distrubing news

[gollymolly]

this is a very unorthadox judge. my attorney says we could not 'drag'/force him to abide by appellate/new law if we tried.

wade v. hirschman (fla 2005)  removes the required 'proof of detriment to the child in order to show a substantial and material change of circumstances'

johnson v. ziegler (fla 2006)  this case applied the wade 'no detriment' standard in a non-joint rotating custody case.

coldwell v. coldwell (mich. 1998)  and napier v. napier (ark. 2006)
these cases stand for the proposition that it is within the court's discretion to modify custody of a child when the child's primary residential parent refuses to acknowledge the child's health condition.

thomas v. harris (la. 1st dca 1994) acknowledges in footnote 2 that smoking could form the basis for finding detriment in a modification of custody action.


he thinks that the judge feels that the other parent should be warned first....... although, my attorney feels that the warning of three physicians and dcfs should have compelled the other parent to act appropriately in light of our daughter's asthmatic and allergic conditions. it shouldn't take a judge's warning to get the other parent to do what is best for the child(ren) and their physical health.

in our meeting today, he clarified in saying pretty much what you are saying... that no attorney in their right mind would attempt to disqualify him. and that he personally knows that this judge is vendictive and would retaliate (he is the chair of family law in this district)

but, he has a plan.

he wishes to 'outsource' the 'dirty work' to an out of district attorney... and has one in mind. and when we have a new judge, he will return to our case.

another thing that my attorney found particularly strange about the hearing... it was held for my amended supplemental counter-petition to modify and for summary judgment of the other parent's modification to remove visitation.

first, the summary judgment wasn't even discussed, except that the judge asked oc why his modification was filed based on items not even in our civil agreement (which acknowledges there is no legal foundation for the other parent's petition for modification)

it wasn't discussed what would happen with that motion.

first the judge said he would allow our amendment, then he went off on a 20 minute tangent about the evaluation and mediation.

then oc asked if he would wait to approve the amendment after mediation and the evaluation report is in... and the judge agreed.

my attorney pointed out that the original petition looked like 'someone on crack' wrote it (since it was drawn up by my previous attorney)  
it was terrible.

my attorney explained to the judge that it is imperative to our case that this amended petition be approved so that the evaluator may also have it as well, before her recomendation is released.

but, he will not approve it until after mediation and the report is complete.

1. is it just plain weird that my attorney wants to outsource the recusal?

2. if we do get a new judge, could we revisit the summary judgment and amended counter-petition issues with the new judge, hoping to get the new petition entered right away?

3. do you think i could find case law to support my argument that in our 50/50 rotating custody situation that 'primary residential parent' status holds no meaning.... to help level the playing field (lower my burden)?

4. also case law that supports that since both parents have filed a modification of the final judgment (technically you could say the other parent filed to modify visitation), the substantial change in circumstances burden is waived and we should be granted a new trial?

basically, we have a 50/50 rotating physical custody, shared-PR, with the other parent designated 'primary' for address/school purposes.

however i have an exorbant amount of proof that i have been the managing conservator since the final judgment was entered in may 2002, including but not limited to 95% of dr's appts., all dental appts., school volunteerism, and much more. i also have many witnesses that can account for the other parent's lack of involvement in our children's lives.

5. the general assumption is that a change in 'primary' would mean significant upheaval to the children....whereas, in our case, i feel it has no meaning, so should modification of that title shouldn't bare the same burden???? (i don't know if i even followed my own thought on that one)

[socrateaser]

>1. is it just plain weird that my attorney wants to outsource
>the recusal?

No, I personally know of a judge who has issues with certain attorneys and if you're not on his good side, then you can't appear before him, because you'll lose -- period. So, it's not that weird -- unfortunately.

>2. if we do get a new judge, could we revisit the summary
>judgment and amended counter-petition issues with the new
>judge, hoping to get the new petition entered right away?

If it's not been ruled on, then yes, otherwise no.

>3. do you think i could find case law to support my argument
>that in our 50/50 rotating custody situation that 'primary
>residential parent' status holds no meaning.... to help level
>the playing field (lower my burden)?

The current judge is simply not interested, so it doesn't matter what case law you present. He's basically saying, "Put on whatever case you want, and you'll lose, because I've already made up my mind." Thus, your only hope with the existing judge is to put your case into the record as completely as possible, and then file an immediate appeal for harmful error and abuse of discretion after you lose.

A very expensive proposition -- perhaps not worth the price. Could be cheaper to fold up the tent and go home now. Or, here's a novel concept. The other parent is in TX, right. Suppose, you were to obtain a new residence address in a different state. Then TX would have jurisdiction after 6 months and you could get a new judge there.

Just musing. I know that this would be an equally expensive strategy, but it would get you a new judge for certain.

>
>4. also case law that supports that since both parents have
>filed a modification of the final judgment (technically you
>could say the other parent filed to modify visitation), the
>substantial change in circumstances burden is waived and we
>should be granted a new trial?

Same answer as above.

>5. the general assumption is that a change in 'primary' would
>mean significant upheaval to the children....whereas, in our
>case, i feel it has no meaning, so should modification of that
>title shouldn't bare the same burden???? (i don't know if i
>even followed my own thought on that one)

Your arguments are all sound, but you're gonna lose anyway, because the judge has said so. Don't swim against the surf unless you want to drown. You need to find a way around the judge.

[gollymolly]

i guess i am posing my questions for possible arguments with a new judge. my attorney has a plan to disqualify this judge and is certain that it will work because he says that in FL we are given one 'free' disqualification of the judge. a second time would be questioned.... we would have evidence.

in fact there is a new law that states that if the judge sits on the recusal motion for 30 days the motion is automatically granted. my attorney isn't certain, but suspects that this judge may not know of this because of his dislike for new law.

i don't think it is a good idea for me to reveal the details here, but if you would like to know the details of the plan i would happily email it to you.

however, initially i believe my attorney's original goal was to do as you say and to be very precise in our discovery at this time to be prepared for appeal (that is since this judge does not recognize medical issues).

so what do you think about my questions on case law and my arguments for the new judge?

[socrateaser]

>so what do you think about my questions on case law and my
>arguments for the new judge?

Well, you seem thorough. I havent' read all of the cited cases, so I can't really give you an analysis more intelligent than to go with your attorney's plan, because he seems to believe he has the appropriate strategy.

[justme73]

>
>All I can suggest is that you tell the attorney if he isn't
>willing to give you the representation that you deserve, that
>you will put his entire bill in dispute and file a complaint
>with the state bar. That will mean that your attorney will
>push back and probably try to walk away from the case, and the
>judge will almost certainly let him walk. Then you'll have to
>hire someone else, only there is no one else. Which sets you
>up to lose.

sorry about the new handle.....

It turns out that my attorney has had his eye on the bench for some time now... possibly before he even took my case.

this explains his hesitation to recuse the judge. I called him on it, saying that i didn't feel I should be paying for a 'human relations' issue. he filed the recusal for me but it was strangely worded.

I am not sure how any other attorney would have written the complaint, but it seemed quite sweet.

only a few short weeks following the letter from the judge granting the request, my attorney announced his candidacy.... also that he would be unavailabe for most of the month of july, august.... possibly some in september.

he is difficult to reach and is focused on his campaign.

I retained this attorney following the unexpected demise of my previous attorney, that occurred in January.

since march he has billed me for over $10k.... of course most of which was getting aquainted with my case.

it appears that not only am i without an attorney, again, but that i will be spending more money getting another attorney aquainted with my case.

he says that if he wins the election that he would not begin until january. in the mean time i do not feel that he can effectively represent me, while having this campaign on his mind and then possibly the judicial position.

so to the question....
1. though he did some great work on my case, does it seem necessary for me to seek new counsel (not good to change horses again).

2. if so, would it be appropriate for me to dispute a portion of his bill?... it is fully refundable if not used.

3. he does have a sr. partner. would it be better for me to try to get on her calendar? my attorney stated that it would work if he were elected, because it would cut down on my costs of taking on a new attorney.

4. is it appropriate for me to ask to be transferred to his partner?

this is all very discouraging!
thank you for your help.

[justme73]

>
>All I can suggest is that you tell the attorney if he isn't
>willing to give you the representation that you deserve, that
>you will put his entire bill in dispute and file a complaint
>with the state bar. That will mean that your attorney will
>push back and probably try to walk away from the case, and the
>judge will almost certainly let him walk. Then you'll have to
>hire someone else, only there is no one else. Which sets you
>up to lose.

sorry about the new handle.....

It turns out that my attorney has had his eye on the bench for some time now... possibly before he even took my case.

this explains his hesitation to recuse the judge. I called him on it, saying that i didn't feel I should be paying for a 'human relations' issue. he filed the recusal for me but it was strangely worded.

I am not sure how any other attorney would have written the complaint, but it seemed quite sweet.

only a few short weeks following the letter from the judge granting the request, my attorney announced his candidacy.... also that he would be unavailabe for most of the month of july, august.... possibly some in september.

he is difficult to reach and is focused on his campaign.

I retained this attorney following the unexpected demise of my previous attorney, that occurred in January.

since march he has billed me for over $10k.... of course most of which was getting aquainted with my case.

it appears that not only am i without an attorney, again, but that i will be spending more money getting another attorney aquainted with my case.

he says that if he wins the election that he would not begin until january. in the mean time i do not feel that he can effectively represent me, while having this campaign on his mind and then possibly the judicial position.

so to the question....
1. though he did some great work on my case, does it seem necessary for me to seek new counsel (not good to change horses again).

2. if so, would it be appropriate for me to dispute a portion of his bill?... it is fully refundable if not used.

3. he does have a sr. partner. would it be better for me to try to get on her calendar? my attorney stated that it would work if he were elected, because it would cut down on my costs of taking on a new attorney.

4. is it appropriate for me to ask to be transferred to his partner?

this is all very discouraging!
thank you for your help.

[socrateaser]

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