custody pro se questions

[TJRodolph]

Thanks for your input!

Not sure if I will be up against an attorney or not. Even if she does hire a lawyer, how can they dispute all the evidence I have against her? There is absolutely NOTHING negative she can say about me except that for about 1.5 yrs I had a crappy job and wasn't able to pay my full child support amount. But I have been paying the full amount plus arrears for a couple years now. It would be VERY good if she doesn't have a lawyer, because she always just tries to defend herself rather than think of whats in the best interest of the child.

[socrateaser]

>Question:
>1. How do I serve her with a request for documents? Just like
>filing a motion?

OK, let me preface this by saying that I cannot walk you through your case, step by step, and especially not for free. Second, I am not licensed to practice in your jurisdiction, so even if I wanted to walk you through, I could be in serious hot water for trying to help you.

Now then, a request for production of documents and other tangible things must be "served" on the other party or their attorney of record. The request must be signed by you as your own attorney, and served by some third party adult who will certify that they deposited the request in an envelope and mailed it. Certified mail is better because you have proof, but it is not technically necessary.

There is a time limit, i.e., days before trial that your request must be served by or the other party can refuse to produce. That limit varies by jurisdiction, but usually 21 days is a safe bet (sometimes 15, but I wouldn't count on it). The request needs to be properly formatted and I don't have time to show you even a general format at the moment. If you're having trouble, go to the local law library and maybe they will have sample pleadings. Otherwise, you'll need to hire an attorney to prepare the document, and most won't do it, because that's their thing.

You don't have to file a request for production with the court, but you need to keep a copy of the request for yourself and the original of the certification of service, so as to show the court that it was served in the event that your opponent claims to never have received it, or refuses to respond. In some jurisdictions, certain papers are served using "forms" made by the court system, however requests for productions are almost never part of these forms (subpoenas yes, but not requests for production). Point is, that you will have to research the proper form, unless someone from your jurisdiction who is reading this has a copy of a request prepared by their attorney from some other case that they will provide you as a template.

>
>2. How do I serve her with an interrogatory request? A simple
>letter that is sent certified return receipt? Is there a form
>sample available anywhere?

Same exact answer as above. Note, in some jurisdictions, notably Oregon, interrogatory requests are not permitted and everything is done via notice of deposition and request for production.

Interrogatories are mostly worthless, because attorneys very carefully craft responses so as to provide nearly nothing useful.
>
>3. Can the court file the contempt if she doesn't respond to
>the request for documents, or do I have to do that and have
>her served in Ohio?

She is already bound to your jurisdiction, so for an ordinary motion, you can serve via mail. But, on a contempt motion, where the court has authority to deprive the defendant of his/her liberty interests (aka "jail"), the defendant is entitled to "personal" service so that there is no doubt that they are aware that they are being subjected to a quasi-criminal action with very serious consequences. I don't know whether a motion to compel discovery in your jurisdiction requires personal service, however I'm betting it doesn't. Generally the sanction for failing to produce documents or testimony, is that the party who refuses to produce, cannot bring any evidence to rebut the evidence that they didn't provide, and sometimes their claim or defense is discarded entirely, and in your case, the court could conceivably consider the action contempt, and then hold a separate contempt hearing and then reverse custody.

It gets messy, because the constitutional rights of the defendant in criminal actions deserves extra protection.

>4. Whats the best way for a MN dad to get the mom served in
>Ohio? Do you know of any references to call for this service?

There are private process server companies in every city. Just Google the web for "process servers"

[socrateaser]

>Hi Soc,
>don't forget about my questions just above this guys
>reply....I really want to file a motin to compel discovery and
>an interrogatory request....just need to know....

Don't double post. It may actually cause me to miss your posts. I don't forget about anyone, until I see them ignoring my advice.
>
>1. File a simple motion? Does it need an affidavit with it or
>can it just be brief on the motion and attach a copy of the
>therapist record and mom's letter admitting it?

Every motion needs a supporting affidavit, and if you have evidence, then you reference and attach copies.

>2.  Can I request school of attendance AND child abuse records
>on the same motion?

You're not requesting that stuff on motion, you're serving a request for production, and if she doesn't produce, then you file a motion to compel discovery (followed by a motion for contempt, if she doesn't show at the motion to compel -- if she does, then you can move for contempt right in the courtroom).

>3. Once I file the motion in court.....I have to serve the mom
>her copy....then what happens?

I think you're way ahead of yourself, because you wrote this post before I answered your last one. You don't need a motion for anything at the moment. At least I don't think so, but I could be lost, because I''m losing track of the order of events fast.

Frankly, you need to get yourself a legal practice guide that is specific to MN jurisdiction and learn how the family law process in your jurisdiction operates. You also need to study the local trial/family court rules. Visit your local county law library.

[TJRodolph]

First off, THANK YOU for all your advice thus far, it is MUCH appreciated.

I did some research online, and I can serve the motion via mail, and it only has to be postmarked 17 days prior to the hearing date. I do know how to fill out a basic motion.

I only communicate with the mom via delivery confirmation priority mail, due to our phone conversations not being productive, i.e...she hollars and then hangs up on me. I saved every single letter over the past year and mail receipt proving she received it.

I have requested from her in several letters, to provide me the school info, the doctor info, the therapist info, to no avail. She doesn't even reply to it. I ask for the grandfather's phone number since the court order says she is to immediately provide me it since our son stays at his house more than 50% of the time. She states that her father doesn't want his number given out and that I can just call for my son at her house.

Question:
1. When I file the Motion to Comple Discovery...and in the request section, can I list that I want the info regarding child abuse AND the school info? Or do them as two separate motions?

2. If mom does not respond to motion for documentation or does not show up for the hearing, then what?

3. What exactly is the interrogatory request used for?

4. Since I have requested in writing from the mom (and proof of delivery) with no success,  is filing the motion to compel discovery the next step?

[TJRodolph]

Gotcha.

I would think that my requests to her in writing previously (which I do have proof of mail delivery) would be considered a request for production. She hasn't produced. So I will work on the motion and affidavit.

last question (honest).....
1. If she doesn't show for the motion hearing, do I have to file the motion for contempt or will the judge just order it?

THANKS AGAIN!!

[socrateaser]

>Question:
>1. When I file the Motion to Comple Discovery...and in the
>request section, can I list that I want the info regarding
>child abuse AND the school info? Or do them as two separate
>motions?

Motion to "compel", not "comple" discovery. You ask for what you've been denied and explain why it is, and these are the magic words, "Reasonable calculated to lead to the discovery of admissible evidence." This means that the evidence you seek doesn't necessarily need to be admissible at trial, but only reasonably likely to aid you in finding the evidence that will be admissible. Anything farther out is a fishing expedition. If your request is for information that directly impacts on some issue before the court, then that information is relevant and therefore discoverable.

>
>2. If mom does not respond to motion for documentation or does
>not show up for the hearing, then what?

You haven't even served her with the request for production, so stop trying to get ahaad of yourself. You don't need a motion to compel discovery until the other party has failed to discover within the time required. Then you need to tell them if they don't immediately respond to the request, that you will file a motion to compel. Then if they don't respond, you file.

>
>3. What exactly is the interrogatory request used for?

"interrogatory" means "questions." You ask specific questions, like the name of the witnesses that the party intends to use at trial, or the address and phone number of the child's physicians. Statistical stuff that doesn't permit much evasion is best.

Although, if she doesn't have an attorney, you may be able to squeeze something really juicy out of her by accident, but if you have to compel the answer by motion, the judge may disallow the question, so I'd stick to basic statistical info in the interrogatories.

There are also, "requests for admissions" which are direct questions that the other party must either admit or deny or state that they have insufficient information to admit or deny. Such questions can be extremely useful because if you get an admission, then that issue is conclusively presumed true and the other party cannot introduce evidence at trial to contradict the admission. But, this is rarely used prior to an initial hearing -- it's only for when the case has proceded far enough to merit eliminating any obvious issues that don't need to be tried, and if you spring them early, the judge will get annoyed with you.

>4. Since I have requested in writing from the mom (and proof
>of delivery) with no success,  is filing the motion to compel
>discovery the next step?

You need to "serve" a "formal" "request for production." A simple letter stating that you want some info is not sufficient. This is court, not a high school debate. If you don't play by the rules, you will get your ass kicked by the judge.

[socrateaser]

>Gotcha.
>
>I would think that my requests to her in writing previously
>(which I do have proof of mail delivery) would be considered a
>request for production. She hasn't produced. So I will work on
>the motion and affidavit.
>
>last question (honest).....
>1. If she doesn't show for the motion hearing, do I have to
>file the motion for contempt or will the judge just order it?
>
>THANKS AGAIN!!

The court will order discovery sanctions. Look them up in the MN code of civil procedure. If the other party doesn't show for a motion to compel, the sanctions could be pretty stiff, but I seriously doubt that a reversal of custody will be ordered. Although, if you actually got to this point, you could ask for the court to issue a warrant for her arrest, and temporary custody of the child during the period of incarceration.

That's not what I'd do if there was another attorney, but since there may not be one, the judge might go for it on the theory that someone must care for the kid if the mom's awaiting a contempt hearing from inside a jail cell.

[TJRodolph]

I totally missed this reply till this morning...sorry. I understand a little better now this complicated legal process.....I will do up a request to produce documents re the child abuse, and an interrogatory request for the physician/school info....serve the mom...and wait the 30 days...then send a 2nd request, stating if she doesn't respond that I will file a motion to compel.