Alleged physical abuse and visitation

[iliveoutloud4me]

Dear Socrateaser:
This is going to be long I'm afraid, and I'm sorry, but I've gotten advice from you in the past and I don't know where else to turn.
My husband's ex-wife has managed to severely alienate his oldest of three sons. He does not want and never has wanted to visit in two years. This kid is a total pain in the neck. A year ago, he had his mom's attorney write up an affadavit for him about visiting and was all set to testify about it but the Judge said "no."
     
Because he has been ticked off since the Judge wouldn't give him the time of day, and because his mother has alienated him (it's so classic it's scary), he has behaved awfully every visit since, baiting his dad (my husband) every chance he got. The tension is unbearable.

Last summer, he was determined to ride in the front seat on their return trip home and my husband said "no," because all he does is sleep and my husband prefers someone who talks during the long trip. He refused to get out of the front seat, knowing my husband wouldn't touch him. So, my husband moved all the stuff to my car and prepared to leave ostensibly without him. This kid got out and stood behind the car, so his dad couldn't move. It was a classic mexican stand-off.

Then, this past Christmas, they got into a fight over something stupid (remember, the kid baits him). My husband proceeded to back him up chest to chest in an intimidating manner up into the wall. He never put his hands on him though. I heard the ruckus and came running, separating the two. My husband looked intimidating and the kid looked scared.

Now we get this motion, the sixth in two years, asking for visitation to cease, family counseling for the entire family (at my husbands cost) plus my husband to go through anger management and a parenting class. Then, when all that's done, supervised visitation.

Also, unfortunately this is true, my husband has bad-mouthed their mother and has called this oldest son a few names, not that bad, but...There is a grain of truth in much of what the mother alleges. I'm sure my husband did scare this kid. That said, they are only half truths and all kinds of omissions.

Plus, if she were really concerned about the possibility of abuse, why did she let them come down between July (the first incident) to December (the second incident)? And why have she let them come down three times since December if she is so scared? Also, the kid has an affadavit that reads like something out of Richard Gardner's worst nightmare.

1.) Is there a chance for us here?

2.) Would it be absolute insanity to go pro se on this?

3.) If going pro se is a possibility, can I be the person doing it? Instead of my husband I mean.

4.) If we shouldn't go pro se, can I write a brief to attach to whatever motion we file? Even if I am not a lawyer?

5.) If I can't write a brief, is a letter to the Judge possible?

6.) If the cards are stacked against us (this is in South Dakota), should my husband just give up so we at least don't have to pay for all the counseling?

Thanks in advance if you are able to help. Thanks in any event. You are a godsend, which I'm sure you know.

[socrateaser]

>1.) Is there a chance for us here?

It doesn sound promising.

>
>2.) Would it be absolute insanity to go pro se on this?

Not necessarily, but, I'd need to see the exact allegations in the motion.

>
>3.) If going pro se is a possibility, can I be the person
>doing it? Instead of my husband I mean.

Not unless you're an attorney or the judge is extremely fast and loose with the law.

>
>4.) If we shouldn't go pro se, can I write a brief to attach
>to whatever motion we file? Even if I am not a lawyer?

You can swear out an affidavit and say anything you wish, but it probably won't carry a lot of weight, because you're an interested witness.

>
>5.) If I can't write a brief, is a letter to the Judge
>possible?

Total waste of paper.

>
>6.) If the cards are stacked against us (this is in South
>Dakota), should my husband just give up so we at least don't
>have to pay for all the counseling?

My response to the motion would be to request all counselling costs apportioned according to the parties ability to pay and for visitation to not cease. However, based on your post, I believe that the counseling could be a net positive, if the son, father and mother are all involved.

You need some objective third party to try to get through the bull. Father-son adversarial contests are not necessarily the result of alienation -- sometimes it's just a battle of testosterone.

I wouldn't settle for just any counselor -- I would want someone who the court respects as unbiased.

Also, I suggest that "you" get out of the line of fire. The fact that your husband prefers you to his ex is undoubtedly giving the son ammunition to rebel, so take the ammo away and try to stay out of the relationship while the son is around.

I realize that this is something that is very difficult to accomplish, nevertheless, I think it's important to discover how father and son get alone when you're not there. If the situation improves, then look at all the money you save. Don't take it personally (I, know -- impossible).

[iliveoutloud4me]

Dear Socrateaser:

I think you may have the wrong impression of the situation, but that's ok. There is no enmity between his son and me. His son hates his father, but me he has always treated respectfully. I have (of course) a few more questions, ones I probably should have asked before. As far as my husband going pro se (as opposed to what I proposed--me), I'm afraid he risks alienating the judge. It's been two years and anytime he talks about his ex-wife, it's a diatribe that goes on until I stop listening. He simply is too angry at her for the things that 1) went wrong in the marriage and 2.) the alienating behavior on her part, that so far she has succeeded with.
     He's right to be angry--anyone in his situation would be. This woman defies description. And that's not just "second-wife" complaining--that's the god's honest truth. Now, I don't know if you remember from my previous posts (before this last motion on her part) that we wanted to modify alimony/child support because of her inheritance and professional degree and emancipation of the oldest child (the one who is swearing to the alleged abuse). We were going to go with that motion and now we are not sure if we should bring it up or not.

     This is not the first time we have gone to court. She has taken us, counting this time, to court 5 times in two less than two years to restrict visitiation, show cause, contempt, etc. One time was based on this same boy's original affadavit. The judge told them bring a real motion or be done with it. He also said he "would not empower the children." This gives me some hope.  To remind you, the reason we wanted to go pro se was my husband's lawyer acts as if he is out of his element in the courtroom. Every gain we have made so far has been because it was pretty clear my husband's ex was just being disputatious, not my husband's lawyer's legal skills.

   Another point I think, in our favor, is that, if the alleged abuses were true, why did she allow visitation to continue (there have been seven visits since one of the occurences she alleges and two since the other one. Isn't she being a little disingenuous? Also, her lawyer is, if possible, worse than my husband's. I know it doesn't sound like it, but I have a lot of respect for the legal profession. If my attorney were willing to travel that far (he's not) and he was licensed in SD, we would be going with him. I just think the lawyers in that small town are afraid of the judge.


1.) As far as the allegations of abuse are concerned, it's a he said/she said kind of thing. Would it be possible and/or wise for my husband to ask the court to allow him to take a polygraph if the other side stipulates to it's admittance?

2.) Is it really whacko for us to consider bringing a motion to  modify custody based on the alienation, especially since an evaluation, if ordered, would probably reveal the alienating situation?

3.) Am I right in thinking that now isn't a good time to bring up the alimony/child support mod?

4.)If the answer to #3 is yes, when would be a good time? She is a millionaire with a Ph.D whose income before she inherited was never figured into the child support formula.

Thanks again, in advance for your help!

[socrateaser]

>1.) As far as the allegations of abuse are concerned, it's a
>he said/she said kind of thing. Would it be possible and/or
>wise for my husband to ask the court to allow him to take a
>polygraph if the other side stipulates to it's admittance?

If you want to use a polygraph, you must offer to the court that you will take the exam, and suggest that the other party do similarly. Your request can be used to prove character and/or competency, but the test itself is inadmissible to prove truthfulness unless the other party agrees.

The reason for asking for the test in the first place is to cause the judge become skeptical of the other party's assertions, when they refuse to take the exam. Sometimes the jugde will start to press the other party with extremely adversarial questions once he/she suspects that the party is lying.

It is extremely rare that both parties will actually agree to the test and allow the report in, because, one of them is usually lying, and the examiner will know who that someone is.

>
>2.) Is it really whacko for us to consider bringing a motion
>to  modify custody based on the alienation, especially since
>an evaluation, if ordered, would probably reveal the
>alienating situation?

I think that you are far to conclusory in your beliefs. You may be correct re the alienation, but that doesn't mean that the eval will uncover it. Furthermore, judges sometimes side with the alienating parent because the child will suffer too much trauma if custody is reversed, and the damage is already done. So, alienation is not a good theory to proceed on. Abuse is better.

>
>3.) Am I right in thinking that now isn't a good time to bring
>up the alimony/child support mod?

I don't see why not. Bring up what needs resolution.

>
>4.)If the answer to #3 is yes, when would be a good time? She
>is a millionaire with a Ph.D whose income before she inherited
>was never figured into the child support formula.

Ph.D in what?

A general comment: even though there may be no outward hostility between you and the child, this doesn't mean that the child doesn't see you as the intruder. So, my suggestion for you to stay out of the contest stands. As for the father's right to be angry, well, I as frequently say, there is no right or wrong in a court -- there's only the law, and there's no legal theory that makes anger something that the court can act on.

Point is, if your husband is angry, then he needs to get over it, because that angery is rubbing off on the child. Don't fool yourself into believing that this a completely one-sided problem because it's not. It never is.

[iliveoutloud4me]

Dear Socrateaser:

     As usual, your advice is timely and to the point. Af far as the poygraph is concerned, the other party to it would be the alleged abusee--the 17 year kid.  The mom wasn't there for a spanking in 1999 (the time she alleges the abuse has gone on from). Also, I think the seventeen year old firmly believes (and would therefore pass a polygraph) that he was abused in 1999. As far as what happened last July and in December, he's probably less certain.
     The mother's  Ph.D is in cognitive psychology which brings up another point I forgot last night. I knew there was something! Between their visit in July, when one incident was suppose to have happened, they have been for visits 7 times. The other incident on which she bases her motion allegedly happened in December. They have visited twice since then.
    As I mentioned earlier, this is the sixth time in less than two years we have been in court--once on our motion to enforce visitation. Also, the custody, if we fought for it, would be of the still unalienated two younger boys, who are 15 and 13. Also, I could mail you the seventeen year old's affadavit. I think you would be chilled by it's language and tone.

!.) Since she is so concerned about this "abuse" and she has a doctoral degree in psychology, why hasn't she ever taken the alleged abusee for counseling and have brought this motion before now? Is that a point?

2.) If the above is a point, should we bring it up? The  judge in this case, since it is a small town, knows how often we have ended up in his courtroom and he's never been too happy about it--which has worked to our advantage before. Should we say nothing and let him surmise it for himself?

3.) Since the other party to the abuse was a 17 year old, isn't the judge less likely to agree even if the other party stipulates?

4.) Can we say in our motion--by way of reminder, which probably is unnecessary--that this will be the 7th time since Feb 2003. Doesn't repeated litigation say something to the judge?

4.) Would you like to see the boys affadavit? I know you think I have alienation on the brain, but I never knew it existed before I met this kid 2 years ago. Reading it is like reading a treatise on alienation.

Once again, many, many thanks.