Contempt hearings as a long-term tactic vs short-term finding

[DecentDad]

Hi,

I'm posting as a new thread the discussion about police reports introduced as evidence, because I think your answer to my next question could be valuable for more folks than just me.

I've heard time and time again that contempt is very difficult to prove.

I have a contempt hearing coming up with 19 alleged counts of contempt cited.

One is for refusing to release child at an exchange.

The other 18 are refusal to provide phone access between me and child.  We have court orders for "unrestricted phone access betwen the child and the parent with whom she isn't currently placed."

She started blocking phone access the day she was served with my OSC to Modify Support, and the favorable ruling for me didn't seem to help the phone situation.

I think I have an okay shot at showing refusal to comply with orders on the exchange.

However, I can't imagine there's much of a way to PROVE that I attempted to make phone contact with child on those 18 days AND that I never got through.

I have audio recordings of the voicemails I left for biomom on her home and cell phones, and they registered the dial tone, digits dialed, biomom's voice announcement, and the message I left (including me saying date and time aloud in my message).

I also sent her an email after each day I couldn't get through to daughter, noting time I called and left messages, advising that she is violating orders, and requesting an explanation.

But, I obviously can't show with clear and convincing evidence that biomom didn't pick up the phone later in the day, didn't return my calls, etc.

I imagine that the judge may have a sense of what's going on with the blocked phone calls, but that he won't be able to find for contempt due to my failure to truly prove I never talked with daughter on each of those days due solely to mother's willful actions.

1.  In your experience, are the contempt hearings in themselves valuable for long-term strategies (i.e., future modification requests)-- regardless of outcome of the contempt hearings-- if a reasonable person can conclude what's going on despite that the threshhold for proving contempt wasn't met?

2.  Else, if the threshhold for proving contempt is so high, what recourse do we have to deal with uncooperative parents who seem well-advised to know what violations of orders would be difficult to prove?

Thanks for your thoughts.

DD

[socrateaser]

>1.  In your experience, are the contempt hearings in
>themselves valuable for long-term strategies (i.e., future
>modification requests)-- regardless of outcome of the contempt
>hearings-- if a reasonable person can conclude what's going on
>despite that the threshhold for proving contempt wasn't met?

Don't ever go to court in the hope of proving what you know you can't prove. The judge will get annoyed because you're wasting his time.

>
>2.  Else, if the threshhold for proving contempt is so high,
>what recourse do we have to deal with uncooperative parents
>who seem well-advised to know what violations of orders would
>be difficult to prove?

I'm not certain that you can't prove your case. If you demonstrate each of the separate instances of your calling and your recordings of the attempts, then the mother will either have to waive her right to remain silent and testify as to how she could have been unavailable 19 times in the past X weeks, or the court will be in a position to find that it is beyond all reasonable doubt that you could have called 19 tmes and she inadvertantly missed every call.

I think I'd find her guilty.

Now, go bring me the broom of the Wicked Witch of the West. The Great Oz has spoken!

[DecentDad]

Well, that's the most positive thing I've heard so far!

I haven't mentioned in my pleadings that I have the audio recordings because I didn't want to give her opportunity to build a defense.  The pleadings contain all my emails, as biomom already knew about them.

I was going to use the audio recordings to impeach a possible defense she could pose that I never called her and I'm making it all up.

As of now, the audio recordings are all just stacked up on each other on a micro-cassette; I just keep adding to it with each attempt to reach daughter.

1.  I have gotten through to daughter by phone 3 times in past 6 weeks.  No way that would diminish my case, would it?

2.  What's proper procedure for introducing the audio recordings at time of hearing?  Just mention its availability to the court, if desired?

3.  Is contempt proceeding much different than any other OSC?  Other OSC motions before this judge (that I've witnessed and been involved with) are pretty back-and-forth between parties... will this be more of a "criminal" type of hearing where I present my case and defense can choose to pose one or not?

Thanks,
DD

[socrateaser]

>1.  I have gotten through to daughter by phone 3 times in past
>6 weeks.  No way that would diminish my case, would it?

If your ex robbed a bank three weeks out of the past six, would the court let her off easy because she didn't rob the bank for three weeks?

>2.  What's proper procedure for introducing the audio
>recordings at time of hearing?  Just mention its availability
>to the court, if desired?

Well, the best thing would be to have them all transcibed by a certified court reporter, so that you can request that they be read into the record. However, you can also state the events of the first contempt, and then state that you have an audio recording of your attempt to call and ask that the tape be played for the court.

This presumes that the tape is audible enough for the court reporter to be able to understand what's on the tape. If it's not, then you're not gonna get the recording admitted. However, you can then say to the court, "In that case, your honor, I do not remember the exact contents of the phone call, therefore I request that I be permitted to refresh my recollection as to my attempt to call my child on this occasion, and then relate to the court the exact events as they took place." Then the court will allow you to play the tape for yourself, which naturally, the judge and everyone else will hear, and then you stop the tape and testify as to exactly what occured (picked up the phone, pushed the numbers 555-1212, and the phone rang until it went over to voicemail, etc.). Repeat this for each recording.

The audio won't get into the record, but your testimony will, and the court will be highly motivated to believe you, because the judge will have just heard exactly what you have testified to.

>
>3.  Is contempt proceeding much different than any other OSC?

The court will ask you if you're ready, it will ask the defendant how she pleads, advise her of her right to not testify, and if she pleads not guilty, the the judge will tell you to go ahead.

From there on, it's Perry Mason. You make your case, ordinarily by calling witnesses and introducing supporting evidence. As you are representing yourself, you can testify in a narrative form, rather than answering direct questions from an attorney. However, you can also create a list of direct questions for yourself and then use them to frame your testimony (ask yourself, and then answer). You're generally free to present in any format. When you're done, then your ex can cross examine you on the issues that you raise, and you can object to her questions if you know how.

When she's done cross examining you, then your ex will be given an opportunity to make her "case in chief" (her defense). This is where it get's dicey, because she can call any witness she wants, but if she starts to TESTIFY from her own personal knowledge, then you have the right to cross examine her, because she will have waived her constitutional privilege. You need to be listening for when that happens and notify the court, i.e., "Your Honor, Ms. X is testifying from her own personal knowledge. I request that the record reflect that she has waived her constitutional right to refuse interegation."

If this happens, your ex will get extremely nervous, because she won't know what she's done wrong, and you will have an edge, so have a set of questions ready for her.

Of course, if she shows up with an attorney, then my comments here won't be relevant, and it will be up to you to be prepared enough to avoid what will almost certainly be attempts by her attorney to throw you off track.

[DecentDad]

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