Pursue ex parte order?

[cascole]

Dear Soc,

We are in CA.  The father of our 13 month old baby is currently on a court ordered 'step up' plan for visitation because he was uninvolved (by his own choosing) for the first 5-6 months of the childs life & the mediator recomended short frequent visits for a period of time due to child development factors & memory retention.  At the end of May, he began having every Sat. overnights with the baby, which are ordered to culminate with EOW after our baby is age 2 (at the end of May 2006).

It has now been 3 weeks since the father has seen our baby at all, he is now going out of town (today) on vacation for another two weeks and will not see him for a total of 5 weeks before he plans to resume overnights with him. (there are no midweek visits)   I have tried to encourage him to see the baby before he leaves town (he has had the opportunity 2 of the last 3 weeks, we were on vacation 1 of the weeks) but he has declined at every turn.  I even offered to leave work early to bring the baby to him before he departs on vacation so he could see him for a while before going, but he declined again, stating that he needed to go grocery shopping.  

1)  I don't kow if you are a child development expert - but I would ascertain you have had much experience in this area... What is the typical court stance or mediator recomendation in your experience considering the baby's age of 13 months in this type of situation?  i.e. Is 5 weeks too long to go without seeing father & go right back into an overnight situation?

2)  If so, I am considering an ex parte motion to revert back in time within the step up plan to add mid-week visits & several hours each weekend rather than overnights for a period of just 2-4 weeks in order to reestablish the relationship & not cause undue trauma to the baby.  Would you recommend this course of action, or do you have any other recomendation?

Thank you!!!

[socrateaser]

>1)  I don't kow if you are a child development expert - but I
>would ascertain you have had much experience in this area...
>What is the typical court stance or mediator recomendation in
>your experience considering the baby's age of 13 months in
>this type of situation?  i.e. Is 5 weeks too long to go
>without seeing father & go right back into an overnight
>situation?

I'm not an expert in this area, at all. However, in my lay opinion, the answer can be easily determined by you, when the father arrives to see the child after his 3-week absense. If the child isn't comfortable, the child will let you know, immediately. So, the real question is: will you be comfortable, because the child will react to your discomfort and it may appear to you that the child is reacting to unfamiliarity with the father, when in reality, the child is keying off of your anxiety.

>2)  If so, I am considering an ex parte motion to revert back
>in time within the step up plan to add mid-week visits &
>several hours each weekend rather than overnights for a period
>of just 2-4 weeks in order to reestablish the relationship &
>not cause undue trauma to the baby.  Would you recommend this
>course of action, or do you have any other recomendation?

I think it's a crap shoot, frankly. A lot of it depends on the father. Some men are better with babies than others, and since I don't know the dad, I can't say. But you can. You know whether he's got a nurturing side or not. If he does, then I wouldn't worry about it. If he doesn't, well, maybe you need to take a step backwards.

From what you've written here, the dad seems fairly disinterested in exercising parenting time. But, that could be your belief coming through, rather than a balanced view. Do you have a decent relationship with the father's mom? Ask her opinion. If she's on your side, then maybe you can get her to advise her son to slow down a little for the kid's sake.

[cascole]

>I'm not an expert in this area, at all. However, in my lay
>opinion, the answer can be easily determined by you, when the
>father arrives to see the child after his 3-week absense. If
>the child isn't comfortable, the child will let you know,
>immediately. So, the real question is: will you be
>comfortable, because the child will react to your discomfort
>and it may appear to you that the child is reacting to
>unfamiliarity with the father, when in reality, the child is
>keying off of your anxiety.

In all honesty, I will be comfortable as long as our baby is.  I rather enjoy a break from time to time, and knowing that he's bonding with dad at those times is typically reassuring for me.  I am truly just concerned that the child will not remember him after a 5 week absence.


>From what you've written here, the dad seems fairly
>disinterested in exercising parenting time. But, that could be
>your belief coming through, rather than a balanced view. Do
>you have a decent relationship with the father's mom? Ask her
>opinion. If she's on your side, then maybe you can get her to
>advise her son to slow down a little for the kid's sake.

It is my opinion based on his actions (now & in the past) that the baby's father is interested in spending time when it's convenient for his schedule, otherwise not.  Although I have a decent relationship with his mother & keep her updated on milestones, send photos etc, she lives in another state & has never seen the baby.  She takes the stance that 'I just want my son to be happy', and would rather not get involved at all, so I doubt that would be an option in this case.

A follow up question

1)  If I just wait & see how the baby reacts to him after not seeing him for 5 weeks - and if I do think it best at that point to take a step back for a few weeks, wouldn't I be in contempt, or is this something I would file as an ex parte the following day & thus avoid any possible charge?

Thak you for all your help, yet again!

[socrateaser]

>1)  If I just wait & see how the baby reacts to him after not
>seeing him for 5 weeks - and if I do think it best at that
>point to take a step back for a few weeks, wouldn't I be in
>contempt, or is this something I would file as an ex parte the
>following day & thus avoid any possible charge?

You may be in contempt to withhold the child from the father without new orders, however, in order to tell you with any accuracy what your options are you'll need to post the exact words of your custody/visitation/parenting orders.

[cascole]

Here are the exact words of the order in relation to the step up plan.(which was the mediators report):

The father has had very limited contact with teh child, so a period of adjustment and a step-up plan seem to be in order.  Because children of this age have not yet developed the capacity for long term memory, what seems to work well are short, frequent visits.

Beginning Oct 19, 2004, shall be in father's care from 5pm to 7pm on Tues & Thurs each week and from 10am to 2pm on Sat each week for a period of 4 months.  

After 4 months, the Saturday time shall be increased to 10am to 7pm.

When is 1 year old, he shall bein father's care from 10am Saturday to 10am Sunday.

When reaches the age of 2 he shall spend time with the father on alternating weekends from 6pm Fri to 6pm Sun.

___________________________
We have completed the first two 'steps', and started the overnight Sat.'s at the end of May when the baby turned 1.  Father last saw him on June 26 & will not see him again until July 30.

[socrateaser]

OK, now tell me what are the custody orders (exactly -- joint legal and physical; sole physical, joint legal; sole custody with visitation; etc.)?

[cascole]

The parents shall share joint legal custody.

The primary residence shall be with the mother.


Also, another provision (probably doesn't apply since it's intent is toward NCP) but is in relation to schedule changes:

At least 24 hours notice of any schedule change shall be given to the other parent.  The parent requesting the change shall be responsible for any additional child care that results from the change.

[socrateaser]

OK, both of you have joint custody, meaning you jointly have independent authority to make decisions as to the child's health, education and welfare. You have the primary duty to care for the child on a day to day basis, and the other parent has the right to exercise custody over the child as per the court's orders.

The father is not exercising visitation. He is exercising custody and there's a big legal difference. If you refuse to turn the child over at the court ordered place and time for any reason other than some reasonable belief of irreparable harm to the child, then the father can ask the Sheriff or CPS to remove the child into father's custody.

So, yes, you would be in contempt to refuse, unless you were to testify that you believed that the child was likely to suffer irreparable harm if you transferred custody at the time where the contempt allegedly took place.

If you really believe that there's gonna be a big problem, then you could ask for an emergency order, but that would mean testifying that you believe the child will suffer irreparable or great harm if father is permitted to exercise custody according to the current schedule.

So, it's up to you, really, with what you feel comfortable telling the court. I have little doubt that the judge would grant the temporary order, but you're the person who must swear that the child will suffer some extreme distress as a consequence of the father's absense.

[cascole]

Thank you so much for your input.  I don't want to have to go this route or possibly face contempt, but I feel I may have to pursue this if baby does not remember... but I won't know that until he shows up in another 10 days.  I guess my best best is to take my chances & go from the point of any (possible) potential reaction or problem.  

Would you suggest a letter to his attorney as a place to start?  Or would this just be a waste of time & effort?  Although we settled this in October, I don't believe she has removed herself from the record as his counsel.  (I never received notice if she has).

Thanks again, Soc... you're a true blessing to so many.

[socrateaser]

>Would you suggest a letter to his attorney as a place to
>start?  Or would this just be a waste of time & effort?
>Although we settled this in October, I don't believe she has
>removed herself from the record as his counsel.  (I never
>received notice if she has).
>
Sure, send a letter expressing your concern for the child's welfare, and ask that the attorney express your anxiety to his/her client. Maybe, the attorney will give some candid advice that the father should try to stay involved at the risk of having his parenting time diminished, and his child support increased as a consequence.

But do not threaten legal action, because that will just annoy, and you won't get anything out of your efforts.