Is BM's request a valid motion?

[snowrose]

We started out by putting together a motion to request Child Support from BM.  And since we were having problems with BM moving all the time and not wanting to tell us where she was going, we added in a request for an order that BM must always give us a valid, current home address and telephone number.  (Yeah, I know that's not perfect but it's a step in the right direction.)

Anyhow, BM doesn't like that we're asking for Child Support, so after responding to our papers one time she decided to attack.  Even though in two sets of paperwork she says that no changes need to be made in custody, access or child support - and even though she's offered a very meager child support - suddenly she's put up a straw man argument in the middle of some paperwork saying she wants more time with SD9.  All of a sudden she's added in this request saying she wants overnights in the middle of the week and all.  (Mind you, she doesn't even take SD for the full access time granted by the courts and she's cancelled 26 days worth of visits of the days she does take SD since last December.)

But my question is, since BM didn't bother to start this as a Motion filed with the court the way we did, does the court have to hear her request?  We had to begin our case by filing a Motion, filling out the paperwork, serving the paperwork, etc.  Can she just bypass all that now and put forth this strawman argument to try to distract from our Child Support request?

[ocean]

How did you know about it? Sometimes you will be "served" at court that day. She can bring up things to counter what you said but if she asks for more time, you/your lawyer should object and state you are not here for that and not prepared to fight that now (that you were not served..).

Since she told you her ideas...make a nice colorful one page calendar with the days she took child and then a different color of the days she missed..Then put totals at the bottom.

[snowrose]

How did you know about it? Sometimes you will be "served" at court that day.

The judge required that she give her response by Thursday at 4:30.  She gave it to us on Friday at 7pm.  Her response was supposed to be regarding giving us her valid phone number and address, and on child support.  The paper has an area that says "What are the issues of this settlement conference?  What are the facts?"  And that's where she suddenly puts in that she wants more visitation - even though it's not a part of the two subjects that are supposed to be discussed in our motion.

She can bring up things to counter what you said but if she asks for more time, you/your lawyer should object and state you are not here for that and not prepared to fight that now (that you were not served..).

We'd like to object because no motion has been filed regarding a custody issue, right?

Since she told you her ideas...make a nice colorful one page calendar with the days she took child and then a different color of the days she missed..Then put totals at the bottom.

Great idea!  Thanks!

[MixedBag]

EX#3's EX got away with so much of this type of stuff that it was comical.  Why have procedural rules?

Yes, she can also file a motion to ask for more time -- really at any time.

Is what she did considered a motion?  maybe.

And that's where your frustration comes in -- very valid.

Hopefully, the judge will address all of this at one hearing.

Is your state one where "time with the child" or overnights are figured into CS formulas?

[snowrose]

EX#3's EX got away with so much of this type of stuff that it was comical.  Why have procedural rules?

Yes, she can also file a motion to ask for more time -- really at any time.

I'm sure she could file a new motion, but she didn't do so.

Is what she did considered a motion?  maybe.

We'll find out soon enough.  We're prepared to respond to some of it even now, and if that's not enough we have plenty of witnesses on our side - including SD's therapist and CPS.

Is your state one where "time with the child" or overnights are figured into CS formulas?

No.  Child support is based solely on the NCP's income.  There are tables with $100 increments, and the net income reported on the year's tax return is what the support is based on.

[MrCustodyCoach]

They're separate hearings and the court will NOT entertain a custody hearing on the same day as her petition to modify custody.  Further, if they do entertain her petition at a later date, they'll likely see it for what it is (retaliation for your motion for CS) if you have a good attorney.

[ocean]

Not true...
It really depends on what type of judge is overseeing this case. Since they are asking for child support and address/phone number issues they will probably be assigned to a regular judge and not just a child support one. If they go before a regular judge and she has no lawyer, the judge may hear her side of it and if she brings up that she wants more time and then figure out child support, he may delay the whole thing to a hearing on another day. The poster can counter what she says with "well we are not hear for that" but that doesnt mean that it wont be heard.

At a hearing you are allowed to bring up why ...and she is going to say she has a motion in to increase parenting time and wants this hearing to be heard with that one so the number is fair. Next date.....

[gemini3]

I agree with the calendar suggestion - great idea.  Your attorney can point out that she isn't exercising the visitation she has currently.  Especially if the additional time she is seeking will put her into a lower CS bracket.  Most states have a shared custody calculation.  What state are you in?

Also, many states have legislature that says a CP must give the NCP and the court 30-days written notice of their intent to relocate.  If your state has such a statute, you could file for contempt instead.

As far as the language you are seeking to have added - it leaves a lot of room for trouble, and it will be difficult to enforce.  I am not an attorney, so you'll want to check with your attorney on this wording, but my suggestion would be to have it read:

"Each parent must give the other parent 30-days written notice of intent to relocate, including the new address and date of relocation. 

Each parent must notify the other parent of any changes to telephone numbers in writing within three days of changing such numbers."

[snowrose]

Well, what ended up happening was that the judge addressed the visitation increase request from BM first.  He wouldn't even let DH talk about the procedural problem and said we could discuss that next.  (Probably because he had no intention of telling BM that she could have more visitation.)

He told BM that compared to the other people that he was seeing in court right now that BM had very liberal visitation.  He asked BM about if she wanted more access in the summer, rather than during the week.  She answers, "But I had my two weeks in the summer."  Actually, she didn't.  She only took SD for 12 days, not 14.    And I think the judge saw that for what it was, saying she wasn't interested in more time during the summer. 

So, the judge tells her that she can take it to trial but that if she does she may actually lose some of her access, since she's not taking all her access already!

(I think BM was trying to get more than 40% visitation, so she wouldn't have to pay child support.  Now, that doesn't mean she'd actually take the 40%.  She'd still cancel like crazy, I'm sure, but she'd then have had 40% on the books and not have to pay us - until we finally took her back to court.  Fortunately, I think the judge saw through that.  He even allowed DH to make a 'semi personal attack' when DH said that BM probably didn't even want the visitation, that it was just a sham to distract from our request for child support.)

As for the telephone and address thing, the judge started talking about a requirement to state within 60 days of moving - but then he realized that was in the custody order for US, as we're the custodial parents. 

Anyhow, he just kinda let that slide and didn't do anything with it.  But we were able to slide in a question about what 'reasonable telephone contact' meant, because BM has refused to let SD call us at times.  So the judge did clarify that BM was to allow SD to call us and that our interpretation of what reasonable telephone contact was was correct.  

And, yes, we did get child support!  We're very glad.  It'll make things much easier on us.

[Kitty C.]

Way to go, snowrose!  Guess the BM got put in her place today, you think?