Re: Teenage Boys - Out of State Visitation

[SFMedic]

Dear Soc,

Long time no chat.  As you may remember, I have two teenage boys
who reside with their Mother in WV and I live in MD.  Mother has refused to bring children to court ordered meeting place, which is in MD, since July 31, 2005.  MD of course has jurisdiction.

Since then, we have already been through a TPO case, which was dismissed (Nov 05), a Contempt petition, which was continued (Jan 06),
a custody evaluation (Apr 06), a pre-trial conference (Apr 06), which the Mother refused to agree to anything, and now we're set for an all day trial (June 06).

During the pre-trial, the Mother was asked by the Judge would there be a problem with my having visitation with them for the entire upcoming summer?  The Judge during

Her response, "it's not something she could agree to do in good conscious and then have to go back and tell the children how they'll be spending the summer with their father.  How she doesn't want to agree to something, just to find herself once again with being in contempt".

The Judge during the pre-trial had actually considered the idea of
the entire summer as a good middle of the road solution.

Mind you, the children have been pulling out all the stops, in terms of every dirty trick in the book.  The four times we've driven all the way up, just to spend 3 hrs with them at a restaurant, resulted with nothing more than disrespecting us.

Regarding their therapist, which they've been seeing since Dec 05, I asked how that's coming along.  They responded, "it's not doing anything for them, they don't like being told by the therapist how they should try and look at me in a different way to work something out".  They stated to me, the only reason they're doing it in the first place, is because it's court ordered, even though I've told them that's not the case.  I still haven't been contacted in any way.

Regarding the Custody Eval, the person interviewing them, bought everything they said "hook, line and sinker".  They never bothered speaking to anyone else outside of the Mother, Children and myself,
so that their claims could be verified or disproven.  They obviously
took the path of least resistance in this regard.

The Children have told the CE, how this is all they think about, and is the reason why their grades have been so bad this year.  My youngest even went so far to tell the Therapist and CE how he had an emotional melt down while at school.  Via e-mail I contacted the school counselor, who confirmed this never took place.  

My youngest is looking at having to attend summer school, due to his
failing grades in math class.  The first time this has ever happened
since he's been in school.

The Children claim and stated to the CE, which was reflected in their report, how they are concerned about their Mother being put in jail.  
They've been told numerous times how this is something that would
not be taking place.

Yet another "smoke" screen, during the times I've met them in WV,
they've talked about their friends coming over, going to the mall,
the school weight room, like nothings wrong and their doing just fine.

The CE will be the only "expert" present during trial.  The childrens
Therapist info I've just been told has been waived, regarding privlege
being decided, I'm still not sure if this person will be present, as they
are situated in WV.

1. Question:  I realize this is something usually frowned upon in most
cases, would it make sense to have the children placed on the witness stand?  So that they would have to explain themselves, and could be
questioned in the process.

2. Question:  Contempt motion has still been continued going into the
(Jun 06) trial date, will this figure into the verdict in anyway, such as
having to pay court cost - attorney fees if found in contempt?

3. Question:  Given that the Mother refused to come to some type of
agreement prior to trial, would this make a difference at all?

4. Question: Given that the CE did not bother to verify any of the
children's claims, thru other individuals, neighbors, relatives, does
this makes a difference at all?

5. Question: Given that the Therapist privlege has been waived, I take
it this is just procedure, so that the summary session notes can be
admitted as some form of evidence?

6. Question:  Given my overall circumstances, what would be your
"tea leaf" opinion of possible outcomes to expect?
 
7. Question:  Any other suggestions?


Thanks....

[socrateaser]

>1. Question:  I realize this is something usually frowned upon
>in most
>cases, would it make sense to have the children placed on the
>witness stand?  So that they would have to explain themselves,
>and could be
>questioned in the process.

I remember you and I remember that you stated that the recording of the judge commented after taking to the kids in chambers that they were pretty much completely alienated by the mom against you already and that the situation seemed hopeless.

So, based on that and what you're telling me here, I don't see what you have to lose, because you're probably gonna lose no matter what.

However, ultimately, what's gonna happen is that your kids will hate your guts, you will probably lose the custody battle, although the mother will probably be found to have intentionally alienated the kids and ordered to pay all your legal fees.

What I'm getting at here is that if your goal is to EVER have any chance of a relationship with the kids, then putting them on the stand and ripping them a new one is probably not gonna get you to that result.

>
>2. Question:  Contempt motion has still been continued going
>into the
>(Jun 06) trial date, will this figure into the verdict in
>anyway, such as
>having to pay court cost - attorney fees if found in
>contempt?

No. The contempt action is a different matter entirely, unless the court judges the contempt first so that you can use the judgment as evidence of mom's bad acts at the trial.
>
>3. Question:  Given that the Mother refused to come to some
>type of
>agreement prior to trial, would this make a difference at
>all?

See #1.


>
>4. Question: Given that the CE did not bother to verify any of
>the
>children's claims, thru other individuals, neighbors,
>relatives, does
>this makes a difference at all?

See #1.

>
>5. Question: Given that the Therapist privlege has been
>waived, I take
>it this is just procedure, so that the summary session notes
>can be
>admitted as some form of evidence?

Yes. The therapist's testimony is admissible. The reports are not, however, without the therapist on the stand for cross examination.

>
>6. Question:  Given my overall circumstances, what would be
>your
>"tea leaf" opinion of possible outcomes to expect?

See #1.

>
>7. Question:  Any other suggestions?

Unless the judge determines that the mother's actions have been so outrageous that the court's authority must be vindicated and therefore that custody will be reversed, then you will lose, as described in #1 above.

This is a perfect demonstration of why the present system of family law doesn't work. But, it's what we've got, so we have to deal with it until such time as the public wakes up and demands different. I don't actually expect this to ever occur, but predicting the future is a dangerous avocation and, as you're well aware...I don't read tea leaves.

[SFMedic]

Dear Soc,

I have a few follow-up questions

1. Question: Is it possible to challenge the results of the Custody Evaluation thru filing an exception brief / motion prior to my trial court date?  

2. Question:  Is it possible to request the current Custody Eval dismissed due to blatant omission of critical facts / and the abscence of any "checks and balances" or am I just stuck with what I have now and will have settle for just arguing these points during trial?

3. Question:  Any information that the Custody Evaluator has at this time, is it correct to assume that my attorney should have access to that same information, in terms of obtaining copies of those documents prior to trial?

4. Question:  If privilege has been waived regarding the mental health records for the children, by a court appointed attorney, shouldn't the attorney's for both parties have access to that information and not just the CE?

5. Question:  Knowing the Therapist is listed as a witness to testify, there shouldn't be an issue with my attorney having access to this information or am I wrong with assuming this?

6. Question:  Will my attorney just have to settle for an amended report from the CE regarding the findings and supplemental information from the Therapist?

I ask this question, because I'm being told by someone from the mental health clinic, they will only be releasing this information to the CE and no one else, which I thought was odd.  I was under the impression that if privilege is being waived, it would be waived straight across the board for all parties concerned.

As always thanks...

[socrateaser]

>Dear Soc,
>
>I have a few follow-up questions
>
>1. Question: Is it possible to challenge the results of the
>Custody Evaluation thru filing an exception brief / motion
>prior to my trial court date?  

Yes, you can submit a trial brief, but I don't see the point, since you're gonna get an opportunity to examine the evaluator at trial anyway.

>
>2. Question:  Is it possible to request the current Custody
>Eval dismissed due to blatant omission of critical facts / and
>the abscence of any "checks and balances" or am I just stuck
>with what I have now and will have settle for just arguing
>these points during trial?

So, what you're saying is that you don't like the evaluator's conclusions so you want to get rid of him. The only reasonable grounds for having the evaluator disqualified is proof of bias/interest or impropriety. If you can prove this up, then a motion to disqualify would be appropriate -- otherwise, you're shooting yourself in the foot, because the only supposedly objective expert will view you as an adversary at trial.

>
>3. Question:  Any information that the Custody Evaluator has
>at this time, is it correct to assume that my attorney should
>have access to that same information, in terms of obtaining
>copies of those documents prior to trial?

Never assume anything.

>
>4. Question:  If privilege has been waived regarding the
>mental health records for the children, by a court appointed
>attorney, shouldn't the attorney's for both parties have
>access to that information and not just the CE?

Yes, but there are questions of local law. Example: in CA, the evaluator's report can only be examined while under control of the court, but not copied in any way. Attempting to obtain a copy or remove the original from court control is a felony.

>
>5. Question:  Knowing the Therapist is listed as a witness to
>testify, there shouldn't be an issue with my attorney having
>access to this information or am I wrong with assuming this?

Issue of local law. See #4 above.

>
>6. Question:  Will my attorney just have to settle for an
>amended report from the CE regarding the findings and
>supplemental information from the Therapist?

Depends on the content of the waiver. No reason to believe that you can't subpoena the therapist to trial and question him/her directly, if you think that the evaluator is biased.

>
>I ask this question, because I'm being told by someone from
>the mental health clinic, they will only be releasing this
>information to the CE and no one else, which I thought was
>odd.  I was under the impression that if privilege is being
>waived, it would be waived straight across the board for all
>parties concerned.

[SFMedic]

Dear Soc,

I would appreciate it if you could set me straight regarding the following:

1. Question:  In order to be awarded any type of financial sanctions against the Mother, such as attorney / court cost, would a contempt motion have to be filed stating this or is this something that could be brought up during closing arguments?

I'm being told not to worry about filing another contempt motion, as this
will be something that will probably not be addressed by the court.

thanks...

[socrateaser]

>Dear Soc,
>
>I would appreciate it if you could set me straight regarding
>the following:
>
>1. Question:  In order to be awarded any type of financial
>sanctions against the Mother, such as attorney / court cost,
>would a contempt motion have to be filed stating this or is
>this something that could be brought up during closing
>arguments?

Attorney fees and court costs are payable in a family law action, based upon balancing the respective parties' need and ability to pay. This is a very loose standard, which gives the court enormous discretion, and barely any oversight as to whether to award attorney fees and to whom.

Attorney fees requests are generally brought on a separate brief to the court, and are handled without oral argument (no one wants to dirty their hands with such mundane issues like how much an attorney's services are reasonably worth -- for obvious reasons -- it's embarrassing for the court to have to admit that for most litigants, attorney fees are the most brutal part of the entire legal episode -- but, oh well -- due process of law is expensive as hell).

You have a weird case, as I recall, because the court has already stated in chambers that your kids are beyond salvaging from the alienation, so it's unlikely that the court will award you any custody, even though the other parent has frustrated your access to the children and ruined your relationship with them.

So, no, there is no need for a contempt order, because the amount usually awarded on contempt is less than what the attorney fees would be, unless a party is found to have seriously spoiled evidence in a manner that caused the other party to unnecessarily expend a large amount of money to compel production.

The only real advantage to a contempt is that you can have your opponent incarcerated as punishment. For some people this threat is all that's required to gain their cooperation. For others, however, it's just a waste of time, because they don't care. And, if your ex doesn't care about the threat, then the contempt will mean nothing.

[SFMedic]

Dear Soc,

CP: WV  NCP: MD   CASE HEARD IN: MD  Boys: 16 & 15 y/o

I wanted to share with you and the others who post to this site, how there was some resolution today provided by a retired judge.

I was scheduled to appear in court all day today, starting at 9 am to continue up until 4 pm.

Surprisingly the Judge first called the attorney to chambers for a few minutes, to inform both of them how he would be questioning the boys together in chambers.  This lasted for about 35 minutes.

Then the Judge briefly spoke with the attorneys again, to inform them of how he wanted to speak with both of the parents in chambers.  We spoke for about 45 minutes with the Judge, where he was trying to figure out blocks of time for my visitation to resume, much to the Mothers dismay and disapproval.  

The Judge called the attorneys back in again to confirm our agreed upon times for visitation.  The end result was visitation to resume for the entire month of July, to include Thanksgiving this year, the day after X-mas until school starts again and Easter Break next year.  So they will have the entire school year, except for these scheduled holiday breaks.

He also gave a very stern warning to the Mother and our Boys how he puts a lot of time into making his orders, and should either of them choose to disobey this order, they would not like what would happen next, as he's been assigned our case until such time they turn 18.

Such as him reviewing some form of punitive action taking place, to include revisiting issues of custody.  He also addressed how he doesn't believe there is any concern for violence to take place, but in the unlikely event they can call the court custody evaluator or protective services at anytime.  We never went thru an actual court hearing, other
then the reading of the court order being modified for the record.

More importantly, I look at this verdict as another chance at having our family back together again, along with participating in some family therapy, so we start off in the right direction and deal with various issues as they're bound to come up as a result of today's court results.
I can only hope and wish other parents can be as fortunate, to actually
have a judge who can cut thru all the drama and work out a deal that
keeps both parents in their childrens lives.

Take Care,

SFMedic

[socrateaser]

.

[MixedBag]

glad to read this and thanks for the update.