Need your expert opinion :)

[forthekids24]

Santa Clara County, CA

DH has primary custody.  BM lived out of the area until approximately 6 months ago.
DH tried to negotiate an increased timeshare with BM, but she refused all offers DH made and got a lawyer in April.

Our reasons for not agreeing to BM's timeshare proposal (eow, and 2 overnights per week)  is that she consistently acts against the best interest of the children and is not responsible enough to care for them for mid-week overnights during the school year.

BM has had the children for her summer parenting time for a month now.  

During the past month :

-BM has left the children in the care of her mother for 1 week, without offering DH to have the children.  (BM lives with her parents)

-BM has neglected to get the children the summer reading books as required by school.  (The children called home and we ordered though Amazon and shipped them directly to them)

-BM has also had her mother take SD to a medical appointment, even though DH offered to take her if BM was unavailable to take her.

-BM has refused to let the children attend a family wedding with us even though we gave her more than a months notice.

-BM has not responded to numerous email requests to have the children for a day to see their visiting Grandmother.

-The children do not have their own room at BM's house; they share a room and a bed with BM.

Mediation didn't work; we now have a Judicial Custody Conference coming up.


Questions:

1) Will the facts I listed above be enough to give the Judge the information she needs during the JCC?

2) I know you can't tell the future, but what do you think the outcome of the JCC will be?  Will the Judge order a change, or that the status quo is to be maintained?

3) What if anything should we document to bring up at the JCC?

Thanks!
FTK

[socrateaser]

>During the past month :
>
>-BM has left the children in the care of her mother for 1
>week, without offering DH to have the children.  (BM lives
>with her parents)

If the court orders permit BM to exercise parenting time during this period, and there is no right of first refusal in the orders, then BM can lawfully delegate a temporary guardian during her parenting time. Lacking the necessary facts for analysis, BM's delegation may, nevertheless, be lawful.

>-BM has neglected to get the children the summer reading books
>as required by school.  (The children called home and we
>ordered though Amazon and shipped them directly to them)

You're the custodial parent, and if BM pays support to you, then school books are your legal/financial responsibility to provide, not hers.

>-BM has also had her mother take SD to a medical appointment,
>even though DH offered to take her if BM was unavailable to
>take her.

This is the same issue as with the general guadianship delegation. Unless your court orders prohibit it, BM's mom can take the child to the doctor.

>
>-BM has refused to let the children attend a family wedding
>with us even though we gave her more than a months notice.

Once again, I don't have your custody orders, so I can't tell if this is a violation or not.

>
>-BM has not responded to numerous email requests to have the
>children for a day to see their visiting Grandmother.

Same issue.

>
>-The children do not have their own room at BM's house; they
>share a room and a bed with BM.

Same issue.

>
>Mediation didn't work; we now have a Judicial Custody
>Conference coming up.
>
>
>Questions:
>
>1) Will the facts I listed above be enough to give the Judge
>the information she needs during the JCC?

See my comments above. I think you're making a mountain out of a molehill.

>
>2) I know you can't tell the future, but what do you think the
>outcome of the JCC will be?  Will the Judge order a change, or
>that the status quo is to be maintained?

Even though none of the BM's acts appear to be contempt, I also don't see any reason for any change in parenting time. I think the status quo will remain in force.

>3) What if anything should we document to bring up at the
>JCC?

Credible proof of some actual harm done to the children by the BM, either by her actions or ommissions.

[forthekids24]

Hi Soc,

Sorry I didn't include this information before.  I was trying to keep it short :)

BM tends to use her parenting time to keep the children away from us instead of actually spending time with them.  This is part of what we are trying to prove.

There is a first right of refusal in the current parenting plan.  12 hours or overnight.  Our lawyer has already sent a strongly worded letter to her on this one.

There is a support order, but she doesn't pay.  She has not provided her employement information or her paystubs.

She is also ordered to pay for 1/2 of the childrens school and associated expenses, but again she does not reimburse.

The children are 11 and 13.

Does this change any of your answers?  :)
Thanks!
FTK

[socrateaser]

>Hi Soc,
>
>Sorry I didn't include this information before.  I was trying
>to keep it short :)
>
>BM tends to use her parenting time to keep the children away
>from us instead of actually spending time with them.  This is
>part of what we are trying to prove.
>
>There is a first right of refusal in the current parenting
>plan.  12 hours or overnight.  Our lawyer has already sent a
>strongly worded letter to her on this one.
>
>There is a support order, but she doesn't pay.  She has not
>provided her employement information or her paystubs.
>
>She is also ordered to pay for 1/2 of the childrens school and
>associated expenses, but again she does not reimburse.
>
>The children are 11 and 13.
>
>Does this change any of your answers?  :)

Leaving the child with the grandmother for a week. This would be contempt without giving you the right of first refusal. But, I doubt that the judge would do much more than slap her wrist, because if he would, then your attorney would have already filed a motion for contempt.

Providing the children's school books. Depending on the exact words of the order, she may be responsible to actually order the books, or she may only be responsible for paying for half of their cost, so I can't really tell if her actions her are contempt or not.

Failure to pay support. This is contempt without any evidence, other than proof that the order to pay is valid and enforceable, the mother knows of the order, and she doesn't pay. Her only defense is involuntary inability to pay, i.e., no assets and no job. If she can't prove that she can't pay through no fault of her own, then her failure to pay is willful and she is in contempt.

The court is not supposed to consider failure to pay support as a rationale for taking away custody, but, judges do it anyway, so maybe you can make a case based on all of this stuff that really doesn't add up to a change in the status quo, but the judge could use it all as a pretext for taking away parenting time for failing to pay support.

My advice is that you try to figure out why the mother doesn't want to be a part of the children's lives and address it directly. You could just ask her, cause apparently nothing else is working.