Impact of a "founded" case of abuse?

[medolyns]

I gained temporary custody of my now-nine-year-old daughter in 2000, and the judge awarded me full custody in the final judgment in 2003, with the court order giving the mother a pretty standard long-distance visitation schedule. All this took place in New York State, and no legal action in this case has taken place anywhere else.

My daughter moved to Louisiana to live with me when I gained temporary custody in 2000. The mother moved from NY to Massachusetts in late 2002, and then to New Hampshire this past January. Since Katrina my daughter, my wife, and I have been living in Colorado, although I travel frequently to my job in Louisiana.

Since the age of four my daughter has reported emotional abuse and verbal abuse taking place during visitations. I have documented and have sent a couple of letters to the mother about this, but since she tends to do the exact opposite of what I ask, I usually refrain.

This January my daughter disclosed to her therapist that her mother had touched her inappropriately during visitation. Our Colorado county's DSS investigated and arranged a video-taped forensic interview at a very professional child advocacy center. The county social worker found the evidence both convincing and serious, and is finishing up a report that will say that this is a "founded" case of abuse and recommend only supervised visitation--I believe pending successful treatment of the mother.

The local Massachusetts police have conducted their investigation (all incidents took place there) and turned their evidence over to the local DA. Our Colorado's county social worker is waiting to conclude her report until she hears what the Massachusetts DA decides to do.

Our local DSS seems unsure what to do to protect the child once the report is completed. Because the alleged perpetrator is not the custodial parent, they first said that their efforts would stop at the report, and they would expect us to take their report and have our NY attorney file a motion in NY to indefinitely suspend visitation. Then the county attorney took more of an interest in the case and said in order to make sure there's no slip-up he might file it here as a child protection case.

The latest word is that during the mother's taped interview with Massachusetts she denied the abuse, but said "If they don't want me to see her, I won't see her." She has a pattern of temporarily ignoring her children (this includes our two adult children) if she feels rejected and then focusing her attention on them again. I am worried that if DSS sees her not asking for visitation right now, they will not take further legal action.

1) Suppose DSS produces a strong report--as predicted--establishing this as a "founded" case of sexual abuse and recommending at most supervised visitation, but takes no legal action. Suppose I take no legal action right now because the mother doesn't try to exercise visitation for several months. Will I have difficulty revising the visitation order later on if the mother comes back two years or so later and tries to exercise her visitation? Basically, is it important to get the visitation order revised now even if the mother shows no inclination to use her visitation?

2) If--as is most likely--the mother does not follow any of the recommendations in the DSS report and also ignores her daughter for a year or so, will there eventually be a possible case for termination of parental rights?

[socrateaser]

>1) Suppose DSS produces a strong report--as
>predicted--establishing this as a "founded" case of sexual
>abuse and recommending at most supervised visitation, but
>takes no legal action. Suppose I take no legal action right
>now because the mother doesn't try to exercise visitation for
>several months. Will I have difficulty revising the visitation
>order later on if the mother comes back two years or so later
>and tries to exercise her visitation? Basically, is it
>important to get the visitation order revised now even if the
>mother shows no inclination to use her visitation?

First, your facts disclose that no one lives in the original state of jurisdiction (NY )anymore, so the next custody action, whatever it may be, should be a petition to modify in the child's home state (six months continuous residency), which apparently is now CO. If you file such a petition, the CO courts will assume jurisdiction and the mother will have to fight with you from a long distance which will substantially improve your negotiating leverage.

If you get a "founded" report, I would file the petition and ask the court to modify for supervised visitation in CO, which of course will make any significant visitation financially unrtenable, and will thereby effectively prevent the other parent's access to the child. This will avoid the rather expensive issue of trying to terminate the other parent's rights.

>2) If--as is most likely--the mother does not follow any of
>the recommendations in the DSS report and also ignores her
>daughter for a year or so, will there eventually be a possible
>case for termination of parental rights?

Sure, but as a practical matter, children grow to be adults, and finally the parent's rights are terminated by the child's reaching majority. So, if you manage to make visitation a practical impossibility, then why bother trying to terminate the parent's rights? Waste o money and time, in my opinion.

[medolyns]

Thanks so much for the quick reply, Soc!

At least some supervised visitation in CO would not be financially untenable for the mother, if she could bring herself to do it. Barring any new criminal conviction, she will continue to earn a very high salary as an internal medicine physician and has money to burn. Fortunately she's unlikely to want to burn more money in family court--after throwing away probably 30-40 thousand on the six-day custody trial (she had two out-of-town attorneys present at all times, and they brought in five or six expert witnesses).

I've been reluctant to change jurisdiction for several reasons:

* I have an absolutely first-rate attorney in NY.

* the judge and law guardian there are well acquainted with the mother's antics in the courthouse--for example, the judge knows to have bailiffs ready to protect the mother's attorney from the mother if necessary.

* the mother has already gone through most or all of the other family law attorneys in that small town, and had to go out of town to get a law firm unscrupulous enough to waste her money on the custody trial. The attorney there she's most likely to use is a realist, and will not pursue hopeless causes. She may tend to listen to him because five years ago he told her she had no choice but to settle, before she fired him and went to the out-of-town firm. After that firm spent so much of her money, lost her the case, and finally petitioned the court to release them from representing her based on inability to cooperate, she rehired the local attorney to negotiate the final details.

* we will not remain in CO beyond summer 2007, and may return to Louisiana or possibly move to the UK in summer 2006.

On the other hand, I suspect our CO county's DSS's report will carry greater weight and be more credible in a court in our county, rather than out-of-state.

1) Given these details, would you still recommend changing jurisdiction to CO? Or do we have no choice?

2) If we change jurisdiction, does it begin with our NY attorney filing a motion to this effect back in NY? Or do we begin by filing a motion here in CO?

[socrateaser]

>1) Given these details, would you still recommend changing
>jurisdiction to CO? Or do we have no choice?

Unless there remains substantial evidence in the NY county relating to the new custody action, then the fact that no parent nor child lives in NY will be dispositive. CO, now is the only state with jurisdiction over a custody modification.

>2) If we change jurisdiction, does it begin with our NY
>attorney filing a motion to this effect back in NY? Or do we
>begin by filing a motion here in CO?

If no parent or child remains in NY, then you could either register your current NY orders/judgment for enforcement in CO, and then file a motion under the case # provided by the court, or you could Petition the court under a new case #, and use your current NY orders as evidence that CO should assume jurisdiction over the matter.

If you can show that you have a permanent residence in LA, and that you are only temporarily absent from that jurisdiction, then you could file the same actil in LA, instead of CO.

[medolyns]

Again, thanks loads! We're narrowing down the question as we go.

I have been employed at the same fulltime job in LA for over twenty years. I do not own a residence there, but I am currently the official resident of a FEMA trailer located by my workplace.

In CO, my daughter, my wife and I live in a vacation condo I have owned for several years, and my daughter attends school in CO.

If we move back to LA, we will still spend several weeks each year (and probably most of the summer) in CO.

The mother would be unlikely ever to file to switch jurisdiction from CO to LA, since she hates LA and likes visiting CO.

1) Based on this information, can I show I have a permanent residence in LA and that I am only temporarily absent from that jurisdiction, so that I can file in LA?

2) Or, if CO assumes jurisdiction, can it remain there indefinitely even if we tend to spend the school year in LA?

[socrateaser]

>1) Based on this information, can I show I have a permanent
>residence in LA and that I am only temporarily absent from
>that jurisdiction, so that I can file in LA?

It's an unusual call, because of Hurricane Katrina. It really boils down to piling on evidence in favor of one place vs. the other. If your drivers license, voter registration, child's school enrollment, tax return, etc., are all done CO, then you're a CO citizen. If the majority of them are done in LA, then you're an LA citizen.

If you're asking my opinion, based on your posted facts, I'd say CO, without question. But, like I said, Katrina makes things sort of muddy and a court might side with your view that you are just waiting for your home to be rebuilt, assuming that this is what you're actually doing, of course.

>2) Or, if CO assumes jurisdiction, can it remain there
>indefinitely even if we tend to spend the school year in LA?

If you move to LA and the child goes to school there for six months, then LA would assume jurisdiction -- but not automatically -- you would need a reason to reopen the case and petition for a custody mod in LA, before the legal issue became ripe for resolution.

[medolyns]

Thanks very much for the help clarifying this jurisdiction question!