Denial of Visitation

[flewwellin]

Court order is in place NC has jurisdiction of case still, I live in NC, ex lives in PA with children.  VA is the meeting place.

Custody order states:
" Every Christmas vacation from 2 pm on December 26th unil 2 pm on the day before school reconvenes at the end of Christmas Vacation."
- and -
" The holiday custodial schedule set forth above shall correspond with the holiday schedule of the school that the minor children attend.  Provided, however, if the minor children attend different schools with different holiday schedules or one child is not yet enrolled in school, the elder child's school schedule shall prevail unless the parties otherwise agree."

I spoke with ex about changing holiday custodial times I would be allowed to have children for 2 days on thanksgiving which we normally wouldn't have had this year, in return the ex would be allowed to have children until 2pm on the 28th.  Thanksgving plans fell thru, ex stated that I would only be allowed a few hours at her parents house with the children.  

The verbal agreement being changed by ex, I told her to be at our meeting place on the 26th at 2pm because she changed the plans.  I didn't see my children then and now Christmas she says she isn't going to meet me on the 26th.  She says she will be there on the 28th at 2pm if I want to see my children.  

Questions:
1) Because of the verbal agreement have I ruined chances of receiving recourse by filing for contempt of court?

2) If I am not able to receive a police report by VA state police (where we meet) will this contempt of court be difficult to prove even if we have receipts from some place showing the time I was there and one showing the time I left?

[socrateaser]

>Questions:
>1) Because of the verbal agreement have I ruined chances of
>receiving recourse by filing for contempt of court?

Your original Thanksgiving agreement is irrelevant as to the Christmas schedule. The agreement that the court discusses in the order is an agreement to change the children's holiday schedule, by itself, based upon the various possibly inconsistent schedules of the children, re their return to school. So, the Chirstmas schedule is the same whether you and your ex had agreed to 6 months of parenting time in your favor, prior to the Christmas. The order controls, and whatever the order says is what both parents must do, unless they agree on something else, BECAUSE of the inconsistent times that school reconvenes, and for no other reason.

>
>2) If I am not able to receive a police report by VA state
>police (where we meet) will this contempt of court be
>difficult to prove even if we have receipts from some place
>showing the time I was there and one showing the time I left?

You should have receipts that you were there, and ideally, a third party witness who will testify to having seen you there at the time and place, and then having left without your kids.

The police report would be inadmissible hearsay, unless the police were there for a reasonable duration around the time transfer was to take place, and thet you left without your children because the other parent never arrived with the children. If the police simply take your story after the fact, that report is worthless, because it doesn't prove the truth of the matter asserted, i.e., that the children and other parent weren't there at the ordered time. It only proves that you told the police that the other parent wasn't there with the children.

You must prove contempt beyond all reasonable doubt, so you need a disinterested third party witness and you need the time stamped receipts, or you probably will not satisfy your burden of proof (in my opinion).

[flewwellin]

I have two time stamped receipts one when I got there and one when I left unfortunately I don't have the disinterested 3rd party witness (impossible to find someone willing to travel 4 hrs to be heard in court for someone they don't even know.)

1) because of the distance between the court house, New Hanover County, NC, and the meeting point, Chester, VA is it possible the judge would overlook my not having a third party witness?

[socrateaser]

>I have two time stamped receipts one when I got there and one
>when I left unfortunately I don't have the disinterested 3rd
>party witness (impossible to find someone willing to travel 4
>hrs to be heard in court for someone they don't even know.)
>
>1) because of the distance between the court house, New
>Hanover County, NC, and the meeting point, Chester, VA is it
>possible the judge would overlook my not having a third party
>witness?

The following assumes that a valid court order exists specifically instructing the other parent to transfer the children to you at date X and time Y, at point Z.

The legal burden is on you to prove your case beyond all reasonable doubt. So, if you go in to court and you testify that on date X, and time Y you were at point Z, and in support of your presence at that location you have stamped receipts from a business that you authenticate through some reliable source as being located where the receipts state that the business is located (e.g., like with a phone book listing or the like), then the receipts will go to substantiate the truth of the matter asserted, i.e., that you were at the pickup point at the time that the transfer was to take place.

If you then further testify, that you left without your children, then it would be good if you had some third party who would testify to your arrival back at your residence without your children, because, without that testimony, the defendant could choose to testify that she was there and that she transferred the kids, and there would go your beyond reasonable doubt case.

If the defendant chose not to testify, or if you had a third party testify to your return without the kids, then that would probably carry a verdict of guilty, and judgment of contempt.

The other parent can of course testify that there was some emergency, and if she does, and you can't impeach her testimony, then that might also blow your case out the door.

You are probably better off filing a motion to clarify and enforce the court's existing orders, on grounds that the mother's failure to transfer the children at the time and place required under the orders is not sufficiently clear, and that the children's best interests are served by a more precise order.

Then, you present the same case, only you now must only prove it by a preponderance of evidence (i.e., more likely than not), and if the court accepts your proof, which it almost certainly will, then you can ask that the court additionally award you some make up time for your lost opportunity due to the other parent's actions.

It's just really difficult to prove contempt without a police officer or disinterested third party witness, and I wouldn't like to see you waste your time and get nothing for your effort. You could also file both the contempt and the motion for clarification/enforcement, and then try the issue twice on the same facts. That's doable, because one is a criminal action while the other is civil, so there's no double jeopardy problem.

Then you take whatever you can get.