Another question - URGENT

[Romersgirl]

On a separate case.  

My friend has joint custody of his son with ex.  the court order states the father (my friend) has visitation "every tues and thurs from 6:00 pm to 9:00 am the next morning".

Last night bc he's moved in with someone else (that he's been with for 3 years) she refused to let the child go.  Well she let him go, then went to his moms before my friend got off work and picked him up when she heard that he and his girlfriend were living together now.

1.  What can we do, can we file contempt of a court order since she refused to let him go when my friend called her later?

2.  What would be the best course of action for us since she's refusing tomorrows visitation as well since he's living with his girlfriend?

[socrateaser]

>1.  What can we do, can we file contempt of a court order
>since she refused to let him go when my friend called her
>later?

 Proving contempt is very hard to do. I'll bet you cannot prove your case. See my post to ccmidaho. Get prepared for future incidents, and be ready to obtain proof while the contempt is happening.

>2.  What would be the best course of action for us since she's
>refusing tomorrows visitation as well since he's living with
>his girlfriend?

Serve notice on the other parent of your intent to record all future transfers of the child, and then do it. Without clear and convincing evidence of contempt, you have no case in the courtroom.

[DecentDad]

Are they sufficient for documenting an incident where a parent won't release a child?

Not that the police will do anything to support court orders (per my experience), but it would show a pretty clear record of the incident, no?

DD

[socrateaser]

>Are they sufficient for documenting an incident where a
>parent won't release a child?
>
>Not that the police will do anything to support court orders
>(per my experience), but it would show a pretty clear record
>of the incident, no?

Unless the report is a statement of what the officer personally witnessed, then it not relevant to proving that a contempt actually occured. Most law enforcement agencies will not send an officer out "in advance," so there is no means to witness the contempt. All the report accomplishes is to document the complainant's statement about what purportatedly occurred. This is not clear and convincing evidence of contempt, because it does not provide any third party account of the incident.

The only police report that will have any use in court is where an officer actually witnesses the defendant's act of contempt, so that the officer can be called to testify as to what he/she observed.

[DecentDad]

Sorry, I left that out.

Police reports that I have include officer's (or detective, to whom I was once referred) phone contact with mother, and the report outlines mother's stated refusal to release child to me.

Is that stronger evidence?

And would the officer have to be subpoenaed, rather than entering the report itself into evidence?

[socrateaser]

>Sorry, I left that out.
>
>Police reports that I have include officer's (or detective, to
>whom I was once referred) phone contact with mother, and the
>report outlines mother's stated refusal to release child to
>me.
>
>Is that stronger evidence?

Your question would be terrific on a bar exam.

A "statement by a party against their own interest" is an admission and is excepted from the hearsay rules. And, a police report recording a statement that a party admits to withholding the child would fall within the "business records" exception of the hearsay rule, and thus both "hearsays" would be excepted, and the statement would be admissible.

However, a contempt hearing in California is a quasi-criminal action, and the U.S. Supreme Court has ruled that a defendant is entitled to cross examine every adverse witness. So, the police officer would have to be available at the contempt hearing, or the report would be excluded.

The report would be admissible under the hearsay exception if this were merely a civil hearing to clarify or modify parenting schedules, because that's not a criminal action.

>
>And would the officer have to be subpoenaed, rather than
>entering the report itself into evidence?

See above.

[Romersgirl]

I was wrong on what I "thought" (or under the impression of) the court order said.  The exact words were
"every other weekend and 2 days during the week".

Clearly this is not contempt of court as the mother has the right to decide whatever 2 days she chooses since the order is extremely vague.  The mother and my friend have a verbal agreement for Tues and Thurs night.  We went to the court house yesterday and filed a motion to amend a current order, to get the court order to be more specific and not so much on the mothers mercey.  

We also sent the "Notice of Intent to Excersise Visitation" Letter certified to her today.  And the "Denial of Visitation Letter" certified to her today, both of which I got off this site.

1.  Do you suggest anything else?
2.  Have I done the right things?
3.  What if she goes a week without letting him see the child, what should be our next move?
4.  Any other advice?

Again Soc, Thanks, so many of us on this board would be completely lost without you!

[socrateaser]

>1.  Do you suggest anything else?

No.

>2.  Have I done the right things?

Seems ok to me.

>3.  What if she goes a week without letting him see the child,
>what should be our next move?

You need hard objective evidence of contempt. I've already explained how to get it. When you have 5 or more clear and convincing incidents, file a motion for contempt. Also, after each violation, inform the other parent in writing of your dismay over not being permitted to see your child. Do not threaten, do not tell her the law, just express hurt feelings and ask her to let you have the time with the child that the court has ordered.

The objective is to provide a reason for the court to find that the mother is acting out of vindictiveness against you. If you prove that, you're golden.

>4.  Any other advice?

Only what I've already advised, previously.