Trying to work things out.

[JML12345]

I am NCP.  I share legal custody of my two daughters.  

Currently my divorce only details my parenting time with my kids for Christmas eve.  Otherwise, I have liberal time with them.  For the last three years we've been on an every other weekend and every Wednesday night schedule.      

My ex has been increasingly difficult to deal with on holidays etc.   I retained my attorney in March of 2006.  I'm asking for what I'm told are very standard things.  Every other weekend, alternating holidays and vacations, and for her to do a portion of the driving (we live 40 miles apart).  I've been doing all of it since we split up.  Initially because she didn't have a car and then because she refused (we live 40 miles apart).

My ex ignored the first twp letters my attorney sent her and hung up on him when he called.  She finally agreed to mediation, which we were lucky to get for free.  After two sessions my ex canceled the 3rd.  

After several months she finally retained an attorney.  My attorney has sent her attorney several letters that go unanswered for several weeks until I hound my attorney to contact them.  I've asked for deadlines in the letters to try and move the process along.  They either aren't put in or are ignored.    

I've given up birthdays and Halloween with my kids (when they fall on my time) to get her to agree to a majority of the changes.  Just when I think we have it, she finds something else she wants to change.  

She's now saying she wants to end my weekend time at 5pm vs. the 7pm we've been doing for three years.  My attorney tells me to give in to avoid court.      

I can provide a copy of the proposal sent to my ex if needed.  I'm considering hiring another attorney.  I don't feel mine is aggressive enough.

I'm not sure if I've provided enough information and I'm sure you've heard these type of stories 1000's of times, but:

1.  Am I unreasonable to expect a quicker resolution by my attorney?  I'm willing to go to court if needed and have told him so.

2. Since our drop off time as been 7pm for years, do I have reason to think a judge would change it at the request of the NCP?  She said it's because oldest daughter's homework is not done, but that is untrue.

4.  If she uses the homework as an excuse, would she have to prove her reasoning?

3. If we do end up in court is it unreasonable for me to ask for reimbursement on some of my attorney fees?

4. If your answer to #3 is no, will it matter if she no longer has an attorney herself?  She told me she may stop using him as she can't afford him anymore.


Thank you for your time.

[Kitty C.]

....do NOT give up anything you already have (like the 7 pm. drop-off).  She has set a precedence by allowing it for the past 3 years, so she's stuck with it, unless she can prove to the court that those TWO hours are detrimental to your child......fat chance.

[socrateaser]

>1.  Am I unreasonable to expect a quicker resolution by my
>attorney?  I'm willing to go to court if needed and have told
>him so.

You need to have your attorney explain the legal reason why he/she thinks you should be trying to avoid court. I would simply move the court to clarify the meaning of "liberal" parenting time. This seems entirely reasonable to me.

If your attorney cannot give you an express answer, then your next question is: why did you take my case?

If there is ANY equivocation, my advice is to send a letter stating your objections and demanding that any money you have paid be placed in the attorney's trust account until you and the attorney can resolve the dispute. Then if the attorney does nothing within 30 days, I would send a 2nd letter stating that has he/she hasn't responded meaningfully, that you will have no choice but to report him/her to the state disciplinary agency (state bar, bar examiners, whatever).

Don't tie the attorney's cooperation to your not reporting to the bar in the same letter, or you could be accused of trying to extort money. An ethics report is the last choice, because it will not likely get you your money back, even if the attorney is suspended or otherwise sanctioned as a consequence.

>2. Since our drop off time as been 7pm for years, do I have
>reason to think a judge would change it at the request of the
>NCP?  She said it's because oldest daughter's homework is not
>done, but that is untrue.

I don't know. The object is for the judge to solidify the parenting time, so that there's no more dispute. This is a reasonable request. You may not get what you want, but at least you will know what you have -- whereas you are currently always at the other parent's mercy.
>
>4.  If she uses the homework as an excuse, would she have to
>prove her reasoning?

You could argue that she's provided no evidence that this is the actual reason for her failure to permit you to parent, other than her own statement. I don't know how much weight the court would give to this argument -- but it's not unreasonable to suggest that a child has more homework as he/she gets older.

>
>3. If we do end up in court is it unreasonable for me to ask
>for reimbursement on some of my attorney fees?

No, but it's totally up to the judge. Never count on attorney fees, unless you know you can prove contempt by the other party. And, in this case, you can't, so it's a crap shoot.

>
>4. If your answer to #3 is no, will it matter if she no longer
>has an attorney herself?  She told me she may stop using him
>as she can't afford him anymore.

If you have an attorney and she doesn't, then you have a huge edge, but not necessarily on the attorney fee issue, which is supposed to be based on the parties respective need and ability to pay.

In reality, judges usually make an impulse decision on attorney fees, unless some obvious bad act of a party occurs during litigation which costs the other party legal fees to respond to.

[backwardsbike]

This is just my humble opinion,  and is based on nothng but my own expereince.  I think if homework is an issue why not just help your daughter with her homework?  Ask the other parent ot provide books, backpack or whatever else your child needs to complete her assignments.  It is parenting time after, all.  Helping with homework is just part of parenting a child.

[JML12345]

I do help her with her homework.  NCP is just using that as an excuse to shorten my time with my kids.

[JML12345]

Thanks for the help.  I had a conversation with my attorney last night and he said he'd call me when he has the court date.  

A follow up question on the attorney fees.  I have no expectation of my ex being able to pay if I am awarded anything.

1. Am I to interpret your response (quoted below), that a judge usually only awards attorney fees if the 'offending' party can pay?  Even if everyone involved (including her attorney) admitted she was a pain in the rear?  

I don't care if I get the money from her if awarded but it would be nice for the court to aknowledge that she's been uncooperative.  Probably wishful thinking...

"If you have an attorney and she doesn't, then you have a huge edge, but not necessarily on the attorney fee issue, which is supposed to be based on the parties respective need and ability to pay."

Thanks again.

Happy Thanksgiving.

[socrateaser]

>1. Am I to interpret your response (quoted below), that a
>judge usually only awards attorney fees if the 'offending'
>party can pay?  Even if everyone involved (including her
>attorney) admitted she was a pain in the rear?  

Equitable attorney fees are awarded in fairness. However, if a party has acted unfarily towards another in the matter at issue before the court, then the court will deny that party attorney fees regardless of their need.

Similarly, if a party has zero ability to pay, then it really doesn't matter what the other party's need is, so there is no point to ordering attorney fees.

Usually, each party has some ability to pay, even if over time, so the court always has options.