Help me understand?

[wysiwyg]

Soc,

In here.

Court order reads:

The Court agrees with her (GAL) recommendation that a Case Manager/Domestic Arbitrator be assigned to this case to intervene in order to protect the child's interests and to prevent either party from alienating the child from the other parent, or in the event the parties cannot agree on the terms of their parenting time guidelines.
For those reasons, the Court hereby appoints, by a separate order, Dr. XX of as Case Manager/Domestic Arbitrator for this case. The Guardian Ad Litem recommended another modification to the Court's visitation order to eliminate more conflicts. The Court believes, however, it would be best for everybody involved, especially for the newly assigned Case Manager/Domestic Arbitrator, that the parties instead comply with the Indiana Parenting Time Guidelines.
Therefore, the Court amends its visitation order so that Mother shall have custody and Father shall have parenting time according to the Indiana Parenting Time Guidelines, effective October 1, 2003. In the event that there is a dispute, and in the event the parties cannot resolve the dispute according to section I(E) of the guidelines, the parties must employ the Case Manager/Arbitrator to mediate the dispute and to resolve the dispute as authorized by the Court's separate appointment
Order.

The Court believes that it is important for the parties to start over with the new guidelines, with no alterations, for the benefit of everybody who has been forced to become involved in the parties' personal matters.

Guidelines stsate:

I(E) When a disagreement occurs regarding parenting time and the requirements of these Guidelines, both parents shall make every effort to discuss options, including mediation, in an attempt to resolve the dispute before going to court.

So help me to understand:

We have a mediator that is court ordered to resolve parenting time issues, but we have to follow the Guidelines and parenting time with no alteration, is this correct?

What do we do when we have a conflit WITH parenting time?

The court order states that if the parties can not resolve a dispute regarding the I(E) portion of the guidelines that specifically talks about parenting time - then we must employ the mediator to resolve the issue of parenting time, is this correct?

So what order or passage do we follow?

The situation is this, I gave BM notice of Christmas schedule in June.  In September BM was court ordered to participate in mediation within 7 days, she refused, court hearing set for Jan on contempt of court.  In Oct (4.5 months after we gave her a schedule) she said she disputed our xmas, we told her in October that she could call mediator to schedule session, (FYI She had only to follow the courts direct order for mediationin Sept to resove this but refused) now 9 days before xmas break she skips mediation all together and goes straight to her attorney and now both attorney's have been in contact via email and phone all day, to both of us an enourmous cost!  The court even stated in its order: "The Court hopes, however, that in the long run it will be less expensive than paying their attorneys to write letters, to file pleadings, and to appear in court. The Court also hopes that this procedure will be less harmful to their child."  We have asked her 22 times since JUne to go to mediation to resolve this but she refused.

Would another contempt filing for failing to go to mediation and for failing to resolve this issue in mediation given the above appropriate or would we loose becasue of the other passages?

I do not know what to believe anymore.

[socrateaser]

>What do we do when we have a conflit WITH parenting time?

You are expressly court ordered to use mediation. That supersedes the parenting guidelines.

>Would another contempt filing for failing to go to mediation
>and for failing to resolve this issue in mediation given the
>above appropriate or would we loose becasue of the other
>passages?

Willful failure to use the court ordered mediation would be contempt, unless the parent who refused to use it, moved the court for a waiver, on grounds that the parties' dispute is too adversarial for mediation to produce any likelihood of settlement.

If I were the attorney I would be getting ready to go to court for an emergency order that the Sheriff enforce the parenting agreement, when the mother refuses to transfer the children for the father's holiday parenting time.

This is otherwise known as a writ of assistance, which re a temporary order is impossible to obtain in many jurisdictions, because of the historical precedence of the British routinely using such writs to have the Sheriff enforce all sorts of searches and seizures against the colonists, prior to the American Revolution.

However, if it's not expressly prohibited by statute, then a judge could order it. If it is, then you would simply have to move for contempt and then wait for the hearing to get your justice, which of course would be after the Holidays.

[wysiwyg]

Thank you, I appreciate your candor, it helps sometimes to have someone cut it down to size for me.  It is easy to become overwhelmed with it all.

Unfortunately I think that opposing party is going to try and hold staunch that the guidelines are specific to be this way and this way only, and we believe that the court ordered the mediator for these purposes, sort of a cushion to help the parties look at alternatives to parenting between not agreeing and one way only.

The funny thing is that the courts and mediator look at things in 2 diff perspectives and it becomes hard for me to seperate the 2, but if I hold true to what is in the child's best interest then I believe that mediation and surrounding the child wiht family is the best interest of the child.  IF the BM gets her way, the child will spend my portion of xmas breeak with myself at work, his sister in school, my wife at work and his other siblings not home for the holidays yet.  He will be home alone.  Sad but already noted in court orders that "that Mother is incapable of embracing or even acknowledging (child's) second family." & "the GAL finds Mother's resentment of (child's) second family to be sad and immature."


Happy holiday to you and your family, I hope I do not have t o bug you with more questions before then!  :)

[wysiwyg]

the

[socrateaser]

>1.  How can I make my attorney see that this is why there is a
>case manager and that this should NEVER have gone to the
>attorney's and cost us so much money and that we and the child
>are being alienated for the holiday becasue of this?

Your attorney is correct. The orders state that you are to follow the guidelines, and in the event of a dispute, you are to use the case manager to mediate. It's as simple as that.

>2. Can I file for contempt for BM failure to meet the terms of
>the multiple orders for mediation and get reimbursed for
>attorney's costs as this NEVER should ahve gone to the
>attorney's before mediation?

You can only file for contempt if the other parent fails to follow the guidelines, but before you file, you must attempt to mediate. Then, if the other parent refuses to mediate, then you file for contempt.

>3.  BM is threatening me with lawsuits and getting the now
>dismissed GAL inviolved etc, if I do not go precisely by teh
>Guidelines (but not incluing mediation) can this be considered
>harassment?

Probably not. The threat of a lawsuit is meaningless, and I don't know why you're letting it bother you. As for the rest of it, you are ordered to follow the guidelines. That should be pretty easy to do. But, if it doesn't work for you, then you'll have to go back to court to try to get them modified, and frankly, I don't think that you will be able to accomplish that, because you don't have any grounds.

>So Sorry to be lengthy but here we are a few hours before the
>start of the holiday and I am gonna spend my "break" working
>while my child is at home alone all becasue his mother would
>not pick up a phone and work with me on this.

I understand. Unfortunately, the reason why you are not married to the other parent is because that parent wouldn't work with you. So, what's happening now should come as no surprise.

[wysiwyg]

end

[socrateaser]

>Whatcha think?

I think that the attorneys, after reading the note from the other parent that you reference, talked to each other and concluded that they both needed to get some control over their respective clients, because if this ends up back in the courtroom, both attorneys may find themselves held in contempt and they will receive no fees from either parent, because the attorneys have arguably failed to cooperate towards an amicable resolution of this case, which is essentially what your judge has demanded with his orders.

In short, the judge, told the attorneys, in chambers, at some point in the proceedings, something to the effect of: "This sort of case annoys the hell out of me. I don't want to see these parent's back in this courtroom unless one of them has stabbed the other one. If I do, both of you counselors will have hell to pay. Do I make myself clear."

This is fairly typical stuff in custody matters, so don't think that attorneys aren't used to hearing such things. But, afterwards, the attorneys go on with their lives, just like the parents, and they hope that they won't need to get involved again.

Well, now the s!@$ has hit and the attorneys are trying to resolve the thing by scaring the other parent in the hope that the nonsense will stop before it gets back to the judge.

I can't predict an outcome. Just be aware that both attorneys likely have a vested interest in keeping the lid on your battle so that it doesn't reach the courtroom any time soon.

[MixedBag]

From my personal experience and in reading what you've written and Soc's responses....

Your order is quite clear on this subject in when you have your time.

You want to switch this year for various reasons and consider this an item where "you two disagree" and that this allows for mediation.

EX won't mediate and therefore you think you can go to court and get her held in contempt.

HOWEVER, NONE of this will happen with results from a court before Christmas.

From my personal experience, I couldn't use Thanksgiving one year and asked the EX for make-up time.  He denied and I could not go back to court and get him held in contempt.  There are/were no provisions for make-up time in the order if I couldn't take it when I was supposed to.

I think you're in a similar situation where you have been given court ordered time and want to switch it around.  EX doesn't agree.  Skip all the inappropriate e-mails from her....she simply doesn't agree.

Been divorced for 17 years now (from Divorce #1) and I know when I'm supposed to have a holiday and when I'm not.  Sometimes work and family members can't line up their time for when "we" as a family could be together.  That's the way it goes.  My EX had family in town from the west coast (he's on the east coast), and tried to make me feel guilty when I took my time with my son.  Well, you know -- it's spelled out years in advance and if it was so important, the adjustment would have been made.  

I understand why you want to switch, but I don't think you have a legal leg to stand on when it comes to court proceedings and decisions made by judges.  I personally don't think you really have a good reason to go back to court.

YES, I think that she maybe could have switched which half each of you has this year, BUT how do you know what she has planned??  Put the shoe on the other foot and I bet the answer would be the same from you.

Nope, I'm not an attorney, just a MixedBag....

Good luck and stop screaming and start planning for when you do have time with your child.