Clarification

[Sunshine1]

Soc, I hope you can help here.  DH's divorce decree spells out visitation and then in a new paragraph says the following for summer visitation.

"During the summer months when school is not in session (June, July, and August) Respondent shall be entitled to one-half of the summer months as parenting time with the childre.  Respondent is entitled to uninterrupted parenting time witht eh children for two weeks at a time.  Respondent must notify the Petitioner of the summer parening time that she will have the children no later than May 1st of every year.  The parties shall cooperate with eachother in determining the summer schedule."

BM has never given us a schedule for the summer months we always ended up sending her one, and then that was that.  She took her visitation for whatever we set up.

In Jan of 04 a parenting plan was drawn up and the judge signed it.  in 04 we came to an agreement of a summer schedule, and in 05 quite a few drastic things went down between the homes and BM exercised 2 weeks in June and July but not in August due to a TRO.

We questioned this before, and the children were not in any kind of questionable harm when with her until summer of 05.  In the parenting plan it does not spell out summer visitation, it gives for extra time as liberal and frequent for anything she wants them for with prior reasonable notice and to stop by if she is int he neighborhood to go for lunch or dinner or whatever and at the end of that order it says the following:

"This permanent parenting plan shall supercede all before it, and may not be modified and or re-evaluated within 24 months of its original date and approval by the court set forth herein.  When such time has reached these requirements both parties shall seek mediation for any disputes or changes.  At any point in thie this Permanent Parenting Plan may be changed with the consent of both parties and all modifications must be signed and dated by both parties therfore making it a legal document and filing it with the court."

We have always sent a copy of the summer schedule to the court admin for the file.  there id now extremely high conflict between the parties and BM had sent us her mental evaluation for SSI rendering her a 40 out of 100 in mental status and a list of disorders that prevent her from working or completing everyday living duties.  She is also unable to drive because she has a suspended license, which is limited now and has strict restrictions and times when she can legally drive.

DH is very against sending them for two weeks at a time now due to all the things that have been going on...(long list, will elaborate if you need me to)  BM has a free attorney, so avoiding court would be great if it is cut and dried. BM will start WW4 if it is not plain and simple.

 Both children will also end up in summer school this year and there is a clear provision for this and it references their summer vacation, but not her summer parenting time, (exact wording)...

"In the event said children shall be required to attend school during summer vacation, parenting time for respondent shall be set up when said children have completed their educational programs"

Ok our questions now:

1.  Given the wording of our orders, is the summer visitation cancelled out by the new parenting plan?

2. BM has not sent a schedule yet and probably won't, if the above question is yes, do we just carry on with the regular visitation?

3. Does the summer school provision imply that there is summer visitation or that we will set up something when they are done?

4. If we don't send a schedule and we send them for the weekend and she doesn't return them, would it be considered contempt?

4. Going crazy with this, have any good recipes for cocktails?

3.  Anything you have to add....greatly appreciated!

Thank you!!

[socrateaser]

>"In the event said children shall be required to attend school
>during summer vacation, parenting time for respondent shall be
>set up when said children have completed their educational
>programs"
>
>Ok our questions now:
>
>1.  Given the wording of our orders, is the summer visitation
>cancelled out by the new parenting plan?

Based on your post, I don't see the conflict between the new and old plan, but if there is a conflict the new plan "supersedes" the old. Otherwise, the old plan remains in force.

>
>2. BM has not sent a schedule yet and probably won't, if the
>above question is yes, do we just carry on with the regular
>visitation?

Yes.

>
>3. Does the summer school provision imply that there is summer
>visitation or that we will set up something when they are
>done?

Extremely vague. I would take it to mean that the parties should reasonably attempt to make up any lost time with whatever part of the summer remains. But, there probably wouldn't be much if there were summer school. Anyway, it's too vague to enforce in any meaningful way.

>
>4. If we don't send a schedule and we send them for the
>weekend and she doesn't return them, would it be considered
>contempt?

Doubtful. The plan is ambiguous sufficient to make contempt impossible. You would need a clarification and enforcement order to force her to return the kids before school begins, in my opinion.

>
>4. Going crazy with this, have any good recipes for
>cocktails?

I only drink http://en.wikipedia.org/wiki/Irish_coffee.

>
>3.  Anything you have to add....greatly appreciated!

1 + 1 = 2; drink irish coffee; 2 + 2 = who cares!

[Sunshine1]

The DD gives summer visitation, the PP does not and it says "supercedes" all plans before it.

1. Does that mean PP overrules DD, therefore there is no summer visitation, just regular visitation?

2. If yes, if they go for a weekend visit and she doesn't return, we can pick them up like normal because there is no spelled out visitation?

3.  Irish coffe ..mmmmm...yummy!!!

Thanks!

[socrateaser]

>The DD gives summer visitation, the PP does not and it says
>"supercedes" all plans before it.
>
>1. Does that mean PP overrules DD, therefore there is no
>summer visitation, just regular visitation?

Supersede means "takes precedence over." It does not means "terminates the preceding order."
>
>2. If yes, if they go for a weekend visit and she doesn't
>return, we can pick them up like normal because there is no
>spelled out visitation?

Answer is that it doesn't erase summer visitation, in my opinion, but I'd have to read both entire docs before I would stand by this statement.

>
>3.  Irish coffe ..mmmmm...yummy!!!
>
>Thanks!

[Sunshine1]

ok, I wrote the PP and there is nothing in there regarding summer visitation on a 2 week schedule or anything for that matter regarding it.  Overlooked..probably.  Never a problem until this year.

I wrote exact text of both orders.  DD states 2 week intervals, PP says nothing and at the end states "supercedes all before it".

Even if the DD is the deciding factor, BM NEVER sends her intent to exercise her visitation by May 1st.

DH absoltuely does not want to send them for 2 week intervals and keep the EOW and the mid weeks.  Less danger and it does not make the 8 & 9 yo the babysitters for their mother and a 4, 3, and 2 year old.

We would love to go back to court to get supervised visitation but no matter WHAT we do she comes out smelling like a rose and we miraculously she is all better when court rolls around and we are just tired...if there is a loop hole we would love to find it.

1. Ok, so what we are trying to get at is, which order do we follow?

2. If no desired dates are sent, what should we do?

[socrateaser]

>1. Ok, so what we are trying to get at is, which order do we
>follow?

Legally, to supersede means to preempt or override. But, if the superseding order is silent on an issue, then this would not necessarily set aside the prior orders in the area of silence.

However, supersede can also be interpreted to expressly mean to render null and void and replace. So, it could be read to vacate the prior order.

The problem you face is that where an ambiguity exists, courts generally rule against the draftsperson. In this case, you admit to have written both orders, therefore, any ambiguity will be interpreted in favor of the other party.

In either case, an ambiguity renders enforcement by contempt impossible, because an order must be unambiguous in order to violate it with conscious and willful disregard.

So, you're stuck in the gray area. If you want it fixed, you must either negotiate or get a court to rule.

>2. If no desired dates are sent, what should we do?

Once again, if you're in a vaguary between the two orders, then the other party will not be able to obtain a contempt order, as long as you can show your interpretation was a reasonable one.

If the order is unambigous, then you must do what it says or risk a contempt (or get a clarification from the court on the issue).