Its getting out of control

[missy]

Ok--my husband is following IN Standard State Minimum Visitation Guidelines.  The divorce was final in 2003 (but started in 2001) and there are 2 children-age 7 and 6 involved.  He had paid support and isnt behind and exercises his visitation all the time unless denied.  He is currently getting every other week through the summer.

This past week was our week with the kids.  At a friends house, ss was bit by a dog (more like a 2 in scratch--no puncture, just bruising).  We called the CP and informed her-we talked for 2 hrs after that about asking if we could get the kids on her time since she is always asking for more time w/ them on our time-she says he never asks and wouldnt tell him yes.  Well, never once did she ask again about the dog bite.

The next day, the kids wanted to stay all night w/ their grandfather.  So we allowed them to go.  Well, the CP calls and wants to know where the kids are--and my husband tells her, and she states they arent allowed to be there, that the guidelines state that she gets priority over everyone--but the guidelines in fact state cared for by parent or family member.  

Well-the next day, her and her husband show up (on our time) to watch the kids teeball game.  They have SS leave the game to show them the bite.  After the game, they approached us and started getting very hateful about everything.  Well-we attempted to get the kids into our van and the CP kept grabbing SS arm to pull her to her van.  We informed her it was our time yet she kept trying to take SS and wanted a picture of his leg.  So DH told her she could get it tomorrow on her time since she was making a huge fuss in front of everyone and put SS back into our van.  Meanwhile-while he was holding our 1 yr old--CP brother advanced oh him trying to fight him.  Things were broke up but the CP came over in the middle and pulled SS back out of the van to her van.

We went over and got him and told her to take the picture.  She stated she wanted it for her report against him.  AFter that, she never once attempted to make sure the kids were ok after all they witnessed.

Now heres the questions:

1)Can she do anything about the dog bite?  It was a friends and we had another officer look at it and he said no report was needed.

2)Can she deny visitation this coming weekend after the huge ordeal that occured?  Or because of the dog bite?

3)We dont have an attorney, how do we go about filing if she denies visitation?  We have several tapes of phone calls and police reports where she has denied visitation in the past. (plus contempt charges our past attorney didnt have dropped)

4)She always says her attorney advices her to withhold visitation from us, is there a way we can contact her attorney since we are representing ourselves to find out if this is true and what she is going on?

[socrateaser]

>1)Can she do anything about the dog bite?  It was a friends
>and we had another officer look at it and he said no report
>was needed.

Well, she could sue the dog owner and you for negligence, but it doesn't seem like there's much of a case. I don't really think you have much to worry about, except for the child's arm sockets! ;-)

>
>2)Can she deny visitation this coming weekend after the huge
>ordeal that occured?  Or because of the dog bite?

Depends on your court orders. I can't tell unless I read them.

>
>3)We dont have an attorney, how do we go about filing if she
>denies visitation?  We have several tapes of phone calls and
>police reports where she has denied visitation in the past.
>(plus contempt charges our past attorney didnt have dropped)

The process is very fact and jurisdiction specific, so let's just hope that you don't need to file for contempt.

>
>4)She always says her attorney advices her to withhold
>visitation from us, is there a way we can contact her attorney
>since we are representing ourselves to find out if this is
>true and what she is going on?

Sure, however, attorney's advice to his/her client is privileged and can only be disclosed with client's informed consent, so you're wasting your time.

[missy]

I looked over their Divorce Court Order last night.  All it states about the kids is that they are to follow the IN parenting time guidelines.  So I read over them and am finding nothing that gives her a right to deny visitation.  I even looked up state statute for IN and it states the visitation can only be denied by the court after a hearing.  And it also says about filing a temp. restraining order to keep her from denying visitation.  

So it seems to me, if her "attorney" is actually telling her to withhold the kids from dh, isnt that contempt of a court order on her attorney as well?  

We have serious doubts that her attorney is actually telling her these things (she has been making stuff up in the past when it comes to what her "attorney" has said-and some of it came about in court last time)

Is a dog bite considered neglient in the courts eyes?  We are talking a 2 inch scratch--no puncture marks and he didnt even cry.  BM has sent them over before w/ a ton of scratches worse than this.

Also, --can she refuse me the right to pick up the kids?  She usually drops them off to me on our weeks (dh works fridays  but is home for dinner and to see them to bed) but I have a feeling she is going to try this.  Can I get the police out there to document?

Last question--according to IN guidelines--there is the right of first refusal clause--however--it states parent or family member can watch the kids--but she says if we dont allow her-we dont get the kids.  Do we have to allow her?  Would the judge look down on us for allowing them to see grandparents vs sending them to her house everyday?  This is the only time they get a chance to see his side of the family as she wont allow them to see the kids on her time.

Thanks, alot!!  You are a life saver!!!

[socrateaser]

>So it seems to me, if her "attorney" is actually telling her
>to withhold the kids from dh, isnt that contempt of a court
>order on her attorney as well?  

Well, the attorney can advocate in good faith that his/her client test a law. So if the advice was brought with an intent to harrass you, rather than for a valid legal reason (and, I can't really think of any good one at the moment), then that would be contempt. Trouble is that you would need to get the other parent, under oath, to admit that her attorney advised her to adopt this course, because otherwise, the statement is attorney-client privilege and cannot be obtained. On balance, I'd say your wasting your time trying to prove that the "attorney did it."

>Is a dog bite considered neglient in the courts eyes?  We are
>talking a 2 inch scratch--no puncture marks and he didnt even
>cry.  BM has sent them over before w/ a ton of scratches worse
>than this.

Dog owners have a duty to guard against dog bites, and parents have a duty to protect their children. Here, the issue is whether or not you have breached your duty of care by allowing the child to be bitten. There aren't enough facts to fairly analyze whether you're in breach, however I seriously doubt that there's a case, and even if there was, it's not a reason to deny visitation/custody -- it's a reason to go to court to get visitation/custody modified (or a restraining order preventing the child from being near the dog).

>Also, --can she refuse me the right to pick up the kids?  She
>usually drops them off to me on our weeks (dh works fridays
>but is home for dinner and to see them to bed) but I have a
>feeling she is going to try this.  Can I get the police out
>there to document?

You are not the parent -- you are delegated by the parent to act as temporary guardian during the period in which you pick up the children. The police are not likely to respond to a call from you to enforce your husband's custody/visitation rights. They may respond to a call from him, however. It depends on the local law enforcement policies, so I can't really say.

>
>Last question--according to IN guidelines--there is the right
>of first refusal clause--however--it states parent or family
>member can watch the kids--but she says if we dont allow
>her-we dont get the kids.  Do we have to allow her?  

You have to do what the laws/court orders say. There's usually a time period under which the first refusal right kicks in, e.g.,  4 hours unsupervised by the parent exercising visitation/custody. If you know that your husband will be absent for the required period of time (whatever that may be), then, legally you must ask the other parent if she wants to exercise her right.

As a practical matter, there's no way to prove that the required time has passed, so it's largely an unenforceable right, unless there is a very gross and obvious violation. Here, the other parent is largely wasting her time.

>Would the judge look down on us for allowing them to see grandparents vs sending them to her house everyday?  

I don't read tea leaves. Every judge is different. A parent has superior rights to a grandparent. The kinds of questions that you are asking, demonstrates that the situation is extremely hostile between the two parents, and they need to go to mediation or otherwise learn to cooperate in raising the child.

Frankly, I think it may be better for "you" personally to tell your husband that this is too much pressure for you and that you're gonna back away from dealing with it until he and his ex can learn to cooperate, or someone obtains some more specific court orders that will eliminate the existing ambiguities so as to stop the arguments.

[missy]

I agree w/ your last statement completely!!  I have told dh that I would get the necessary info for him--but the best thing to do was to go to court and get everything spelled out and explained--because the guidelines leave too much room for "misinterpertation".  I told him things just need to be set so we dont have to have any phone calls other than emergencies or medical issues.  Because all the phone calls do is turn into a huge arguement if dh doesnt agree w/ everything she says.

We dont have an attorney as of yet, dh didnt figure he would need one just to make sure his minimum rights were established--but we might just hire one w/ the dog bite scenerio.  I know she will say we are negligent--but she has no proof.  

What proof is needed to show neglience?  We do have documentation on her, just not sure what is exactly needed??

And the time frame the kids are left w/ grandparents is less than 3 hours.  More along the lines of 2 1/2 hrs but since the guidelines dont state this--she argues it.  But she does leave them w/ her mom and w/ people at church and has a friend pick them up from school--so its really no different.

Im sure the judge looks down on controlling issues and thats what this is.

Oh, just thought of something, our old attorney is now the Judge in this County---does he have to remove himself from this case if it comes before him?  Or can her attorney petition it?

[socrateaser]

>What proof is needed to show neglience?  

Negligence requires proof of four elements: duty, breach, causation, damages.

Usually, it's easier to analyze a case for negligence by merely observing whether the injured person is damaged. Is the child's injury permanent and defacing? Did the other parent suffer any serious emotional injury that required professional medical intervention? Did the child suffer any physical or emotional injury requiring such intervention? Did the other parent pay any substantial out-of-pocket costs to treat the child's injuries?

If the answer to all of the above is no, then there's no damages, and therefore no negligence. Period.

>Oh, just thought of something, our old attorney is now the
>Judge in this County---does he have to remove himself from
>this case if it comes before him?  Or can her attorney
>petition it?

Judge must disqualify himself, unless both parties give informed consent after discussion outside of the judge's presence.

[socrateaser]

>What proof is needed to show neglience?  

Negligence requires proof of four elements: duty, breach, causation, damages.

Usually, it's easier to analyze a case for negligence by merely observing whether the injured person is damaged. Is the child's injury permanent and defacing? Did the other parent suffer any serious emotional injury that required professional medical intervention? Did the child suffer any physical or emotional injury requiring such intervention? Did the other parent pay any substantial out-of-pocket costs to treat the child's injuries?

If the answer to all of the above is no, then there's no damages, and therefore no negligence. Period.

>Oh, just thought of something, our old attorney is now the
>Judge in this County---does he have to remove himself from
>this case if it comes before him?  Or can her attorney
>petition it?

Judge must disqualify himself, unless both parties give informed consent after discussion outside of the judge's presence.