Going for contempt without a lawyer

[socrateaser]

>"The fact that you're asking what happens strongly suggests
>you will not be able to make your case."
>
>I know that I need to show proof of my visitation being
>denied. I guess what I was looking for was what all should I
>bring and what could my ex say or use against me. I guess I
>should have worded it differently. Sorry!
>
>- I have emails from my ex denying my visitation several
>times.

What proof do you have that the emails are authentic, and not simply manufactured by you?

>
>- I have phone records showing how often I have tried to
>exercise my phone visitations with my daughter.

This doesn't prove that the other parent refused you phone time. It just proves that you called.

>- I have sent my ex two certified letters of Intent to
>Exercise Visitation.

This proves you were annoyed, but it doesn't prove you were denied visitation.

>
>- I have a police report showing that she didn't show up at
>the first requested visitation. (the second one requested is
>this weekend so I don't know if she will show or not yet. I'm
>assuming not)

If the police officer didn't witness the other parent denying you visitation, then the police report is just your claim that you were denied. It doesn't prove that you were actually denied visitation.

>
>- I spoke with an attorney and was informed that I can record
>conversations with my ex without having to inform her. I have
>not yet been able to record her since she hasn't answered her
>phone but I am still trying.

So, you have no evidence under this category.

>1. Is there any other evidence I should have?

Well, on the surface, I'd say you don't have any evidence at all. I'm being unduly harsh, but the burden is on you to prove contempt BEYOND ALL REASONABLE DOUBT, and based on your facts here, I'd say you're nowhere near meeting that burden of proof.

[WhatToDo]

So basically there's nothing I can do? My ex doesn't ever answer her phone so me catching her on tape is pretty much impossible.

The phone records show how long each phone conversation is and each one says 1 minute. If a judge actually thinks that every time I call, the dialing and me talking to my daughter only takes 1 minute then I guess I'm outta luck.

1. Do you have anything I haven't tried?

[socrateaser]

>1. Do you have anything I haven't tried?

You need to understand that "beyond reasonable doubt," means that the judge must be convinced that on date and time X, you were entitled to visitation under the court order, and the CP willfully and with conscious disregard refused to permit you to exercise your rights.

This means that there must be no reasonable explanation that the other party could offer to refute your evidence.

If your current orders state specific dates and times when you are absolutely entitled to time with the child, and the other parent has no discretion to withhold that time, then I would hire a private investigator to appear with you at the other parent's home at the date and time specified, so that you have a disinterested witness to testify that you were unable to exercise visitation.

If you can get the local police to come out and witness this, great. Most of the time, you can't -- it depends on the policy of the particular law enforcement agency.

If not, the you need the PI or some other person, and you need to try exercise visitation 3 or 4 times consecutively, so that your witness can testify to all of your failed attempts.

If you show up and the other parent and child is present, then all you would need is a microcassette recorder in plain view so that you can record your request to see the child and the other parent's refusal.

But, if the other parent isn't there, then you need proof that she's not there, and that proof must be OBJECTIVE, i.e., not subject to reasonable dispute.

You could try to do this with a friend, but you'll be up against the problem that the judge may not believe your friend's testimony, because bias can be offered to impeach a witness' testimony.

Now, if your ex doesn't show up with an attorney, she probably won't know how to object to your evidence, which means it will likely be admitted, and if so, then you may win. But, if she shows with a lawyer, the stuff that you're currently offering will not generlaly meet the heavy burden required in a quasi-criminal action, such as a contempt hearing.

PS. If someone else has personal experience that refutes what I'm saying here, I'm open to them posting it.

[mistoffolees]

>>1. Do you have anything I haven't tried?
>
>You need to understand that "beyond reasonable doubt," means
>that the judge must be convinced that on date and time X, you
>were entitled to visitation under the court order, and the CP
>willfully and with conscious disregard refused to permit you
>to exercise your rights.
>
>This means that there must be no reasonable explanation that
>the other party could offer to refute your evidence.
>

Aside from Soc's good advice, be sure to put yourself in the other person's shoes to think up all the excuses they might come up with. Remember that in a 'your word against hers' situation, the whole thing gets messy. Soc can answer for sure, but it seems to me that you're the one who needs iron clad evidence, so if she muddies the water with wierd allegations, it probably helps her.

For example, what happens if the ex says you showed up drunk (I'm not saying it happened, just that someone could claim it did) and she didn't think it was safe to leave the kids with you. The way around this is to have the PI with you when you go there.

Think of all the other claims she might make (no matter how bizarre they might seem to you) and think about how you'd counter them. You can be sure that she'll be creative, so you need to think hard to address possible claims.

[notnew]

With denial of phone contact. My order states specifically that child is to be available 2 evenings per week (days are specified) between 7:00 PM and 9:00 PM for phone contact.

I kept a log of each attempt for a long time. It was detailed.

Date, time, result of attempt, note column (like if call was returned if message left).

I filed contempt on this and denial of visitation BEFORE the actual visitation had been denied because I had a letter from my ex telling me she wasn't going to allow the visitation as ordered.

She showed with a lawyer and was found to be in contempt for both counts. I was pro se.

Did this resolve the problem? Not entirely. But the phone contact did get more consistent and my visitation schedule hasn't been in question by her again. She was ordered to reimburse me my filing fees which were under $50 so it was really a non-punishment.

That was several years ago. Now my child is fully alienated from me and the court fails to see this. So, it may be worth the while to go through if the child is young enough, then again, it may not. That is the posters call.

I did not submit phone bill records, just my own log that I had been keeping since the onset of our separation.

I would think a 3 month period may be sufficient.

Soc, if a friend of his came along and video taped him arriving at the exchange place and showed that other parent was a no show, wouldn't that be sufficient proof without bearing the cost of a PI? Just an idea.



 

[socrateaser]

>Soc, if a friend of his came along and video taped him
>arriving at the exchange place and showed that other parent
>was a no show, wouldn't that be sufficient proof without
>bearing the cost of a PI? Just an idea.

Maybe -- maybe not. Suppose defendant's attorney starts questioning the friend about the relationship between friend and plaintiff, and friend admits that their relationship is very close, and that friend would do "almost anything to help."

You can well imagine a genuine response like this from a friend. Well, now defendant's attorney starts asking questions about the video, such as:

Q: "Suppose this video was made the day before visitation was to have occured. Would the video look any different than the one we've just watched?"

A: "I guess not."

Q: "So, except for your testimony, and you admit you would do anything to help plaintiff, we really don't know that this video was taken at the date and time you claim, correct."

A: "Yes, I suppose so."

The point of the above exercise is to demonstrate how it can go wrong, when your evidence is not a slam dunk. The judge might decide that the friend was a credible witness, or not.

But, for me, I don't want to waste my client's money or time, so if someone is asking me in advance what sort of evidence to obtain, I want them to get something that's irrefutable.

For instance, if it just happens that there's a postal worker walking by the home at the time that the transfer is to take place, and you get him/her to state the date and time, then that would be pretty irrefutable evidence, unless you happen to be a professional video editor (modern technology can pretty much phony up anything -- just ask Steven Spielberg).

So, it's not so much that plaintiff won't win -- it's about KNOWING plaintiff will win. The object of a contempt action is to put a stake in your opponent's heart, not to get a hand slap or a dismissal.

[notnew]

Yes you are right about the hand slap. I felt that was all my ex got and it really didn't mean a whole lot in the long run since at this point, I am having just about 0 contact with my child. That contempt was about 4 years ago or more. Too much to remember anymore.

You are right about the video thing too. It is just crazy that family court hearings are being conducted just like criminal trials. It's even worse that a parent is willing to go to the lengths they do to create these situations, but they are and that is why this board exists. Thank GOD for you soc.  

Sounds like you've been having a rough week.  I hope things get better.

[WhatToDo]

 "So, except for your testimony, and you admit you would do anything to help plaintiff, we really don't know that this video was taken at the date and time you claim, correct."

A: "Yes, I suppose so."

So for something like this, I could get my fiance' to tape all this. And my cell phone has the date and time displayed on it so I could just hold the phone up close enough to the video recorder to show what day it is.

On my court order, it says I am to have my daughter every other weekend. But it doesn't give an exact date for the visits to start. I sent ex a letter stating I want visitation this weekend and for her to respond via mail if this weekend doesn't work. She didn't respond so I'm going to the pick up location (police station) with a police officer.  I know she won't show up.

In the past she had said she wants any of my intented visitations in writing. Another time she said she wanted everything to go through our lawyers.

So when she doesn't show up...

1. Should I send her another letter immediately asking for 2 weekends after this one? (so it stablishes the every other weekend agreement)

2. Or should I send her lawyer the letter of intent and ask him to relay the message to her?

3. or Is there a different approach I should take instead of sending the letter?

[socrateaser]

You need to post the exact text of your court order re custody/visitation/parenting. Otherwise, I can't really tell what constitutes contempt.

[WhatToDo]

IT IS STIPULATED that the defendant (me) shall have visitation rights with *daughter* pursuant to the South Dakota visitation guidelines, said visitation to be every other weekend from 8:00 a.m. to 5:00 p.m. on Saturday and 8:00 a.m. to
5:00 p.m. the following Sunday. No overnight visits shall be allowed. Defendant shall be responsible for transportation for the weekend visitations.

IT IS FURTHER STIPULATED that the defendant shall be allowed reasonable phone access to the minor child of the parties, and the parties are to keep each other advised as to the location of the minor child.

IT IS FURTHER STIPULATED that this stipulation shall remain in effect until further order of the court.