Visitation and Deployment

[rolo2302]

I am in the military and currently deployed. When the ex and I divorced in the decree it was stated that I were to call and she must return my call that same day. Well, what I'm doing now is emailing her and trying to set up times to talk and see both of my children using the webcam. I don't get a response from her and she doesn't get on the webcam so that I could talk to them and see them. Do I have a claim in holding her in contempt of court even though I'm deployed? Also, I was wondering what consequences may come out of this on her part? I would really like to have custody of the children as I feel that I would be the more responsible adult in allowing visitation and letting her talk to the kids. Would I be able to use this to have custody changed?Any help would be appreciated.

[MixedBag]

IMHO -- and I'm no attorney

You probably won't get the judge to hold her in contempt if video messaging isn't mentioned specifically in your decree.

What you could do is to ask the court to include ALL forms of communication -- and then I'd guess that if you want video messaging, you might be ordered to provide the hardware for her end.

Also, this isn't "enough" (again, IMHO) to warrant a change of custody filing when you get back.

If it continues, you might get make up time with the kids -- you probably missed some physical time with the kids -- particularly if she has never called you back and you missed calling the kids.

[rolo2302]

I talked to my lawyer and the lawyer is saying that I could possibly hold her in contempt of court for it but I would have to do it all when I get back. I have been documenting everything. I am missing a lot of stuff with them while I am gone. I try to talk to the ex but she doesn't make an effort or says that she is too busy for me to see or talk to the kids. As for the hardware, she's already got it all since we have used it when I first arrived and she all of a sudden decided she's too busy and I haven't seen them in the past 2 months.

[MomofTwo]

Mixed Bag is right...if your court orders do not specify that while you are deployed that you are to use web cam and she has to answer your emails, there is nothing to hold her in contempt for.   What do your court orders say regarding means of communication while deployed?  If your orders are ambiguous or silent regarding communication while deployed, you need to file for a modification and have that included in the orders.

This is not enough for a custody change. 

[Davy]

I guess I live in a totally different world.  This is a matter of human decency.

One would think if orders are ambiguous or silent regarding communication while deployed it is because it is a "Given" and for anyone to defeat that communication is at very least very mean-spirited if not evil.

This act of defiance is very relevant to Oh Ruby's ability to remain as a primary custodial parent.

[MixedBag]

Davy -- we live in the same world

You are right -- it is a matter of human decency.....mom isn't displaying any at the moment.

I think dad needs to get it clarified and added -- but he shouldn't hope or count on contempt.

and this round will assist down the road....it's a baby step, but one in the right direction

[snowrose]

Is it mean-spirited to not allow communication via something other than the phone?  Yes.  Is mom ignoring forms other than telephone communication within the letter of the law when it comes to this agreement - most likely.  There is the odd judge who might come down on the side of Rolo, though.

Yes, the very best thing to do is probably expand your custody order to include all currently available forms of communication.

And I'm afraid I have to agree, the communication problem at this point isn't enough to get a change in custody.

[MrCustodyCoach]

There are general, vague communications clauses in almost every custody order, so yes - you can file for contempt of court and yes, a judge can find her in contempt.  Best you can do is continue to try to make contact.  Continue to document failures for callbacks or videoconferences.  Have at least one of your team be there as witness as they are able, you could use their sworn affidavits later or maybe they would even appear in court on your behalf to testify.

While it's unlikely that it will result in a custody change, these are the situations you use as the impetus to request changes to, not only the communications issues, but to the custody order itself in terms of the parenting time.  Just because you won't win it doesn't mean you don't ask for it.

[rolo2302]

Honestly, I never thought about trying to get anything put in about deployments. I figured the means of communication would still be the same as long as there was an effort on my she would have to put up an effort. To me, it feels like BM is trying to hide the kids from me and not let me be a father to them. I understand there are some dead beat dads that don't want anything to do with the kids but I want to be there for them and be in their lives. I would like to get a change of custody if it's possible at all. I'm having a hard time as it is trying to get into contact with the kids even when I'm back at home. I talked to the lawyer and she says there is something with contempt that I can do.

[ocean]

Have the lawyer call the BM or send her a stern letter stating that the father has a right to speak to his children during deployment and that if she does not give your lawyer times the children will be available then you will be forced to take this to court and ask for makeup time upon return to the states. (I am sure the lawyer can file something and you either have telephone conference in if possible or have lawyer speak for you?)
Then file for clarification and add in times when father is deployed...then ask for extra time for the first 6 months upon return..more time that first summer...the holidays in that next year since she is getting this year.

[gemini3]

You could also have your lawyer send her a letter requesting that the children be available for a video conference on certain days at certain times during their father's deployment, and asking for a response in writing if they will not be available at those times.  Then call at the specified times and notate whether or not you were able to talk to the kids.

[rolo2302]

It seems that she gets information that she has to let me talk to the kids through lawyers and if she doesn't action will be taken in court and she complies for the time being and then decides later on nevermind that's too much work for me to keep doing that. That's like in the summer. I wanted to have my son for a few days before I got deployed and she didn't want to let me have him. I told her it was in the decree that I get him in the summer for 2 weeks and she still was refusing me that time. The only way she complied was through the lawyers and being threatened with action if she didn't comply with it. Then she just goes back to the same thing and refuses me all over again. That's why i was wondering if it was possible to get a change of custody because this isn't a 1 time thing. It's on going and it's the same thing each time.

[gemini3]

I'm not sure that it will be enough to warrant a change in custody.  Unfortunately things move very slowly with these issues, and you have to take baby steps. 

Your first should be to have your CO changed to include video communication, and also to include make-up time for any visitation missed due to deployment.  There are some who will say you shouldn't get this - but there are judges who will do it.  Especially now, when there is a much more sympathetic atmosphere towards the sacrifices of service members.  My husband has the make-up time clause in his order, and he has it so that the kids still get to visit with our family when he is deployed - which helps a LOT with the communication.  I will make sure he gets to talk to the kids.  His ex... not so much.

Once you have those in place you can hold her accountable.  If she denies you communication you will have grounds for contempt.  If you have enough of these, then you might have a chance at a change in custody.

[Davy]

Thanks Gemini for the quote below :

"There are some who will say you shouldn't get this - but there are judges who will do it.  Especially now, when there is a much more sympathetic atmosphere towards the sacrifices of service members."

Just a reminder ...I'm sure this comment was made in consideration of something everybody  could relate and with the realization these sacrifices have been made thru-out history in pursuit of freedom and justice.

When Rolo hears "Welcome Home" the MAJORITY will be of his mindset and the MAJORITY sees no reason he shouldn't have the communication NOW.   

[MixedBag]

EX#3's EX was the same way -- only with tons of letters back and forth between attorneys would she THEN comply sorta with the order in place.

You've been given a good plan IMHO.....

[rolo2302]

I've been talking to the lawyer about all this. Seems like they are going with a contempt of court and make up time. Which is good I'm happy to at least hear that from the lawyer. So I know it's a start and I'm sure in the end I will get some where with all this and hopefully I can get a change of custody from all this in the end. I just feel that I'm the most responsible one in this whole situation. Seems like the ex wants me out of the children's lives and it shouldn't be that way.

[ocean]

You would need to come home and her keep denying visits over and over and the judge get sick of her. You will not get a change in custody over this ...but you should def get make-up time when you get back for the missed visits and contempt for not allowing access when you are deployed. BUT there is no real punishment for contempt.

[rolo2302]

I guess I just need to do what I need to do and take it slow and do what I can for it. Another question that popped into my head was that she needs to be there for the contempt of court hearings right? What if she doesn't show up? What happens then?

[MixedBag]

Depends on the judge....NYParent's experience (person on the board here) is that the hearing gets rescheduled.

BUT the lack of respect by not showing definitely doesn't sit well with any judge.

Rescheduled.

Default Decision

Or heard without her there -- maybe just her attorney there.

There is no "one" answer.

[rolo2302]

From what I understood was that for a contempt of court hearing she had to show up there as well. If that's the case and she doesn't show up then what? Jurisdiction is in Idaho and she lives in California and I know for a matter of fact that she can't make it up to Idaho for a court hearing or she just doesn't want to and doesn't think it's necessary.

[MixedBag]

EX#3's EX was the same way -- and it didn't go too well for her in OH.

She fled to NV.....

"She just doesn't want to and doesn't think it's necessary" -- is more like it.

Just keep after what's right and best for your child.

[MomofTwo]

MB is right...depending on the judge, they may reschedule, allow her attorney to only be present, allow her to attend telephonically, or issue a default response.  Honestly, don't get real excited about this, it's usually just a slap on the wrist for contempt, possibly make up time (and that is wholly dependent on the judge as well) and maybe a more defined method of communication while you are deployed.  It's a baby step.

[rolo2302]

She was the same with the telephone calls when I would call her and she would have to return my calls. I didn't keep track of those because I was leaving soon and didn't find it necessary at the time. So it's not just one thing it's a lot of different things that are just irritating me and just wish I could switch up and have the custody because I know I am more responsible and would be willing to cooperate a lot more.

[NYParent]

As MB stated, my experience has been that BM hasn't shown up to two court hearings.  Both times the hearing has been rescheduled.  On the second no show the judge said that he would personally be ordering BM to be on the third hearing with an attorney (she did not give me a summons).  I'll let you know what happens if she doesn't show up the third time.

Good luck.  I know how hard it is not being able to speak to your children (I am going through that now, it seems to be my punishment for not giving into her demands), although I imagine that it must be much worst while in deployment.

[rolo2302]

NYParent I sent you a private message asking you a few things.

[NYParent]

Rolo- I sent you a PM back.

[rolo2302]

I appreciate everybody that gave me advice through all this. Thank you very much I will keep everybody updated once I get back and start everything.