is two years old to ask for more time than occasional overnights?

4. Is there an age that is considered the "right" age to begin spending overnights away from the primary caretaker?

5.If the father does nothing now but give in to mother's dictated visitation schedule until he is two or three will that hurt him later because he didn't try hard enough early on?

6. Knowing that our objectives are to get to 50/50 custody, can you please outline the best strategy you think we should take over the next two years?  

Thank you, we really believe this kid deserves to have a father in his life and its unconscionable to me that a mother would behave as this woman is. Your insight is greatly appeciated.

[socrateaser]

>Questions:
>1. Is there any possible way that the court can deny
>overnights between now and 18 months if that was the intent of
>their signed agreement?

Yes. It depends upon the judge. The only way you will really know what kind of orders the judge issues in these circumstances is to find an attorney with experience before that judge, or by sitting in court and listening to some of the judge's decisions.

>2. In the absense of any agreement as to how many overnights
>and when, who gets to decide that? Can the father put in a
>request for a schedule of overnights when he files the motion
>for clarity on the agreement?

The court decides. Usually, a prior agreement between parents makes any modification difficult. But, if the agreement demonstrates that the parties never really "agreed," because of its ambiguity, then the court has authority to straighten things out.

>
>3. The father wants 50/50 custody so at what age should he
>file with the court to get this? Should he ask for something
>less first? Should he wait until he is two years old to ask
>for more time than occasional overnights?

There's no set age. It's all about the particular judge in your case and how that judge generally rules on such issues.

>
>4. Is there an age that is considered the "right" age to begin
>spending overnights away from the primary caretaker?

No.

>
>5.If the father does nothing now but give in to mother's
>dictated visitation schedule until he is two or three will
>that hurt him later because he didn't try hard enough early
>on?

The schedule shouldn't be dictated. It should be fixed by the court so there is no ambiguity and no way to wiggle out. Then, by actually adhering to the full conditions of the orders, father will demonstrate his dedication to the parent-child relationship, and that improves his later case for more custody.

>
>6. Knowing that our objectives are to get to 50/50 custody,
>can you please outline the best strategy you think we should
>take over the next two years?  

See above. Do no allow the other parent to get away with anything -- observe the court orders and document every single visitation. Serve notice on the other parent, that in order to remove any future ambiguities about the relationship with the her and the child, that you will routinely record all conversations between yourself and the other parent. Always keep a dictation recorder handy and use it whenever you are picking up or dropping off. Get a phone tap (available from radio shack) and use it when you talk to the other parent on the phone.

Always remain calm when talking to the other parent. Never threaten anything, not even court action. Never touch the other parent. Never spank the child. Never say anything bad about the other parent or the child to anyone. All of these things, if not adhered to, will come back to haunt you.

If you think I'm going overboard, then just wait until something goes really wrong and you weren't doing what I suggest -- you'll be kicking yourself later.

[ccmidaho]

Thank you for your reply.

1. Can recorded conversations be used in a court situation? what if the mother didn't know she was being recorded?

2. Father suspects mother will refuse to talk to him at all if he puts her on notice that he is recording converstations. What should he do if she refuses any contact that he plans to record?

3. Because of the ambiguity in the agreement regarding overnights can the father file a motion with a specific overnight schedule request or does the judge just order what he thinks is best?

4. The father has had to miss some visitation because of travel for work and we know that the mother will use this against him in his request for more time. What is the best way to combat this argument with a judge?

[socrateaser]

>Thank you for your reply.
>
>1. Can recorded conversations be used in a court situation?
>what if the mother didn't know she was being recorded?

Every State has different laws in this area. Idaho law requires that no recording may be made unless the recorder is in plain sight and all participants have prior notice that the recording is taking place.

That is why I told you to legally "serve" the other party notice that you intend to record ALL future communications. Then you will have proof of prior notice. Always hold the recorder in plain sight -- do not conceal it.

If things start to get out of hand, say, "Remember, you were served notice on ??/??/?? that I would record all communications between us, and I have been holding the recorder in plain sight throughout this conversation." That way, the other person cannot say later that they were unaware, because it's on the tape that they were notified.

>2. Father suspects mother will refuse to talk to him at all if
>he puts her on notice that he is recording converstations.
>What should he do if she refuses any contact that he plans to
>record?

Unless your court orders specifically prohibit your recording conversations with the other party, then I suggest that you give the other parent notice, and don't worry about whether or not they refuse to communicate. Most court orders MANDATE communication between the parents, so a blanket refusal to communicate would be contempt.

If the other parent doesn't like it, she can ask the court to order you to stop recording. You protect your rights, and let the other parent protect hers.

>3. Because of the ambiguity in the agreement regarding
>overnights can the father file a motion with a specific
>overnight schedule request or does the judge just order what
>he thinks is best?

Always give the judge a proposed order and your argument for why it should be ordered. Don't give the court an opportunity to be creative, otherwise you may come out with something entirely different from your prior expectations.

>
>4. The father has had to miss some visitation because of
>travel for work and we know that the mother will use this
>against him in his request for more time. What is the best way
>to combat this argument with a judge?

That is one of the things that you want to have "clarified" by the court -- how to deal with work-related interruptions in the visitation schedule. If you raise the issue in your pleading, then the other parent can't argue that you're a flake.

[ccmidaho]

One more question:

Father told mother via email that from now on he would be recording all of their converstations. Mother didn't reply so I assume that we need to take further steps to "serve  notice".   We'd rather not have to go through a lawyer for this.

Can we simply type out a letter stating that Father intends to record all conversations the occur in person or over the phone and hand it to her? Or do we need to do something more formal?

[socrateaser]

>Can we simply type out a letter stating that Father intends to
>record all conversations the occur in person or over the phone
>and hand it to her? Or do we need to do something more formal?

You can effect reasonable notice by mail, but you need a disinterested third party to sign a certificate/affidavit of service and place the letter and a copy of the certificate in an envelope and mail it (or hand it to the party to be served).

The objective is to have someone not involved or interested in the case who could testify, if necessary to the fact that the other person was notified of your intent to record.

Different States have different rules about what constitutes a certificate of service and proper notice, but this should work (this will all seem very heavy handed, however it is the only way to absolutely protect your interests, in advance:

NOTICE OF INTENT TO RECORD COMMUNICATIONS

TO: RECIPIENTSNAME
      STREET
      CITY, STATE, ZIP

Please be advised, that I intend to make an audio record by electronic means, of any and all future oral communication(s) that occur between us. If you choose to engage in oral communication with me, you are impliedly granting consent to the making of an audio record of our communication. Said grant exists, regardless of the circumstances under which the communication is made (including, but not limited to, telephone, or in-person communication), and regardless of whether or not you state, in advance, a demand that an audio record not be made.

Therefore, if you do not want your oral conversation recorded, then, do not engage in oral communication with me.

If you have any question(s) as to your rights concering this matter, please consult with an attorney.

Dated: ??/??/????

By: ___________
YOURNAME
STREET
CITY, STATE ZIP
CONTACTFONE

--------------------------------------------------
Affidavit of Service

State of SERVERSSTATE, County of SERVERSCOUNTY) ss.

I, SERVERSFULLNAME, after first being duly sworn, do hereby depose and say: that I am at least 18 years of age, not an attorney or party to any legal action involving the person(s) to be hereby served, that I reside or am employed within the above-named State and County, and that on ??/??/????, I served the following document(s):

NOTICE OF INTENT TO RECORD COMMUNICATIONS BETWEEN PARTIES

Said document(s) served by mailing a true copy thereof via United States Postal Service, First Class Mail, to:

RECEIPIENTSNAME
STREET
CITY, STATE ZIP


By: _____________
SERVERSFULLNAME


Subscribed and Sworn before me, this ____ day of _____, 2005,

By: ___________
Notary Public
My commission expires: __________

[ccmidaho]

Since we informed mother that we would be recording conversations from now on she is refusing any more contact or discussions except for in email. She refuses to discuss anything during pickups/dropoffs. Father had requested that they meet once a month to discuss the child, schedules, etc. Email is really not effective for having discussions regarding what is in the best interest of the child as far as we are concerned. Its obvious to us that her laywer is telling her to do this.

1. Is there anything that we can do about this given that its not in the best interest of the child if the parents can only communicate in email?

[socrateaser]

>
>Since we informed mother that we would be recording
>conversations from now on she is refusing any more contact or
>discussions except for in email. She refuses to discuss
>anything during pickups/dropoffs. Father had requested that
>they meet once a month to discuss the child, schedules, etc.
>Email is really not effective for having discussions regarding
>what is in the best interest of the child as far as we are
>concerned. Its obvious to us that her laywer is telling her to
>do this.
>
>1. Is there anything that we can do about this given that its
>not in the best interest of the child if the parents can only
>communicate in email?

a. Have you ever known a woman who could "not" talk about what's bothering her for any length of time? Record -- eventually, you will get what you're looking for.

b. Make sure that you give her an email address where the emails are stored on a commercial server, like Yahoo. That way you can PROVE that they were sent to you and that they were not altered by you after you received them (because you have no control over the storage system on a commercial server).

Then, communicate using email. You will get what you're looking for, eventually.

Think of it this way -- you weren't getting anything but screwed in the oral discussions, anyway. Otherwise you wouldn't be here asking for help. So, try and make it work. I'm telling you that eventually the other parent will talk -- it's inevitable, and you will be able to make a case from those recordings, and emails.

On the other hand, if you don't want to make a case, then go back to what you were doing and live with it. I'm not saying that your life may not be simpler by just bending to the other parent's will. You asked how you could protect yourself, that you were tired of playing "nice," and I told you what you could do. Every benefit has its downside. At the moment, the downside is that the other parent is refusing to communicate. It's up to you to decide if this is a workable situation.

I think that eventually, she will start talking and if she continues her past behavior, then you will have a case that a judge will buy into.

But, in the end, you must make the decision of how to proceed.