Motion to Amend

[HelpingHands]

Settlement agreement reached and ordered 8/05.  Joint custody, mother having primary residential father having specific visitations and phone contact.  

mom filed to amend custody/visitation order 3/06
dad files show causes for contempt 4/06
preliminary hearing 5/06- GAL appointed, case set for trial after mom admitted to at least the one contempt charge.

Mom states that she is dropping the charges against dad. Mom's motion wanted visitations stopped or supervised only, because she claims child doesn't brush her teeth daily, eats junk food, blah blah blah in dad's home. Dad filed for contempt for not allowing phone contact and trying to prevent pick up to begin visitations by removing child from school early.  Child informs dad that mom took her to a pool hall, later found out it was a BAR while in mom's custody just days after the preliminary hearing.

Trial is set for the end of August 06 . Contempt charges will stick, there's physical proof that mom took child out of school and that she denies phone contact and interupts calls. Child confirmed with GAL the phone issues. Didn't know about the bar issue at the time of GAL meeting while in dad's care.

Questions:
1) Since mom already has a motion to amend custody/visitation filed and set for trial, can dad file motion to amend custody/visitation to be heard at the Trial with  the other motions/show causes based on new information/discovery not known until now?

1a- Can mom actually withdrawl her motions, or does she have to appear in court and tell the judge, she wishes to not persue her case?
(wondering if she is just blowing smoke to avoid the GAL meeting)

2) When filing the motion to amend, what terminology would best be used to describe the bar incident? (neglect, poor judgement?)

3)Do you beleive  mom's repeated pattern of filing court papers, settling then refiling and frustrating the court order, along with the current contempt charges combined with the bar incident- be enough to modify the court order to father having primary residential custody?

4)What evidence would be necessary(or admissable) in proving that the child was in fact in the bar, besides hearsay that she accurately descibed the inside and pointed out the location?Would she have to testify(7 yrs old)

5) Mom is continuing to contempt herself on other unaddressed issues. Is it advisable to file those along with the motion to amend or will it appear to be nitpicky  to add addtional charges?
 

This is a virginia case. If you need more specifics I can provide them. Thank you.

[socrateaser]

>Questions:
>1) Since mom already has a motion to amend custody/visitation
>filed and set for trial, can dad file motion to amend
>custody/visitation to be heard at the Trial with  the other
>motions/show causes based on new information/discovery not
>known until now?

Yes, any issues raised during discovery can be pursued at trial and you can supplement the court filings with a motion/petition for affirmative relief, based upon newly discovered evidence.

>
>1a- Can mom actually withdrawl her motions, or does she have
>to appear in court and tell the judge, she wishes to not
>persue her case?
>(wondering if she is just blowing smoke to avoid the GAL
>meeting)

Generally, the court must dismiss, but court's routinely do so upon request of the complaining party and a good cause showing (i.e., "clear justification"). Other party is entitled to object to the dismissal, or request that dismissal be "with prejudice," so as to bar relitigation of the issue later based on the same evidence.

>
>2) When filing the motion to amend, what terminology would
>best be used to describe the bar incident? (neglect, poor
>judgement?)

How about dis:

Child in a bar is not in the child's best interests, because it is a violation of a safety statute intended to protect children. If the other parent acts in defiance of public policy, to the child's detriment, the court should take reasonable steps to prevent any reoccurence.

>3)Do you beleive  mom's repeated pattern of filing court
>papers, settling then refiling and frustrating the court
>order, along with the current contempt charges combined with
>the bar incident- be enough to modify the court order to
>father having primary residential custody?

filing, settling, then refiling is abuse of the legal process and you can sue for it separately if the settlements primarily favor you. Or, you can ask the court to sanction the other party for being a vexatious litigant. But, it won't generally get you any custody changes.

Frustrating your access to the child is grounds for a custody change, but only under very severe and repeated circumstances, because the court won't generally punish the child for the parent's bad acts. Usually, getting custody, in an adversarial action, means showing that the other parent is routinely putting the child in harm's way.

One trip to a bar is not gonna do it. You need proof of habit (5 times or more within a three month period -- this is not a rule, I'm just giving you a good estimate for when a judge would likely notice something is up).

>
>4)What evidence would be necessary(or admissable) in proving
>that the child was in fact in the bar, besides hearsay that
>she accurately descibed the inside and pointed out the
>location?Would she have to testify(7 yrs old)

As I just stated, one occurence is insufficient for a custody action. You are wasting your time if that's all you've got.

>
>5) Mom is continuing to contempt herself on other unaddressed
>issues. Is it advisable to file those along with the motion to
>amend or will it appear to be nitpicky  to add addtional
>charges?

Contempt is quasi-criminal, which means that the other parent is entitled to notice of the charges against him/her. So, if you don't give notice, then you can't prosecute the charge.