New York - Positive Forensic Evaluation + Negative Lawyer = ???

[ladiva23]

After 8 months of being put on a torture rack (False allegations of sexual abuse made by bio mom via ACS and SVU - that have ALL came back unfounded) and 6 years of trying to avoid fighting for custody of a four year old and seven year old (beautiful girls!), we finally decided to file for full custody of my husband's daughters.  Everything went well until the last court date.

The forensic evaluation came back with a recommendation that my husband and I be granted full custody of the children.  This is based upon several things, like our willingness to be parents that encourage the children to foster a relationship with both parents, the finding by the forensic evaluator that there was no inappropriate touching at all, and that the children were coached to tell this lie.  But not all of the report was faxed and there were some pages missing.  The judge had the case adjourned until August 3, 2011.  While they were waiting to type up the papers, the judge asks the GAL who the children wanted to live with.  She stated the kids wanted to continue living with their mother and have visitation with the father.  She last saw the children in January

Now, here comes our lawyer hippity hoo raw-ing about what the GAL said! "Its better if you just tell the judge you want make up time with the kids, because they've been so alienated from you both, let the kids come stay with you for a month and then file for full custody when they get older."  I told her, "If we wanted to do that, then wouldn't we need a change of circumstance in order to change custody?" Essentially you're saying we'd have to wait for her to do something as equally crazy and we'd be letter her off the hook for filing false allegations."

Lawyer says, this is bio-mom's first time filing a false allegation, so the judge will probably not change custody.  WHHHHHAAATTT??

I'd like to think I'm too emotionally involved.  I'd like to think our lawyer knows what she's talking about because she's been doing this for years.  But I'm tired of the children's mother always getting a pass.  "Its her first time." I think it should be her only time.  My husband and I are thinking about filing a motion to change lawyers... what do you think?  Its not like we don't have proof of the mom frustrating his visitation for the last six years.  I have a 5" binder full of degradation via Facebook, text messages and even a voice mail (with court approved transcription) where she tells him "that's it for visitation" and then here come the police to my house 20 minutes later to take away the children because she lied and said it wasn't his weekend when it was.  I have discharge summaries from hospitals that say the children were suffering from untreated eczema and other rashes and the hospital called ACS on her.  We have the photos of both girls feces and urine stained underwear.  We have journal entries dating back to 2010.  E-mails, phone records etc. 

A recommendation for full custody from the court appointed forensic evaluator; unfounded and expunged ACS report, video, photos, artwork several reputable character reference letters.  Yet, the lawyer thinks we will lose at trial because my husband tested positive for marijuana in the initial stages of the case.  We brought up the fact that he does not do it around the children, being he's the non-custodial parent and this was just sprung on him. 2) He goes VOLUNTARILY to a program where he's been getting tested every week  and it comes up negative since the first failed test. 

What do we do? File a motion for a new attorney?

[tigger]

6 years of trying to avoid fighting for custody of a four year old and seven year old (beautiful girls!), we finally decided to file for full custody of my husband's daughters. 

How do you spend 6 years trying to avoid fighting for custody of a 4 year old? 

[gemini3]

Yeah... there must have been a little bit of time in there where no fighting was going on. 

[ladiva23]

 

6 years of trying to avoid fighting for custody of a four year old and seven year old (beautiful girls!), we finally decided to file for full custody of my husband's daughters. 

How do you spend 6 years trying to avoid fighting for custody of a 4 year old? 

Hi... thanks for looking for clarification because you're truly concerned.  The four year old will be five next week, and the 7 year old will be 8 in two months.  So perhaps I should have told you while bio mom was pregnant with their second child, she basically told my husband she only needed him to make beautiful kids and left. 

[ladiva23]

 

Yeah... there must have been a little bit of time in there where no fighting was going on. 

Maybe, the first time she filed a false police report on him was June 2006. Go figure.

[tigger]

I asked because there are some who come here and as they "speak" (usually with multiple posts) their stories don't add up and it makes it difficult to determine if they are here for real help or for justification in making someone else's life miserable.  Usually, it's just the emotion confusing facts but it doesn't hurt to ask.  Honestly, I figured yours was a typo and you meant 3 years avoiding . . .

Others with more actual court experience (my ex and I always came to an agreement with the exception of the last time that landed in court and did a lot of damage to all parties) can chime in here but I'd say if your lawyer isn't willing to fight for you, you shouldn't be willing to pay her. 

[ladiva23]

 

I asked because there are some who come here and as they "speak" (usually with multiple posts) their stories don't add up and it makes it difficult to determine if they are here for real help or for justification in making someone else's life miserable.  Usually, it's just the emotion confusing facts but it doesn't hurt to ask.  Honestly, I figured yours was a typo and you meant 3 years avoiding . . .

Others with more actual court experience (my ex and I always came to an agreement with the exception of the last time that landed in court and did a lot of damage to all parties) can chime in here but I'd say if your lawyer isn't willing to fight for you, you shouldn't be willing to pay her. 

Thanks Tigger for the explanation! I've seen some of that drama first hand on other interest boards that I've been a part of.

I don't think custody issues are anything to joke around about, and I refuse to be a victim... I believe that's why I've held my silence for so long.

***Good news is: We just e-mailed the husband's lawyer, from a friend's advice and were respectful but firm.  She replied back that she didn't say liberal visitation in lieu of full custody.  But we know she did.  She even said we could file again when the "kids get older because they are finicky."  She said its in her experience that with things like this its better to take time than to just jump right in.  But like I said, we've been avoiding this so long, it's like standing on the ledge.  Bio-moms actions have pushed us to the limit****''

We're now supposed to meet with her on Friday to discuss questions for the trial... I don't think this is premature at all... I think that God aligns things for a certain reason.  Even if Bio-mom retains custody, at least the girls know that we fought for them and will continue to fight.  They will process this when they get older.

[ocean]

Really have a heart to heart with your lawyer on Friday and listen. I am in NY and it is NOT father friendly yet. Judges here often do what the GAL says. Ask lawyer what this judge has done in the past. Weigh your options. Family court is NOT fair and it does not go smoothly. What the GAL is saying is what the KIDS want. The kids are being pas'ed by mom and do not want to live with you. It may get to the point where they have the kids go on the stand against you or that the kids will go speak with judge themselves. I still say, go for it ONLY because you do have the forensic eval on your side.

Are you in same school district as mom? Can you try and offer a 50/50 situation if you are close enough....

Since he has the drug use, even if clean now, he is not portrayed as clean parent either.

Go for the custody but have a back up plan all laid out with schedule times/dates/ holidays/summers so you can whip that out and ask for that to be court ordered if things do not look good. Ask for the GAL to meet with you and the kids again? Has the GAL seen you guys together? Maybe have the lawyer or you call GAL and see if you can make an appointment so she can see your interaction with kids. Have a list of questions for lawyer to ask GAL. Our lawyer then went though our questions and picked what he could use.

Our dealings with family court is not a positive one even with tapes of our BM screaming and demanding things from us. She has the kids wrapped around her finger and whatever happened in court, she would go home and twist it around so many times we had to laugh at her interpretation. My only advice would be to ask for counseling to start ASAP (and if you can go and find a good one you like you can ask the courts to put that name down so mother can not change counselor). That way you can talk to the kids with a counselor through this process and tell them you love them and the counselor can bring up things "mommy" says to them. You can ask that counseling will stay with current counselor and will not stop unless BOTH parents agree.

What county are you in?
Good luck!

[ladiva23]

Hi Ocean,

Thank you for your response.  I appreciate it!  I have a question... are judges finicky as well?  Our judge is relatively new to family court, but he always talks to bio-mom sternly "Bio-mom, if I find out you're coaching these kids, you will lose all rights and custody WILL be turned over to the father."  "Bio-mom, if this forensic eval comes back unfounded, you are going to miss out more time with your kids than the father has."  Our lawyer says since he's new, she's not sure how he will rule, but why would he say something, and then give a pre-motion speech about "I see too many cases like this come in here, and the courts are tired of false sexual allegations."  If he didn't intend to rule fairly.

I read somewhere that when deciding the best interests of the children, there are like 13-16 factors that the courts take into consideration.  In NY, does a judge give a four year old and seven year old SERIOUS consideration, that they're telling the GAL that they want to live with their mother, when it's their mother making up these insane accusations? I mean, she even went as far as to say "He inserts his fingers into my daughter's vagina".  I'm sorry, now I see what Tigger means when she talks about "emotions".  I am SO angry at this woman.  But because I am the calmer of me and my husband (obviously, I haven't been accused of sexual molestation, just a lessor, kidnapping her children because she forgot that the six year old had a half day and I was on vacation so I just happened  to be doing laundry and the bus driver beeps to get my attention.  He releases my SD to me, I call her mother, she doesn't answer, take her to her aunts job, her grandmother's house, etc... then decided to go back to the laundry mat.  My husband gets in contact with her 10 -15 minutes later, but she doesn't contact me until an hour later, and doesn't come pick up her daughter until 3 1/2 almost four hours later.  She states she was 10 minutes away and I kidnapped her child from off the bus.  She even went to the police and made a report that says "I am in fear that she WILL kidnap my daughter. and my children's father doesn't have permission to pick up my kids and neither does his girlfriend."

The children, well at least the eldest told the Forensic Eval, on two occasions that I know of, that she wants to live with her father, me, her little sister and our cat.  Thanks for the tip on reaching out to GAL about re-evaluating how the kids interact with us. We REFAXED her a letter we sent to her 6 months to almost the date of the allegation happening, about the kids dirty panties, the fact that the kids have said the last time they took a bath was at our house on Sunday, and our next visit with them was Tuesday night, that my SD says her mom is mean to her and says bad things about DH and I.

Are you in same school district as mom? Can you try and offer a 50/50 situation if you are close enough....

Yes, unfortunately we live two blocks from her mother which is where she spends 100% of her time.  So we always end up passing each other.  The children were going to a specific school last year, but then bio-mom moved in May 2010 and didn't tell us, until my SD let something slip that they bought new furniture.  When I asked her to clarify why she said her mother bought instead of her grandmother bought, she cried, and I asked her what's wrong and she said "My mom says I'll get in trouble if I say we have a new house."

We had to wait until the school year started again to find out where they live.  Which is like 10 minutes from my job, and my job is 10 minutes away from both our house and the grandmother's house... so.

Go for the custody but have a back up plan all laid out with schedule times/dates/ holidays/summers so you can whip that out and ask for that to be court ordered if things do not look good. Ask for the GAL to meet with you and the kids again? Has the GAL seen you guys together? Maybe have the lawyer or you call GAL and see if you can make an appointment so she can see your interaction with kids. Have a list of questions for lawyer to ask GAL. Our lawyer then went though our questions and picked what he could use.

I feel like we just came from court in July 2009.  She took him for full custody, and when asked why she wanted full custody since she didn't write it on the paper, she stated, because I want to move to another state and I don't want him to stop me.  The judge asked her if she had a school picked out or an apartment.  Mom says no.  So the judge told her to come back when she did.  Judge at that time granted us MORE visitation, and MORE defined legal rights. 

Our current order is that we have EOW, one weeknight, two weeks vacation, odds and even years for holidays, etc.

We are in BX county.  And can you believe when I e-mailed her to ask her if we could have the kids this weekend, because their cousins want to have a sleepover, her reason for saying "NO" is because "you and your husband decided to go ahead with your petition.  Perhaps he can start visiting with his kids sooner if you take us up on our offer." 

Talking of the offer in which the lawyers didn't want to go to trial and just give us the children for the rest of the summer, but return them to their mother when school starts.

[ocean]

Yes, depends on the judge and the mood of the judge that day. Remember you know what judge said exactly BUT this judges sees many cases a day, every day and probably will not totally remember what he said at last hearing. Sounds like it is a better of the judges though....

The ages of the children are too young to go on the stand so the GAL will do the talking/questioning for them. If it goes to trial, your lawyer, her lawyer and GAL will all be allowed to question each witness.

Is she allowing any visitation now? Keep track, go and try and get kids, get police report, give to lawyer. It really is a pain when you know she wont be there BUT when you hand the judge a stack, it shows you tried. The lawyer will have to/ or you can get a certified copy of police report (most times the one you get is hard to read or just has number on it and not the whole complaint).

When you go this time, ask your lawyer if he can ask for summer visitation (make-up time if she owes you any) be granted through judge on Aug 3rd. Little battles each time you go to court.

I dealt with suffolk county.... You should be getting more summer visitation at this point also...half the summer (4 weeks) is normal for around here even if parents are close. Or one week on/one week off since you are really close but get in there that you may take 2 weeks in a row for vacation if you inform mother by June 1st of each year. (and father will have final say over his weeks).