Just got Ex Parte notice... what to do?

[DecentDad]

Soc,

I just received Ex Parte notice for tomorrow morning.

Biomom tried for sole custody in June 2005, tried to eliminate my overnights in Aug 2005.  Judge denied her motions.  Same judge will hear the Ex Parte.

Next week is child's spring break.  Two weeks ago, biomom asked me via email to give up my spring break time with child and asked if I would give up my summer vacation time with child.  I declined.

I'm required to give biomom my summer vacation notice by April 15.  I sent it to her yesterday, fully compliant with court orders to which we STIPULATED in May 2005.

This morning I'm advised that opposing counsel is moving for the following via Ex Parte for tomorrow:

A.  Appoint GAL
B.  Terminate overnights in my home until GAL's report
C.  Failing #2, shorten child's time in my home (I only have 35% now)

To my knowledge, child has not been seen by any therapist since 2004.  There is no evidence that child is struggling in my home, unless it's manufactured.  Child is doing wonderfully, as always... but she did seem "off" last night and I couldn't get her to discuss anything.

I just received child's report card (kindergarten) yesterday, and she has "satisfactory" marks in everything (i.e, there were no "needs improvement" marks, the only other mark for kindergarten).

I received an email from biomom yesterday, stating that she kept child home from school yesterday because child was extremely tired Tuesday night (i.e., but child was last in my care on Monday morning).

I don't want to have to pay for a GAL.

Reminder: evaluator's report in 2004 found us both to be good parents.  He found that biomom is abnormally paranoid per MMPI2 scale 6.  He reported that biomom has great difficulty managing conflict in her life.  He dismissed all the claims of neglect biomom had made about me.  He recommended 50/50 to begin summer 2006.

1.  Do I need to bring in any evidence tomorrow?  I have plenty of declarations from Aug 2005 (people calling me a good father), to counter her sole custody motion then.

2.  How do you recommend I argue this tomorrow?

[socrateaser]

>1.  Do I need to bring in any evidence tomorrow?  I have
>plenty of declarations from June 2005 (people calling me a
>good father), to counter her sole custody motion then.

>2.  How do you recommend I argue this tomorrow?

 Let's take this one step at a time:

1. Is this actually an OSC to "modify custody," or does it merely request a change in parenting time?

The difference is that under CA case law, to change custody requires clear and convincing evidence of changed circumstances affecting the child's best interests, while a change in parenting time requires only a preponderance of evidence that it is in the child's best interests to modify the allocation of parenting time.

2. What facts are alleged in the declaration of the mother or the attorney that the court will be asked to weigh against the mother's burden of proof?

At the moment, you're asking me to create an argument against the wind (no substance).

3. In addition to the above-described burdens of proof, an ex parte motion/OSC requires that the movant allege facts showing that irreparable harm will occur to either mother or child unless the mother's requests are granted immediately.

So, if the declaration alleges no facts demonstrating irreparable harm, then your response is to state same, and suggest to the court that the OSC is frivolous, should be denied forthwith, and that the mother and opposing counsel should be sanctioned for wasting the court's time by offering a pleading that does not make a good faith argument on the merits.

If the request is to change custody, and the declaration satisfies the irreparable harm requirement, but contains merely allegations absent any clear and convincing proof of changed circumstances (i.e., expert reports of abuse or failure to thrive or SOMETHING, etc.), then your argument pretty much identical to the previous one suggested, except that now the motion is frivolous because it fails to actually offer anything close to clear and convincing proof of changed circumstances.

It's not enough to merely allege clear and convincing (aka "substantial") evidnce -- the moving party must actually produce some of the evidence. Same goes for irreparable harm.

If the request is simply to modify parenting time, and then the question is what is the proof offerred: is it credible, is supported by any third party expert report or testimony?

If not, then do the allegations by themselves suggest that the child's best interests are served by modifying the allocation of parenting time?

If you get to this point in your analysis and the evidence is really just "he said she said," then that is your argument, i.e.: mother does not present any evidence other than her own testimony that the child's best interests would be served by a change in the allocation of pareting time, thus the request for appointment of a GAL is not supported by credible evidence and the motion should be denied.

You could also request, that in the event that the court is seriously considering reopening the custody or parenting issue, that because the previous evaluator's reports describe the mother as unreasonably paranoid, that she be required to submit to a psychological evaluation prior to any GAL appointment, so as to determine whether she may be suffering from a mental disorder that is likely to cause her to unreasonably evaluate the child's best interests. And, you can further suggest that you would be willing to submit to another psych eval as well.

This last thought is sort of a "Your honor, the child's mother is nuts, but I'm not gonna come right out and say it."

You need to make the judge see that you're just going along doing your life and mom is sitting around hatching plots to plant land mines in your path.

[socrateaser]

...to any claim that the child is in any sort of distress.

[DecentDad]

Thanks, I'm jotting down some of those contingencies, depending upon what happens.  Judge got annoyed with opposing counsel in August 2005, so I hope it's the same reaction if biomom is just rehashing her unfounded opinions.

I have received no pleadings at all... so I'm creating an argument against the wind.  I just have no more to give you.

I have no idea what they're going to allege, as there has been NOTHING significant that has happened in this child's life since August 2005 (at least to which I'm aware), when mom last asked for sole AND alternatively asked to eliminate overnights.

From the 30 second conversation I had with the attorney (who wasn't forthcoming at all), it sounds like it's a motion to do exactly what I outlined... just eliminate overnights in Dad's house until a GAL can investigate whether the overnights are okay for the child.  Attorney didn't mention emergency custody change.

Either it's another incident of "mom is a nut" or something new has been manufactured, conveniently right before I'm supposed to spend spring break with child.

With regard to irreparable harm... the mother released the child to me yesterday for an overnight.  The Ex Parte was on calendar before the mother saw child again (i.e., I took child to school this morning, right before getting notice of the Ex Parte).

So... clearly it's not based upon anything from last night.

Now, if I thought my child was in irreparable harm, I would not release my child to an abuser, molestor, etc REGARDLESS of what court orders say.

1.  So, is it a valid defense to "irreparable harm" to point out, "Look, mother thinks child is in such danger, yet she released the child to me for an overnight while concurrently putting this Ex Parte on calendar?!"

2.  If mother independently took child to a biased therapist who corroborates something the mother is claiming, how to counter that person tomorrow at Ex Parte?  She did this in the middle of the 730 (two years ago), and evaluator noted in his report that mother never left child alone with that therapist, so child may likely have been responding to mother's presence; as child spoke differently when alone with evaluator.

3.  Does it behoove me to have a stack of "dad is a good father" declarations handy?  Or it's just up to biomom to prove her case, and if she does, I got no real fight?

4.  Does it behoove me to come in with deposition copies from 2003 and 2004, showing where mom says the same thing year after year after year, in her vendetta to prohibit child from spending the night in my home... and that this is just more of the same?

5.  Finally, have you EVER heard of a case where one successfully argues, "Yes, he's a good caretaker when the sun is out, but at night, child is not safe in his care."

[DecentDad]

This was emailed to me on March 22...

It shows desire to disrupt my spring break and summer vacation with child, with no mention of irreparable harm.

Three weeks later, she's going Ex Parte.

-----------------
I am concerned that in April CHILD will have 6 consecutive overnights because of spring break. I would like for us both to agree to keep the regular schedule so there are no additional overnights in April.
 
Also, I am very concerned that this summer our stipulation allows for us to both have 3 consecutive weeks of vacation with CHILD. I would like for us to agree to three weeks, but day time visits without the overnights.
 
I have always been hopeful that CHILD would eventually adjust to the overnights, but after three years she still has not adjusted.
--------------


(Everyone involved in this case, except for mother, has concluded child does fine in my care).

Mother never produces evidence, only says that she knows child suffers.

Regarding overnights, child has actually been doing it in both homes for 4 years... including 3 weeks in my home last summer with no complaints from mother that it harmed child.

[DecentDad]

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[socrateaser]

>1.  So, is it a valid defense to "irreparable harm" to point
>out, "Look, mother thinks child is in such danger, yet she
>released the child to me for an overnight while concurrently
>putting this Ex Parte on calendar?!"

Excellent point.

Also, if you have a fax machine, I would fax the attorney a letter requesting that you fax the pleadings and evidence for tomorrow over to you immediately.

Then, if the attorney doesn't do it, you can can argue that the attorney failed to make any good faith attempt to provide you with any evidence prior to the hearing and therefore, that none of the evidence should be admitted.

>2.  If mother independently took child to a biased therapist
>who corroborates something the mother is claiming, how to
>counter that person tomorrow at Ex Parte?  She did this in the
>middle of the 730 (two years ago), and evaluator noted in his
>report that mother never left child alone with that therapist,
>so child may likely have been responding to mother's presence;
>as child spoke differently when alone with evaluator.

School records are fine, mother released child to me last night, no extrinsic evidence of any problems other than a hearsay therapist's report. What's wrong with this picture, your honor?

>3.  Does it behoove me to have a stack of "dad is a good
>father" declarations handy?  Or it's just up to biomom to
>prove her case, and if she does, I got no real fight?

Unless the declarations are from this week, they're probably inadmissible. But, you can bring them along.

>4.  Does it behoove me to come in with deposition copies from
>2003 and 2004, showing where mom says the same thing year
>after year after year, in her vendetta to prohibit child from
>spending the night in my home... and that this is just more of
>the same?

Yes, that could be some good stuff, assuming it supports your argument that mom is just trying to punish you for trying to be involved in the child's life.

>5.  Finally, have you EVER heard of a case where one
>successfully argues, "Yes, he's a good caretaker when the sun
>is out, but at night, child is not safe in his care."

No, but anything's possible. You obviously have something particular in mind. If there's a false allegation of abuse, offer to take a polygraph in exchange for mom doing the same. That will shut her down instantly.

[socrateaser]

>This was emailed to me on March 22...
>
>It shows desire to disrupt my spring break and summer vacation
>with child, with no mention of irreparable harm.

It shows me that mom continues to be concerned about something that you're not concerned about, and could end up creating sufficient evidence to have a GAL appointed to investigate. I don't know that I would offer that into evidence.

>(Everyone involved in this case, except for mother, has
>concluded child does fine in my care).

Well, you need Everyone to sign a declaration to that effect or it's just your unsupported opinion. If you can prove this statement, then you're home free.
>
>Mother never produces evidence, only says that she knows child
>suffers.

Maybe she has some evidence. Try to get it from the attorney today.

>Regarding overnights, child has actually been doing it in both
>homes for 4 years... including 3 weeks in my home last summer
>with no complaints from mother that it harmed child.

This is a better argument, and it's why I wouldn't be presenting that email. Absence of complaint is admissible as proof that no injury has occured.

[DecentDad]

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[DecentDad]

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