Texas - visitation denied, multiple questions

[tiredofhergames]

Original filed in Texas, all parties still reside in Texas, different counties, 50 miles apart.



I have been having problems with my ex-wife (D) denying visitations since late March of this year. My son, who is 13, had asked me about coming to live with me and my wife, and we were in the process of trying to talk to a lawyer about this, and were told that we could file for modification of custody on our own if needed.

D caught wind of it, and then tried to claim that since my wife and I argued (I had forgotten her birthday, she was upset) in front of my son, it was a "violent atmosphere", and even went so far as to try and involve CPS in it. When my wife spoke to CPS, she was told that from March to May, they get several "complaints" from custodial parents against NCPs to try and keep them from having summer visitations. Nothing further came of it.

I was allowed to speak to my son in mid May for about 2 minutes, but his mother was on the phone listening and told him that he didn't have to talk to me.

I have called a minimum of twice a week, only to get answering machines, my wife and I have both attempted to pick him up for weekend visits and summer access, only to find "no one home".

In August, D and I went before an assistant attorney general for Texas about child support. D claimed I hadn't paid it, I had proof I had. Turns out that when ex was remarried, she didn't file new name and address, so payments were sitting in limbo somewhere.

I mentioned to the assistant AG at that time that D hadn't allowed phone or physical access and visitation since March. The assistant AG told D that she could be held in contempt of court, and the possible punishments that she could incur. D again tried playing the "violent" card, to which it was asked if she had proof. To which D got mad, and refused to talk anymore.

The assistant gave me a number and website for Texas Access, and I called immediately after leaving her office.

At their advice, my wife typed up the standard "access and visitation" letters, and I began mailing a regular copy, and a certified copy each week I was to have visitation. The first week, my ex called at 3:00 p.m. on Friday to tell me my son had previous plans, and could we switch for the next weekend. I agreed, and again sent another letter outlining what we had discussed during the phone call.

My ex refused the first certified letter, and picked up the last 3 or 4 at one time - several days after attempts had been made. There are still two more certifieds waiting for pick up.

Friday we were to pick up my son, and after waiting over an hour at D's home, called the sheriff's office for a welfare check, another piece of advice from a Tx Access lawyer. They did not come near the house during the next hour or more, as we were sitting in front of it. At about 11 p.m., we received a message on our business phone from the dispatcher, and when my wife called back, no one knew anything.

Dispatcher called back Saturday afternoon and spoke to me. This is where it gets infuriating. It seems that no one ever went to the home. Instead, they called the house at regular intervals, and when D answered, they told her what was going on, to which she told them my son was fine, they had been to "dinner and a movie".

The dispatcher then asked to speak to my son, who when asked, said he was fine. No visual proof, nothing. I was under the impression that a welfare check was to be done in person. According to the dispatcher, no report was filed on this, only personal "reminder" notes were taken during the phone call.

Last week, I contacted son's school, and have since been being kept up to date on his progress. Some of it good, some not. Attempted to contact D by phone and e-mail concerning this, no reply as of yet.

Today, I mailed a "Denial of Access" letter, and another "Intent to Execise Access and Visitation" letter to D. Like all previous communication, one copy is sent First Class and another is sent Certified. I also sent copies of all of this to the District Court Clerk so that it could be added to the permanent case file.

I know I have several contempt of court motions that can be filed. This is where questions start.

1.  What do I need to do, exactly, in order to start filing the Motions for Contempt?

2.  What do I need to do to file an Ex-parte to enforce visitation?

3.  On filing the contempt motions, can I go back two months or more and file each one seperately?

4.  Is there anything else I can do that I have not already done?

5.  Should I also file a motion to modify the existing order, so that I pick up son directly from school?

6. Being as it's been so long since I've been allowed access, is it still feasable to try and modify residential custody?

7. Did the Sheriff handle the welfare check correctly?

8. If not, what can I do to ensure that next time, if needed, it is done correctly?

Thank you.

[socrateaser]

>1.  What do I need to do, exactly, in order to start filing
>the Motions for Contempt?

Process is different in different jurisdictions. I don't know TX civil procedure, so I can't tell you -- you need to contact a local attorney.

>
>2.  What do I need to do to file an Ex-parte to enforce
>visitation?

If you mean that you want to file a motion for an order to show cause for contempt, then my answer is the same as #1 above.

>
>3.  On filing the contempt motions, can I go back two months
>or more and file each one seperately?

I would put all of the "counts" in one pleading and then hope that you can get one to stick.

>
>4.  Is there anything else I can do that I have not already
>done?

Put all your evidence in front of you separated by the count you wish to prove. Then toss out anything that cannot be corroborated by a disinterested third party (someone other than your friends and family), or by a document recorded by a disinterested third party as part of their official duties or in the ordinary course of business (receipt, police report of facts -- not opinion).. Then of what remains in front of you, ask yourself if what you have proves that the other parent has willfully and with conscious disregard violated the EXPRESS terms and conditions of the court order, and whether if you were a disinterested judge, whether you would find, based on the evidence, that you had no reasonable doubt that what you are claiming occured as you claim.

If so, then you have a case for contempt. If not, then you don't. Also, be advised that in a contempt proceeding, the other parent can REFUSE to testify (5th Amendment right to be free of coerced self-incrimination).


>5.  Should I also file a motion to modify the existing order,
>so that I pick up son directly from school?

It will be much easier to modify the existing parenting plan without seeking contempt charges. Your evidence doesn't need to be nearly as sound, because you must only show that it is more likely than not that the child(ren)'s best interests will be served by what you are requesting.

So, yes, you can do this as a separate motion, and you can request the relief as part of the contempt.

>6. Being as it's been so long since I've been allowed access,
>is it still feasable to try and modify residential custody?

Not if you don't prove the contempt.

>
>7. Did the Sheriff handle the welfare check correctly?

Question of local law. Law enforcement only wants to know if a child is in serious distress. Otherwise, they tend to stay out of custody issues, because they don't want to be accused of being "big brother," trying to micromanage parents to raise their children according to the government's rules.

>8. If not, what can I do to ensure that next time, if needed,
>it is done correctly?

N/A. If you want to prove that your ex is routinely frustrating your access to the kids, then you will generally need a recording of the bad behavior made with the other parent's knowledge -- or you will need a disinterested witness, willing to testify to his/her personal knowledge of that bad behavior.