What's the better thing to do.

[stepmomandmom]

Update...

I spoke to you before about my husband and the BM who are involved in a custody dispute.  A parenting coordinator was assigned to handle their case.  Since that time, nothing has really been resolved and the Parenting Coordinator got her license taken away by Health Protective Services (apparently, I heard she refused to give a lawyer info about a client she was seeing.)  Anyways, our lawyer said we would have to go to court.  We have been recording phone calls and our lawyer has the tapes to have them transcribed.  

Most recently, BM denied our request (last night) to have his daughter on Friday evening for her brother's birthday party.  She told us it was too short of notice (we couldn't get it ironed out sooner because we had to wait and see when my husband's sister would be in town.)  and besides, as she put it, "that's my time with my daughter."  She had nothing planned, as she admitted on tape.

About two weeks ago, she asked to change the visitation day because her sons birthday was on Sunday and she wanted her daughter to be there, and then again, it was Mother's Day and so we worked around that.

She also told my husband he will not be allowed to see his daughter on Memorial Day or Independence Day because they do not fall on a Saturday.  She says he is being unreasonable by demanding to have visitation on the holidays and birthdates.  The questions are:

1.  Is this unreasonable?

2.  Based on her actions, do we have grounds to request custody of the child or should we just stick with requesting joint custody?  My fear is that we won't be awarded joint custody because it is clear she will not work with us.  What is the best thing to do?

[socrateaser]

>She also told my husband he will not be allowed to see his
>daughter on Memorial Day or Independence Day because they do
>not fall on a Saturday.  She says he is being unreasonable by
>demanding to have visitation on the holidays and birthdates.
>The questions are:
>
>1.  Is this unreasonable?

I don't remember what your custody/parenting orders say, so I can't comment.

>
>2.  Based on her actions, do we have grounds to request
>custody of the child or should we just stick with requesting
>joint custody?  My fear is that we won't be awarded joint
>custody because it is clear she will not work with us.  What
>is the best thing to do?

The issue is whether or not the other parent is routinely frustrating your access to the child, and/or whether or not this directly contradicts the court orders, or whether this is merely a stall tactic used to circumvent a vague set of custody orders.

I would go to court to have the orders enforced/clarified by the judge. I doubt whether you can prove contempt, so you need to get the orders to a place where they are express on every issue, so that if the mother continues to play games, then you will have a clear contempt action.

As far as moving for a change of custody, I can't comment without your restating the evidence to support the allegation of changed circumstances.

[stepmomandmom]

In October, 2004, our visitation schedule was set to this:

VISITATION SCHEDULE TO ESTABLISH RELATIONSHIP

1.  Two hours on either a Saturday or Sunday each weekend (choice of day should alternate each weekend, beginning with the custodial parent), occurring in the-home of the custodial parent, or in the presence of the custodial parent at a place mutually agreed upon.  This weekly visitation should continue for eight weeks, or longer, depending upon the age of the child at the inception of visitation.

2.  Four hours on either a Saturday or Sunday each weekend with choice of day alternating between parents. Non custodial parent may take the child away from the custodial parent's home, provided that the specific location is made known. This visitation shall continue for a period of four to eight weeks, once again depending upon the age of the child.

3.  Eight hours every other Saturday (9:00 a.m. to 5:00 p.m.) for eight weeks.

4.  Eight hours on a Saturday and eight hours the next day, Sunday, to occur every other weekend, but not including overnights. This period of visitation to occur for eight weeks.

5.  From 9:00 a.m. on Saturday to 3:00 p.m. Sunday, every other weekend for twelve weeks.

6.  Thereafter, depending upon the readiness of the child, standard visitation should be implemented: from 6:00 p.m. Friday to 6:00 p.m. Sunday, every other weekend.

7.  Special provision should be made for holidays, birthdays, Mothers or Fathers Days, etc. which occur during the first year of visitation, and prior to the Standard Order beginning.



Thus, according to the schedule, by December, we should have had unsupervised visits, and by this time, we should have had a standard visitation schedule.  BM kept refusing to release daughter for unsupervised visits, so we decided to file contempt, but BM's lawyer called us and we agreed to have a parenting coordinator handle this.  We all met with the coordinator, and coordinator met daughter.  The PC told BM she couldn't continue to do this.  She told her she had to start letting her come over.  So she did, but she has restricted the visitation as much as she could.  PC told mom that she has to let dad see daughter on holidays too.  

However, the PC got her license got taken away, so pretty much everything that has happened has been pretty much useless.  We have no one to confirm her lack of cooperation (which the PC was going to do.)  And now that BM knows there is no PC, she is refusing all visitation except for on Saturday between 9 and 5pm.  We are going to court, but we don't know what we can expect.  If we just ask for visitation, we know this will go on.  She will continue to be in control and will make all the decisions about days and times.

She has also started sending her 4 year old daughter with messages to us.  She told daughter to tell us we can't go anywhere without her permission or else she will be in trouble.

[socrateaser]

You are misinterpreting the orders. I don't know who wrote that parenting plan, but IMO, it is essentially worthless. Statements like, "depending upon the readiness of the child," are totally ambiguous and unenforceable, because they contain no specific definition of "readiness," so the only means of finding out when the child is ready for unsupervised visits is to go to court.

My advise stands -- go to court and get the orders clarified. Every other avenue is a waste of resources until you straighten out the parenting plan language.

[stepmomandmom]

That's originally what the parenting coordinator was for.  And just an FYI, she said she'd never seen anything like it before and didn't know any court that would order such a thing (not surprisingly, it was BM's attorney that came up with this.)  At the time, we were told it was a temporary order for the purpose of establishing a relationship and that a permanent order would be put in place after this was completed.  

The problem is, BM is never going to let it end!  We have her on tape telling my husband, right in front of his daughter, that it would be better off for everyone if he would just fall off the face of the planet.  She also refers to their daughter as "my daughter."  So I guess what I'm really asking is, when we go to court, is it asking too much to ask for joint custody?  Are you saying we shouldn't request anything but should just have a judge keep this visitation order, but just clarify how it should go?  According to the parenting coordinator, we are on step 3.

[socrateaser]

If you have admissible evidence demonstrating the mother's desire for the father to get lost, then it's pretty certain that no judge will award any sort of joint parenting. This has nothing to do with whether the judge will award joint legal custody, however, because the legal right to determine major issues re the child's health and welfare is separate from the job of day to day parenting (or, at least it is in court, if not in the real world).

My suggestion is that if you have issues with the existing parenting plan, then you need to have the orders clarified. If your taped evidence is as strong as you say it is, then that may be a demonstration of a substantial change in circumstances, and may give you a shot at primary physical custody on grounds that the current custodial parent will never facilatate the father's access to the child.

However, even if the court permits a custody hearing, it could still leave custody as it is, believing that the child's interests are better served by mother's complete attention, even though there is a manifestation of alienation.

The judge would never say it like that, but that's how it could end up. More than likely, the judge will give the mother a stern warning about her behavior, clarify the orders, and leave everything as is. Which is why I am suggesting that you clarify the orders, first, rather than spend money in a losing battle. Then, if the orders are clarified, and the mother continues to frustrate your access as if the judge had never spoken on the issue, THEN you have a case for a custody reversal, because the judge will know that nothing short of that will get the father any time with the child.

[stepmomandmom]

Ok.  I see what you are saying.  I have talked to others who live around here and have experience with the family courts in our county.  Their experience is that judges do not tolerate the type of parental alienation that mom is displaying.  Actually, we would have been ok with standard visitation, but mom will not let that happen.  If we continue with the current order, considering that it was filed back in October, could the judge at least allow us to move forward to the point in the order that we should be?  I'm concerned about BM being rewarded for stalling everything by being given the power to continually restrict visitation with this order.  Mom has never allowed a single holiday visit or special occasion (like birthdays.)

[socrateaser]

There is little doubt in my mind that the court will clarify the order, permit unsupervised visitation, and give the mother a warning about failing to cooperate. If mother fails to do so, then your case for custody is much stronger than it is now.

So, once again, my advice is to clarify the order in anticipation of the above, and in the further anticipation that the mother will continue to disobey the court.

Asking for a custody hearing prior to doing this is, IMO, a mistake.

[stepmomandmom]

Thanks for the advice!  I greatly appreciate it.