3 Q's on temporary visitation and bankrupcy effects on custody

[durandal]

I am contesting custody of my 9mo. old daughter. My first court date is Feb 22, and I have retained an atty. but my atty. is requesting a continuance due to the fact that she is unable to be present at that court appearance.

Up until now, I have been visiting the child at the BM home. I visited quite a bit initially, sometimes for three or four days in a given week. Over the course of several months, that ground to a halt as I couldn't get any cooperation from the BM on visitation outside of the home. I saw my daughter last on Jan. 1st.

The baby had her 9 mo. well-baby immunizations scheduled for Feb. 15th, but the BM cancelled the appointment and told the doc's office that she would reschedule. She hasn't rescheduled, and the BM doesn't know I've been in constant communication with the pediatrician. This comes after the BM telling me that her and Jasmine were going out of town last weekend, which I have found out was also not true. I'm very afraid that she has some unknown medical reason for not taking the baby to be seen by the doctor.

When in court my atty. suggested that, in addition to the continuance, I ask for temporary visitation. I also have scheduled a doctors appt. on Feb. 23, the day after the court date. I want to ask the judge that I be allowed immediate visitation starting on that day (Thurs.), or Friday morning, so I can take my daughter to the doctor, and have at least the remainder of the weekend to try to 'rebond' with her.

Question #1 - Is it feasable that, given the circumstances, the judge is likely to grant this request? (Note: I also have photos of my living arrangements and the baby's room complete with photos of furnishings, clothing, food and essential supplies necessary for the weekend visit.)

Now, over the past nine month's, I've had the 'perfect storm' of financial woes (child support - which I initiated, student loan payments, and an auto reposession garnishment). After struggling for several months trying to juggle everything (and still buying items for my child outside of my cupport obligations) i finally was evicted from my apt. It has forced me to begin steps for filing for bankrupcy. In fact, I've already paid the atty. fees for filing and fully intend to follow-thru with this.

If left with student loans, I could very comfortably afford another apartment, and to take custody of my daughter and care for her. I already have moved into a much improved, smoke-free home in a good neighborhood, and can stay there as long as necessary (rent-free) until I can get past the financial hurdles.

I also have made arrangements with my work supervisor, who, along with his wife who takes care of their four daughters during the day, to provide free day-care for my baby for as long as necessary. In addition, I have a stand-by sitter who I've known for several years, also with two preschool daughters, just in case.

Question #2 - I'm thring to get my financial house in order - will the bankrupcy issues hurt or help? (Note: The BM is on welfare, smokes in her home, has worked for two months in the four years that I've known her.)

Thanks for the response!

[socrateaser]

>Question #1 - Is it feasable that, given the circumstances,
>the judge is likely to grant this request? (Note: I also have
>photos of my living arrangements and the baby's room complete
>with photos of furnishings, clothing, food and essential
>supplies necessary for the weekend visit.)

If you ask for a continuance, nothing else will be considered by the court, because if you raise an issue that your attorney would have raised, then you are not asking for a continuance.

Moreover, if your attorney is now attorney of record, the judge won't listen to anything you have to say, unless you are asking the court to remove your attorney so that you can represent yourself.

Why can't your attorney be present at the hearing?

>Question #2 - I'm thring to get my financial house in order -
>will the bankrupcy issues hurt or help? (Note: The BM is on
>welfare, smokes in her home, has worked for two months in the
>four years that I've known her.)

Probably irrelevant to the family court.

[durandal]

>Why can't your attorney be present at the hearing?

A: I believe that she cannot appear due to the fact that she was retained at such a late date (last week), and has obligations already scheduled for that date.  She gave me a letter stating that she would give the court the dates which she can be present. From what I have researched, she is a very good family lawyer, and comes highly recommended from several sources within the family court field here.

Its somewhat relieving to know that the financial issues, which are short-term, will not (or, perhaps I should say probably won't) negatively impact my case. I'm trying my best to get my things together for my daughter's sake.

Thank you very much...

[socrateaser]

>>Why can't your attorney be present at the hearing?
>
>A: I believe that she cannot appear due to the fact that she
>was retained at such a late date (last week), and has
>obligations already scheduled for that date.  She gave me a
>letter stating that she would give the court the dates which
>she can be present. From what I have researched, she is a very
>good family lawyer, and comes highly recommended from several
>sources within the family court field here.
>
>Its somewhat relieving to know that the financial issues,
>which are short-term, will not (or, perhaps I should say
>probably won't) negatively impact my case. I'm trying my best
>to get my things together for my daughter's sake.
>
>Thank you very much...

OK, that means that she's not actually your attorney of record, yet, because she hasn't appeared either at court or in a pleading. So, you can ask for whatever you want, because you're still appearing pro se. The bottom line is that the instant you ask for something other than a continuance, you will not be asking for a continuance.

I can't tell you what to do in this situation. If you think you're capable of representing yourself at the hearing, then do it. Otherwise, ask for the continuance and then if you're refused, then ask for what you want, because at that point you will have no other choice.

[durandal]

>>>Why can't your attorney be present at the hearing?
>>
>>A: I believe that she cannot appear due to the fact that she
>>was retained at such a late date (last week), and has
>>obligations already scheduled for that date...

>OK, that means that she's not actually your attorney of
>record, yet, because she hasn't appeared either at court or in
>a pleading....  bottom line is that the instant you ask for something >other than a continuance, you will not be asking for a continuance.
>
>I can't tell you what to do in this situation.... otherwise, ask for the >continuance and then if you're refused, then ask for what you want, >because at that point you will have no other choice.

UPDATE

I just wanted to give you and update on what actually happened in this case. We went before the judge, I stated what I was petitioning for (full L & P custody), and that it was primarily because of the child being in a 'relatively' unsafe environment - due to the BM history AND the fact that I was being denied parenting time and hadn't seen my 9mo.old daughter since Jan 1st.

BM then was allowed to rebut any claims that I made, (and once again perjured herself), but I had evidence to counter every claim she made - interestingly the judge didn't want to see any of MY hard evidence. Even though I told the truth and the BM did not in some cases, the judge lost patience with both of us and said that she didn't believe either of us.

But the bench started to view our case in a different light when I presented her the letter from the atty. I intend to retain. She is respected and well known in the court system here - which is something I'm willing to pay a premium for. The bench then asked some pointed questions and had us present some facts (employment status, any criminal histories, living arrangements, etc.) The judge then set a continuance for May, and ordered social services to perform home studies in each home.

I am probably going to ask that personality profiles be ordered too - the BM will have a difficult (impossible?) time masking her emotional problems.

But the best (and worst) part is this:

The bench asked about the visitation and why I wasn't allowed to visit the child, and the BM didn't have a valid reason. After taking my work schedule into consideration, she ordered visitation for four hours on Saturdays each week until the case is heard. The BM asked that the transfer of the child be done at a local precinct, and that I only be given supervised visitation. The judge agreed on the transfer location, but basically saw thru the BM's attempt to make me 'suffer' supervised visitation - I think she saw something in the BM's atttitude by the fact that she asked for supervised visitation in the first place.

Four hours a week only works out to less than nine days a year, thank goodness its only temporary. Its a somewhat bittersweet victory that, for all of the responsibility that I've tried to provide for my child (and the BM fro that matter), all I get is a sliver of time. But the system's 'stormy seas' are what they are, and I at least have to stay afloat before I can hope to reach the distant shore.

So that's it - I just dropped my daughter off at the precinct after four of the most lovely (and hard fought for) hours of my life.

Thanks for all your help and advice. When this is all over, I hope I have enough strength to volunteer to help others out.