COMPEMPT V.S. EVALUATION

[craiger]

I CURRENTLY HAVE PRIMARY TEMPORARY CUSTODY PENDING AND PARENTAL EVALUATION IN A WEEK AND A HALF. MY WIFE HAS NOT FOLLOWED MOST OF WHAT IS IN THE ORDER, I WANT TO FILE FOR COMTEMPT, BUT I FEEL THE EVALUATER MIGHT LOOK AT THIS WRONGLY AND NOT WORKING TOGETHER. THIS WEEK HAD TO PAY HER PHONE BILL JUST SO I COULD SPEAK TO MY SON ON THE SET DAYS BY THE COURT VISITATION, EVEN THOUGH SHE HAS AN OTHER MAN (EX-FELONS) STAYING WITH HER NOW. HOW CAN I BE FAIR TO MY SON WHEN DURING THIS PROCESS?

[Peanutsdad]

During the evaluation stage,, you do NOT want to be percieved as vindictive.

URL: http://www.deltabravo.net/custody/guide.htm


What you want to do is express a concern for having to pay HER utilities in order to be able to excercise court ordered phone calls.

As far as the "new man" being an ex felon,, what was it for? Is he living there? and have you subpeone'd the records?

[craiger]

Thank you so much  for the advice, Grand Theft 2nd degree,Armmed Kidnapping, Robbery-Firerm, Aggravated Assault-Deadly Wepon, Burgary-Structure, Battery (Domestic), also 05-22-04 the police was call to my wifes house (Domestic Violance, marks left) with in an hour of picking up my 5 year old son. No report filed because were in court, she says getting 911 audio. Court order no non related family members to live with her. when I droped my son off this Sat 7:30am he was just waking up,  I did as the court said dropped him off so I would not be in  comtemp. Yes, I have all his records, I originaly recieved primary on a "Emergency Motion for Custody Without Notice" went to court and recieved primary and never testified, based solely on her testmony, when she ran two hour from were she lived before and hid from me, 1,700 PI bill I located my son. Once again thanks so much, it is killing me having to continue to put him in bad situations because I am ordered to do so.

[Peanutsdad]

WHOA!!!!!!


Go to your attorney TODAY!


Get an injunction AND a restraining order against this man being within 500 yards of your child. Present his record as supporting affidavit,, and the call out for domestic violence.


What this will do,, is force your ex to keep him away during her possesion time. Have the place watched,, if he shows,, call the police.

[craiger]

You are awsome, I need to hire you! I got 7,000 in these early stages and my attorney will not respond to my emails or phone calls, not on  emotional but legal advice, you seem to answer so easily? You do not know the load this take off me to find someone who knows the system, and how to work with the system. I put a call into the attorney with your email in front of me as so as I read it, of couse he is not in. You are not located in Florida, and are an attorney by chance, I could only be so lucky.
Thanks for you advice, Im blown away, your exactly what I needed, (hope).
Craig  

[Peanutsdad]

Craig,

Unfortunately, I was like you and didnt know the ropes. I WAS however lucky and got HERE early in my case.

No, Im not in florida, nor an attorney,, BUT I do know now,, that as a parent, I not only have the right to see my child safe, but the duty to,, AND the legal tools to ensure it happens.

Even if your ex claims that this man doesnt live there, is only a friend yadda yadda yadda,,, the police call out for domestic violence clinches it that he IS there. THAT opens the door for you to admit into evidense all his prior records and gives you the legal standing to insist he be kept away from your child.

Who knows,, perhaps it will force her to re-evaulate her choices.

[craiger]

Sorry you went through it, hope your doing ok now.
p.s. the attorney never did call back on your suggestion, I will keep pushing .

Thanks Again, Craig

[wendl]

Keep calling your attorney he needs to do this quickly.

Your atty or you should be able to draw up a RO and then have the atty do an ex parte hearing.

I would insight you a little more but my dh still has hearings going on and his lovely ex and her friends stalk me here.

DO as PD says and read what you can here.

:)

**These are my opinions, they are not legal advice**

[Lawmoe]

What the heck, three times posting this is acharm right?

Unfortunately, custody battles can become ugly business. being prepared for the long battle that is divorce is important. . Having a game plan and theme is important. It is also imnportant to know how to speak the language that courts listen to. Below are some guidelines.

First, there are two types of custody, legal and physical.

Legal Custody

Legal Custody is the right to make decisions related to your minor children. Major decisions include

1 Education: Where do you children attend school? Should they attend special classes or tutoring?
2 Health care: What types of medical treatments should your child have? Who should be the doctor?
3 Religion: What church, mosque or temple should your child attend? What religious education should your child attend? Should your child be baptized? If so, in what religion?

There is a strong presumption under most state laws that legal custody should be shared by the parents. The only time that legal custody is not shared is when the parents are unable to communicate and do not have any reasonable methods for resolving disputes. Often when parents have conflicting beliefs regarding legal custody issues, the Court may decide the one conflicting issue while still awarding parents joint legal custody on other issues. For example, the Court may determine a conflict regarding religion but still award joint legal custody regarding non-conflicting issues.

It is important to remember that an award of joint legal custody is not a basis for a downward departure in child support.

Physical Custody

Physical Custody or placement or primary residence is what most people think of when the term custody is mentioned. It may be referred to in different terms in different states.

Physical custody refers to the primary physical residence of the child. The presumption under Minnesota Law is that when parents disagree on who should have primary physical custody, it should be awarded to one parent. There are some counties that take this presumption to an extreme. For example, Anoka county will not award joint physical custody even if the parties agree ti such an arrangement unless a custody evaluation is performed that recommends joint physical custody. This is an aberration and not followed by most counties.

In any custody dispute, the Court must decide what is in the "best interests of the children."

To determine what is in a child's best interests, a Court is required to look at factors set out in your state's divorce laws. Know those factors and outline your arguments accordingly. They often include:

1 The wishes of the child's parent or parents as to custody;

2 the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference most Courts do not consider the child to be of suitable age until the age of twelve or more;

3 the child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);

4 the intimacy of the relationship between each parent and the child;

5 the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;

6 the child's adjustment to home, school, and community;

7 the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

8 the permanence, as a family unit, of the existing or proposed custodial home;

9 the mental and physical health of all individuals involved;

10 the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

11 the child's cultural background;

12 the effect on the child of the actions of an abuser that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

13 The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
The court may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of thirteen and may not be used as a presumption in determining the best interests of the child. Any custody order by the Court must make detailed findings on each of the factors with an explanation how the factors led to its determination regarding custody and how it serves the best interests of the child.

Joint Physical Custody.

In order for a court to award joint custody, it must find that the parents have the ability to cooperate in rearing the children and have methods and a willingness to use methods for dispute resolution. In making such a determination, the Court must consider the following factors:

(a) the ability of parents to cooperate in the rearing of their children;
(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
(d) whether domestic abuse has occurred.


Allegations of Abuse.

Allegations of sexual or physical abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under Minnesota law that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak. Do not fall into this trap.

1 Avoid all conflict if possible!
2 Assume any thing you say or do is being recorded!
3 Maintain your best behavior!

This can be very difficult in the emotional context of divorce. However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.

What is Domestic Abuse?

Domestic abuse is defined generally as abuse committed against a family or household member by a family or household member and include:

(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats, or interference with an emergency call

Family or household members" include spouses and former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, persons who have a child in common regardless of whether they have been married or have lived together at any time; a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.


False Allegations of Abuse.

False allegations of sexual or physical abuse are also taken very seriously. Courts consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges in many states.

Preference of Children.

Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Under most state stautes, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child's preference before the age of twelve. Even at that age and older, the child's preference is only one factor out of many for determining custody.

Children as Witnesses.

Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases. Where cases do require the testimony of children, Courts will often require that a Guardian Ad Litem speak with them and represent their interests and statements to the Court. The Court may also speak to the children directly in a less intimidating setting such as the Judge's chambers.

Parties in a divorce proceeding may also craft their own parenting plans.

A parenting plan is simply a schedule which sets out the care giving responsibilities of each parent. Parenting plans should include:

1 a schedule of the time each parent spends with the child;
2 a designation of decision-making responsibilities regarding the child; and
3 a method of dispute resolution.


A parenting plan may also include other issues and matters the parents agree to regarding the child.

Parents that voluntarily agree to parenting plans may substitute other terms for physical and legal custody, including designations of joint or sole custody, provided that the terms used in the substitution are defined in the parenting plan. Moreover, a Order from the Court that includes a parenting plan which uses alternate terms to designate decision-making responsibilities or allocation of residential time between the parents must designate whether the parents have joint legal custody or joint physical custody or which parent has sole legal custody or sole physical custody, or both.


EVALUATORS

Where parents are unable to agree on parenting plans or custody issues, the Court will require a custody evaluation performed. This may be carried out by county social workers, psychologists or a Guardian Ad Litem. A Guardian Ad Litem is a person that is appointed by the Court to represent the interests of a person who is unable to do so for themselves. In the context of a custody case, the Guardian Ad Litem acts as a spokesperson regarding what the Guardian believes is in the child's best interests.

REPORTS

The person performing the evaluation will investigate the facts and generate a report that is provided to the Court. The report will usually include a summary of the investigation, an analysis of the custody factors set out in your state statutes and a conclusion regarding what is in the child(ren)'s best interests.

THE USE OF CUSTODY EVALUATIONS

The Court is not required to adopt the recommendations of a custody evaluator. However, in most custody cases, the parties have very polar positions regarding the facts. This often boils down to a "He Said - She Said" Situation at trial. Where the evaluation was performed by a person appointed by the Court, the evaluator is considered a neutral party and their recommendation may hold considerable weight with a Judge who must weigh conflicting testimony. To combat an unfavorable custody report, your attorney will try to point out the deficiencies of the investigation performed and facts that may have been overlooked by the evaluator. It is may also be necessary to hire your own expert to conduct a separate custody evaluation and present a different recommendation at trial.

POWERS OF THE EVALUATOR

The custody evaluator often has broad power and may require the parties to provide releases of information for counseling, medical or psychological records. The evaluator may also require psychological testing, chemical dependency evaluations or random urinalysis tests as part of the investigation process. This is particularly true when one parent raises concerns about the other parent=s chemical dependency or emotional stability.


CUSTODY STUDY ELEMENTS

Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :

Initial Interview with Evaluator.
At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker. BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.

Home Visit(s).
The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:

* Whether you actively play with and interact with your child;
* Whether you set appropriate boundaries for the child and whether the child obeys those boundaries;
* Discipline used;
* Child's reaction to the parent;
* Condition of the home environment.

Collateral Contacts.
The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.

Alcohol Assessments.
Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.

Psychological Evaluations.
Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.

INTERACTING WITH THE EVALUATOR
How you interact with the custody evaluator may be a critical element of your custody case.

1 Custody evaluators will oftentimes make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator's report will favor your position.
2 Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.
3 Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them "I see your point, but..." or agree first "I agree, but would you consider this to be important...."
4 The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the best interests of the child(ren). To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent. For example, the statement, "my wife drinks too much, is incomplete. It does not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement would be:

"My wife drinks too much. Because of that, he is rarely home and when he is, he is:.... abusive....spends little quality time with the children....is unable to help the kids with their homework...."

5 Provide the evaluator with the documents supporting your statements.
6 Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party's weak points. (It is usually better not to include relatives as part of your contacts since they may have a bias).
7 ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

PRESENTING YOUR CASE TO THE EVALUATOR
Remember, there are six magic words in custody evaluations.- Best Interests of the Minor Child. Custody evaluators listen for issues that relate to that phrase. You should relate how each of your proposals is beneficial to your child(ren). Wherever possible use phrases that mean best interest of the minor child without using those exact words. Using the exact words sounds too legalistic and prepared. Your statements should sound more natural.

There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility. The issues you should be prepared to raise are the following:

Primary Caretaker.

Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child=s life? What responsibilities did each parent have?
The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:

1 Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider's or teacher's names. The more information you are able to provide in that regard the more credible you will appear as an active parent.

2 Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.

3 Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child's schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the child(ren)'s schooling.

Be able to relate who the child(ren)'s friends are and what activities they enjoy in detail.

Stability.
The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.

To effectively present the areas where you have provided or are able to provide more stability, you may wish to create a detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent=s residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent=s employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.

Endangerment or Neglect.
If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:
1 Medical reports documenting injuries from abuse or lack of supervision;
2 Medical reports documenting complications because of neglect - health issues such as asthma from cigarettes smoke or lice from lack of hygiene;

3 Police reports relating to police calls to the other parent=s home;
4 Child protection reports;
5 Counseling records for the child or the parent;
6 Criminal or driving record of the other parent;
7 Criminal or driving record of individuals that have significant contact with the minor child(ren);
8 School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent=s care or after returning from the other parent=s care.


REMEMBER: Endangerment only exists if you tie the other parent's conduct into the child's care and the child's best interests. For example, if you allege the other parent has an alcohol problem. It
only will be effective if you can relate specific incidents where the alcohol use or abuse affected the minor child(ren). (eg. The parent passed out on the couch while the child played unsupervised. The parent drove the child in the car while intoxicated. The parent was out partying consistently while the child was be cared for by a stranger.)

Parenting Plans as Part of the Evaluation.
The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response should not sound mechanical. The answers should include:

Where will the child live? Why is that in the child's best nterests?
What school will the child attend? Why is that in the child=s best interests?
What will your work schedule be?
Will that allow you sufficient time to supervise the child?
What schedule do you propose for the other parents?
How does that schedule provide stability?
Why is that schedule in the child=s best interests?
(Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent=s contact, it may be used against you.)

PARENTING NOTEBOOKS.
In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your children. What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party's parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

COURT ORDERED SCHEDULES.
If the parties are unable to reach a visitation agreement, the Court will craft its own schedule. Oftentimes, Court ordered schedules do not make either party happy which results in later disputes. Most people understand that Courts often rubber stamp parenting schedules in a one size fits all kind of manner. We all have family or friends who have a schedule which includes:

1. Weekly Schedule: Alternating weekends from Friday - Sunday and one evening per week.
2. Holiday Schedule: The parties shall alternate legal holidays including Christmas Eve Day, Christmas Day, New Year=s Day, Easter Weekend, Memorial day Weekend (Fri-Mon), Independence Day, Labor day weekend (Fri - Mon), and Thanksgiving day. The child shall be with the mother on mother=s day and the father on father=s day.
3. Extended Schedule: Each parent shall have two (sometimes up to four) consecutive or non-consecutive weeks with the child each summer upon 30 days advance written notice to the other party.

By imposing such a schedule in so many cases, the Courts often fail to consider individual work schedules and circumstances. As a result, it is usually in the best interests of the children and the parents if agreement on a schedule is reached.

For Minnesota Answers visit http://www.divorceprofessionals.com