Court of Appeals Reversal/Remand

[CNTD]

State of New Mexico

I requested a two month suspension on timesharing with my then three year old child. I consulted with my student attorney, and stated I wanted to suspend timesharing over the summer months, so my ex-girlfriend would be able to potty train the child. The ex-girlfriend's complaint was that the child was not receiving consistency in each house hold, re: potty training. He responded that a two month suspension would not be appropriate, however a more "solid," suspension would be six months; he also stated that if after two months the child was potty trained, that I would be able to file an order reinstating the timesharing.

Fast forward to six months after the order suspending timesharing was filed. I attempted to reinstate the timesharing, and my ex-girlfriend and her attorney stated that the child did not know me, and could not just restart the timesharing as it was prior to the suspension order. I agreed that it had been a long time, and that I would agree to an integration schedule with the child. However my student attorney and my ex-girlfriend's attorney were not able to reach an agreement on my and my ex-girlfriend's behalf.

Four months later, still no agreement, and we returned to court over the issues. The judge ordered a integration schedule which entailed me seeing the child every weekend, one hour in my city, and the next weekend in my ex-girlfriend's town for 2 hours, supervised by my ex-girlfriend. Also ordering the child to attend play therapy. During this time, my ex-girlfriend called CYFD on myself and my wife multiple times with a varying allegations, all which were unfounded and cleared by CYFD. My wife and myself decided it was in our shared children's behalf that we separate, and remove them from the "playing field," for my ex-girlfriend to use as weapons against me.

My wife moved to Texas to be with her Father, and other family members. During our separation, my wife had begun dating another man. She assured me that if I were in Texas that we would be alright in our relationship. I moved to Texas very shortly thereafter, abandoning the integration schedule. The next month my ex-girlfriend filed for sole custody of the child. The hearing for that motion was scheduled for four months after the motion was filed.

At that hearing, the judge denied my ex-girlfriend's motion for sole custody, and awarded myself one overnight every other month, to occur at my mother's house, two hours from the child's primary residence. During that hearing my ex-girlfriend's attorney said that myself and my ex-girlfriend had "communication," problems and because of that she (ex-girlfriend) was unable to make decisions regarding the child. The judge awarded her the "right to make all day-to-day decisions regarding the child," to relieve her complaint of decision making. Unfortunately my ex-girlfriend's attorney was not satisfied with that, and complained that they child would be "severely traumatized," if he chose to order one overnight every other month; the judge stated that if she didn't like the decision that "that's what the Court of Appeals is for."

My wife and I moved back to New Mexico the month after that hearing occurred.

My ex-girlfriend's attorney took his advice and appealed the order, and the timesharing of one overnight every other month was reversed, and the decision on sole custody was remanded. My question is:

After the court of appeals reversed the order, and it reverted back to the prior order allowing me to see the child every weekend, in the two different cities. My ex-girlfriend is attempting to modify the order to where both timesharing events occur on the same day, in the two different cities. The order clearly has the two events dated with the dates for the events to occur, a week apart, not on the same day.

1. Can she modify the order without my agreement on the premise that she needs a weekend to herself to schedule events for the child?

If you would like to view the order for clarification, I would be obliged to e-mail it to you.

[socrateaser]

>State of New Mexico
>
>I requested a two month suspension on timesharing with my then
>three year old child. I consulted with my student attorney,
>and stated I wanted to suspend timesharing over the summer
>months, so my ex-girlfriend would be able to potty train the
>child. The ex-girlfriend's complaint was that the child was
>not receiving consistency in each house hold, re: potty
>training. He responded that a two month suspension would not
>be appropriate, however a more "solid," suspension would be
>six months; he also stated that if after two months the child
>was potty trained, that I would be able to file an order
>reinstating the timesharing.
>
>Fast forward to six months after the order suspending
>timesharing was filed. I attempted to reinstate the
>timesharing, and my ex-girlfriend and her attorney stated that
>the child did not know me, and could not just restart the
>timesharing as it was prior to the suspension order. I agreed
>that it had been a long time, and that I would agree to an
>integration schedule with the child. However my student
>attorney and my ex-girlfriend's attorney were not able to
>reach an agreement on my and my ex-girlfriend's behalf.
>
>Four months later, still no agreement, and we returned to
>court over the issues. The judge ordered a integration
>schedule which entailed me seeing the child every weekend, one
>hour in my city, and the next weekend in my ex-girlfriend's
>town for 2 hours, supervised by my ex-girlfriend. Also
>ordering the child to attend play therapy. During this time,
>my ex-girlfriend called CYFD on myself and my wife multiple
>times with a varying allegations, all which were unfounded and
>cleared by CYFD. My wife and myself decided it was in our
>shared children's behalf that we separate, and remove them
>from the "playing field," for my ex-girlfriend to use as
>weapons against me.
>
>My wife moved to Texas to be with her Father, and other family
>members. During our separation, my wife had begun dating
>another man. She assured me that if I were in Texas that we
>would be alright in our relationship. I moved to Texas very
>shortly thereafter, abandoning the integration schedule. The
>next month my ex-girlfriend filed for sole custody of the
>child. The hearing for that motion was scheduled for four
>months after the motion was filed.
>
>At that hearing, the judge denied my ex-girlfriend's motion
>for sole custody, and awarded myself one overnight every other
>month, to occur at my mother's house, two hours from the
>child's primary residence. During that hearing my
>ex-girlfriend's attorney said that myself and my ex-girlfriend
>had "communication," problems and because of that she
>(ex-girlfriend) was unable to make decisions regarding the
>child. The judge awarded her the "right to make all day-to-day
>decisions regarding the child," to relieve her complaint of
>decision making. Unfortunately my ex-girlfriend's attorney was
>not satisfied with that, and complained that they child would
>be "severely traumatized," if he chose to order one overnight
>every other month; the judge stated that if she didn't like
>the decision that "that's what the Court of Appeals is for."
>
>My wife and I moved back to New Mexico the month after that
>hearing occurred.
>
>My ex-girlfriend's attorney took his advice and appealed the
>order, and the timesharing of one overnight every other month
>was reversed, and the decision on sole custody was remanded.
>My question is:
>
>After the court of appeals reversed the order, and it reverted
>back to the prior order allowing me to see the child every
>weekend, in the two different cities. My ex-girlfriend is
>attempting to modify the order to where both timesharing
>events occur on the same day, in the two different cities. The
>order clearly has the two events dated with the dates for the
>events to occur, a week apart, not on the same day.
>
>1. Can she modify the order without my agreement on the
>premise that she needs a weekend to herself to schedule events
>for the child?

If the exact words of the prior order with respect to decision making, permit the CP to decide when to permit visitation, then she can decide. Otherwise NEITHER you nor her can decide or agree, and the terms of the order must be followed until modified.

[CNTD]

The order that stated she had the right to make "all day-to-day decisions" was the one that the Court of Appeals reversed.

The order that is now in effect, hell I'll just quote it:

6. When Mother and the minor child are in Albuquerque for the appointments at , Father will have the opporotunity for visitation with the minor child according to the following provisions:

a. The first visit will be on Sunday, April 10, 2005 for one hour;
b. The visitations will continue to occur on the dates when the child has appointments with (a schedule to be provided by Mother to Father for as far in advance as known);
c. The visits will be at the McDonald's resturant located at

unless an alternate place is agreed upon in advance by the parties;
d. Mother will supervise the visits;
e. Only the parties and the minor child will be present at the visitation.

7. Father will have he opporotunity to visit with the minor child every other Sunday, beginning April 17, 2005 in , according to the following provisions:

a. The visits will be for two hours between 1:00 p.m. and 3:00 p.m.;
b. The visits will be at a place designated by Mother;
c. Mother will supervise the visits;
d. If Father does not arrive at the place designated by Mother by 1:15 p.m. on the designated date for visitation, Mother is allowed to consider the visitation cancelled, unless Father has notified Mother in advance of a different time schedule and she as agree to alter the time for the visitation;
e.  If Father misses a scheduled visitation, he will not recieve make up time;
f. If Father misses a scheduled visitation, he will not forfeit his right to the next visitation to occur in two weeks from that date;
g. Only the parties and the minor child will be present at the visitation.

To me, and my wife it's clearly meant to have visitation every weekend, alternating between the two towns of residence. My ex-girlfriend is stating that she has the right to choose when the visitation is to occur, and I corrected that she's able to choose where it is to occur, when the timesharing is in her town, however not the date. Her attorney is confirming this decision, and I recieved a letter stating that she (ex) would need a weekend to herself to schedule events for the child, which is why she (ex) wanted the events to both occur on the same day/weekend.

I am quite appalled that she (ex) is making the timesharing seem like a massive amount of time.

[socrateaser]

>To me, and my wife it's clearly meant to have visitation every
>weekend, alternating between the two towns of residence. My
>ex-girlfriend is stating that she has the right to
>choose when the visitation is to occur, and I corrected that
>she's able to choose where it is to occur, when the
>timesharing is in her town, however not the date. Her attorney
>is confirming this decision, and I recieved a letter stating
>that she (ex) would need a weekend to herself to schedule
>events for the child, which is why she (ex) wanted the events
>to both occur on the same day/weekend.

The order is pretty express, and shouldn't be difficult to follow. Your interpretation seems correct to me -- the ex definitely cannot change the dates or times, unless you don't show by 1:15 -- then she can do whatever she wants, even if you inform her of your being late ahead of time.

>I am quite appalled that she (ex) is making the timesharing
>seem like a massive amount of time.

Don't be. It's the way of the world, and the system encourages this sort of behavior because there is rarely any consequence for a custodial parent who interferes with the non-custodial parent's access to the child -- mainly because it's so hard to prove to the judge that the interference occured.

All you can do is try to follow the order exactly and carry around a tape record and record everything whenever you communicate with the CP (and serve notice on her that you will be recording). Then, if the CP does something outrageous, you have it on tape and the judge will hear the exchange and hopefully, find the CP in contempt.

[CNTD]

My wife has encouraged me to record all telephonic communication, because that's when my ex-girlfriend really shows her arse. However I feel akward recording the calls, and I feel like should I record, and bring this evidence into court it will look bad on my behalf.

Here in NM my wife reassures me that only one party needs to be aware of the recording device. I know that if I were to make her aware of the device she would refuse to communicate with me. The only time she communicates, is when I call her. She refuses to call me, or write me. Never does she responde to the letters I send to her.

This is a huge disaster, thank you for your input.

[socrateaser]

>My wife has encouraged me to record all telephonic
>communication, because that's when my ex-girlfriend really
>shows her arse. However I feel akward recording the calls, and
>I feel like should I record, and bring this evidence into
>court it will look bad on my behalf.
>
>Here in NM my wife reassures me that only one party needs to
>be aware of the recording device. I know that if I were to
>make her aware of the device she would refuse to communicate
>with me. The only time she communicates, is when I call her.
>She refuses to call me, or write me. Never does she responde
>to the letters I send to her.
>
>This is a huge disaster, thank you for your input.

But, that's why you came here, right?

I researched the issue, for a change, and based on the case of Arnold v. State, 94 N.M. 381, I find that despite an erroneous statement from a web site purporting to display the rules for phone interception in every state, that NM is actually a two party state.

The NM Supreme Court in Arnold stated that the state statute requires consent "of the sender" to use any communication recorded in a phone conversation. Since anyone who transmits a statement on a phone call is at that moment the "sender," this makes the state two-party.

However, the general rule everywhere is that a person can give their "implied" consent to recording, by being told that they will be recorded, and then if they participate in the call, then they have consented by affirmative action.

So, my advice is still: "serve" legal notice on the other parent that you will record all future conversations, whenever and wherever they may occur, and then you don't have to tell her everytime you start a phone call. Because, if she doesn't hang up, then she's toast.

I realize that you fear you will not get any further communication from your ex whatsoever, but the alternative is that she will continue to use the child to control you anyway, so you really have nothing to lose, because you're already at rock bottom.