Denied visitation

[sad stepmother]

Hi all,

This is my first time telling our story. My husband has been fighting for his 6 year old son since the day he was born.  His ex has been very difficult and has much difficulty abiding by court orders.  My husband filed a motion for contempt to enforce visitation and a hearing was held in 2000.  At the hearing my husband was awarded joint legal custody and given guideline parenting time and his contempt citation was left subject to call.  Since 2000 his ex has continously failed to comply with court orders denying access to his child whenver she feels like it.  We have given her way to long to get her act together because we cannot afford an attorney.  Well recently his ex started making false allegations at my husband and I from everything from abuse to panning me out as the evil stepmother in Cinderella.  At the beginning of July my husbands ex sent him a nasteo gram accusing us of threatening to abduct the child and informed my husband that there would be no further visitation allowed. She even filed a friviolous restraining order to keep my husband from seeing his son.  Back on June 30th, my husband told his ex that if she couldn't get her act together that a change of custody would be sought.  How that is seen as a threat of abduction I don't know. We filed for sole custody at the end of July, the court date is in about a week.  We don't have an attorney and cannot afford one (my husband is disabled because of an autto immune disease) so we are having to go at this alone.  His ex's attorney is a real snake and at our first meeting with her she screamed at me and my husband and tried to provoke my husband to hit her.  Needledless to say we will not take that.  But have concerns about her behavior and are leary of going up against her in court without an attorney.  My husband dearly misses his son and we have great concern for the child's well being, but don't know what else to do to get my husband's ex to abide by court orders. At least with a custody change the ability to deny visitation is taken away from her.

Sorry this is so long but 6 years of fighting is difficult to tell in one message.

Any suggestions?  Please help?

[Lawmoe]

Most states have statutes that allow for a change of custody if there has been a pattern of willfully denying parental rights.  You must do your homework.  Your courthouse likely has a law library.  Hit the books and find out what your standard is for changing custody.

An order that did not find contempt four years ago, will have little effect. You can restate the allegations from that petitoin, but the four year lapse will hurt.

Anything that is related in Court must relate to why a change of custody is in the best interests of the child.  Also be prepared, with witnesses and exhibits, to rebut allegations of abuse.  

In most states, the first hearing is only to determine if sufficient information has been alleged to warrant a trial on the issue of custody. If you meet that burden, a custody evaluation will likely be ordered.  An pretrial and trial date may also be set.

[TGB]

See Tips for Getting Started at http://www.deltabravo.net/news/10-19-2000.htm

You can't win a he-says-she-says battle in court. You have to have documentation that clearly shows exactly what she did and when to keep you from your child. You also need to show how her behavior is hurting the child. Only by doing this can you get custody and/or get the judge to take action against the ex. The parenting time tracker or Optimal are very useful for this.

In addition to the links in the article above, see "You Don't Have To Prove PAS" at http://www.deltabravo.net/custody/provepas.htm . It discusses the importance of school records (make sure you get attendance records and report cards from the school), which can help show how her behavior is hurting the child.

The rules of evidence say that you have to submit your evidence to the court and the opposing attorney BEFORE the court date (local rules could say anything from a day to a week in advance). Don't try to bring evidence with you that you haven't properly entered into the record. The judge won't look at it. The copy you give the opposing attorney has to be complete, but it doesn't have to be neatly sorted or in color. If you sent a fax to the attorney a year ago, you don't have to send another copy now. Give the judge good copies (bench copies).

An exception to the evidence rule is if you expect the ex to make new accusations and you bring a document to present as a rebuttal. In court my ex once tried to say I voluntarily quit my job, an allegation she had not made in the court papers but that I was sure would come up. I was able to show my pink slip as a rebuttal to that accusation and she couldn't object because it was a response to something new she brought up.

If it's legal where you live, I strongly recommend that you secretly record all conversations with the opposing attorney. Keep a journal of all contacts you have and what is said. It can be extremely valuable.

[sad stepmother]

Thank You for the tips.  If anything we have done right has been to document everything, each denied visit and we have kept every letter that my husbands ex has written to us stating that she does't need to follow any order, and submitted them with our motion and provided the judge and his ex's attorney with a copy.  The contempt citation was left subject to call four years ago and we will certainly be calling up those previous denied visits as well.  We are only allowing his ex's attorney to leave messages on our answering machine and are not having any direct contact with her.  We have submitted all of the recorded messages and videotapes as evidence that his ex continues to show a pattern of willfully denying visitation and refusal to follow court orders.  The judge four years ago made it quite clear to my husband's ex that a change of custody could occur if she continues to fail to make visitation work.  We are hopeful that the judge will keep his word and based on the evidence that we present will change custody.  We have been told by legal aid that the fact that my husband continues to be denied access clear up to the court date(it's been a month since my husband has seen his son)will likely hurt his ex's rebuttal agaist us.  Your suggestion of the parenting time tracker is excellent and we certainly will begin using it.

Thanks!

Sad Stepmom

[sad stepmother]

Thank you for the information.  The contempt citation four years ago was left subject to call and in our motion are brining the previous citation back into the spotlight.  We have taped phone conversations,letters from my husbands ex openly admitting to denying visitation over money issues and stating that she is the mother and can do whatever she feels are in the childs best interst.  And that my husband and I and the child's two siblings "are not good for the child".
At the hearing four years ago the judge made it quite clear that a change of custody could occur if visitation continues to be denied.  We feel we have done our best to present to the court that a change of custody would be in the childs best interest based on the evidence of denied visitation and that being constantly withheld form his father when the child is used to being with him is tramatic to the child.  Our hopes is that at the hearing on Tuesday that the case will be sent to an evidentary hearing and from there will go on to trial.  In Kansas, where we live, we know that many custody issues are settled before the need to go to trial. I'm hopeful of that, but we'll see what happens on Tuesday.

Thank you,

Sad Stepmom