In Contempt

[Lp54]

My fiance has a 5 year old son with his ex-girlfriend. For the past two years he has had problems with seeing his son. My fiance went to court to get a visitation schedule, she did not show up to court and the judge gave him a schedule "an ORDER" that he is allowed to see his son every 1st 2nd and 3rd weekend of the month and every odd ending year's holidays as well as every fathers day.

For the past  month he has no idea where she lives, she changed her cell phone number and has not contacted him. The last time he spoke with her was about 2 weeks ago when he called the police because she refused to drop off their son for visitation. She has not had a stable home for the past 6 months she has jumped from her moms house to her dads house to her uncles house and she has 3 other kids that are not my fiances.

 He wants to file for contempt but the problem is that he never served her with a copy of the order that was given to him. What he recently did is filed a police report so that he has proof that she has not allowed him to see his son. We don't know where she is at and therefore we cannot serve her with the order and we just don't know what to do.

[ocean]

Does she work? You can have her served there. You can call the court and see what is acceptable for serving her. Sometimes you can send it to the last known address or maybe you can send it certified/signature to her mom or dad's house (wherever she was last). Anyone over 18 can serve her so if you happen to know where she is at a certain time, you or a friend can just hand them to her a leave. Then that person has to sign a notarized form that states they served her. Good luck!

[CustodyIQ]

Hi,

First, I'd suggest hiring a private investigator.  For relatively little money, a good PI could locate her (and perhaps serve her personally with the orders).  For a bit more money, a good PI may be able to document the major issues going on in her life and/or find witnesses to testify against her.

Then, your fiance would be in a good position to change custody, if your home is more stable and he's more willing to be a cooperative co-parent.

Document everything that is going on, and use that documentation as part of the evidence for modifying custody.

It seems to me that you'll have an easier time modifying the custody than going for contempt.

Contempt is a really tough thing to do.  It's "beyond reasonable doubt" (same threshold as criminal prosecution) whereas custody rulings are via clear and convincing evidence (i.e., much lower threshold to prove).

[dadof2inned]

This exact same thing happend to me back last October (except my ex actually moved out of state).  

I don't know what state you are located but what I had to do was actually research my states statutes, take them to the police station to show she was actually commiting a felony by interferring with my visitation, the police were then willing to get involved.  The police then located her by speaking with her family members still in our state.  The police officer then served her of the court date for contempt.  

What did the police say when he contacted them??

[notnew]

Did he have an attorney?  I would assume that the court forwarded copies of the order to both of the parties. That has been my experience. Usually you are not responsible to serve orders that were issued by the court. You can call the clerks office and ask them the disposition of the orders sent to her. It is all public record.

Sounds to me like she knows the order is in place, that is why she is being elusive.

I bet you have been seeing your fiancee' (let's call him BF for boy friend for the purpose of my old fingers on the keyboard) for about 2 years haven't you?  Get my drift?

If the clerks office says that service of the order should be done by your BF, you can send to the Last known address. Send certified return receipt requested - where SHE is the only person who can sign, to all three addresses. You know she won't sign for them of course (if she does then great, these are all building blocks for your future custody reversal case).

When the certifieds come back to you as undeliverable, you have proof you tried to deliver and she has failed to sign for the documents.

Is she receiving child support?  How is that being collected and where is it going to? If you can obtain that address you can send the order there as well.

IF the clerks office says the court sent the documents to her last known address then BF has all he needs to file for contempt. Personally, I'd file for a motion to modify custody based on the change in circumstances. Let the contempt be a separate motion.

Police don't like to get involved. Court takes a long time and you HAVE to follow the rules, but SOMETIMES justice is done with perserverance. Hope for the best and expect the worst. FAmily court sucks.

When is the wedding? His chances of getting custody improve with the degree of stability in his life (DON"T make that comment the final word in the process of setting the date - you said fiancee' so you two must have discussed it already!).

Be aware: This type of relationship comes with a LOT of baggage that can be overwhemling and ruins many would be great marriages.

DON"T be the go-between for your BF and the BM (kids mom). Let him do all the communicating. BTW - all communication should be direct and business like. He needs to send her letters stating things like "per the court Order, I will exercise my visitation at XXX time and date, etc.  When he talks to her NEVER yell or get involved in arguments. Hard but a must do. I HIGHLY SUGGEST a neutral pick up/drop off point (a POLICE station works GREAT!). YOU or another friend/witness should be present at each exchange. If she acts up, video tape if necessary (I have never had to do this). If you plan on recording conversations, check the laws for your state.

DO NOT allow BM to dictate rules that the two of you are supposed to follow that are not in the order. She will try to drive you away and drive a wedge in between you and the child. Don't allow it.

Make the time you two have with the child as "normal"  as possible with normal household routine, etc. NOT a party time where the kid gets everything he asks for. You probably know all this but you won't believe how easy it is for some non-custodial parents to get sucked in to this role when they feel guilty over the relationship they have with the child.

DOCUMENT, DOCUMENT, DOCUMENT!!! Logs are legal records. If you keep them for years, keep them for  years they are submissable.

If this kid is in school yet, this moving around is highly unstable and IMHO a cause for change in custody. YOU have to be ready to be the mom of the family if that happens, but remember, you will always be the step-mom and it is a hard place to be. There is a good website. I don't know the address but I've seen it before, SMOMS. Good support for the women who love us non-custodial Dads who love our kids.

In the least, you may be able to file a motion to ask the court to enforce the order.

This is not legal advice, just my opinion.

I HIGHLY recommend posting on the Dear Socrateaser board (he's on vacation I believe this week! - Read the guidelines and post your questions to him. He is a valuable source of information and right on the money.

I wish the best for your future SS, husband, yourself and your budding family. You will need to gain your strength from within so make your foundations solid.  

[Lp54]

Thanks for the advice. He does not have an attorney, so that is why we try to be very careful on the steps we are making. He is not sure if serving her viacertified mail counts as officially served, but he is going to do that.

We never thought about calling the Clerks office and asking wether or not a copy of the order was sent to her (so obvious). We just assumed that the the filing party was responsible of forwarding that information to BM.

We are in California by the way. You know our only concern is that even if BF files for another "motion to modify custody" it won't be enforced. So far this is his second "modified custody order" and the problem is that BM  could care less and does not follow the courts order.

The police got involve this last time and BF filed a police report to keep it documented the officer actually spoke to her on the phone and BM said that she was not able to take him to see him because she was waiting for a package and then she just never showed up. If its not one excuse its another. When he calls to speak to his son she always says NO!

The neutral drop off point is my BF's moms house.The Police report just states the officers conversation and the fact that she never showed up.

She took him out of pre-school just so that he would not be able to pick him up from school. I don't know how her older kids can be stable if she keeps moving from city to city, pulling her kids in and out of school.

Anyways, I appreciate your suggestions. Thanks for the SMOMS website.

[notnew]

He doesn't have to have an attorney if he can't afford one. He just has to make sure he follows the rules. They are spelled out and easy to find on court websites, here, state judiciary websites, lexis-nexis. etc.

Since it is the 2nd modification and she continues to fail to adhere to the orders and she has pulled the child out of school, maybe he should consider filing for a change in custody.

In the least, he needs to file for contempt and request jail time for the mother if she doesn't comply. Make sure he asks that she pay all court costs and if he hires an attorney, to pay for those fees as well. If you represent yourself, you cannot ask for attorney fees.

She sounds like her elevator doesn't go all the way to the top. Too many of them out there anymore (both men and women). Once someone with an evil mind finds they can manipulate the system to exact revenge, they maximize the ability. Too bad they can't see the damage they are doing to these children. I forsee trouble for these generations of children ahead.

I was just in the court a while ago getting things filed in the clerks office for my own case and there was  woman (lawyers secretary I got the impression) in there trying to get a summons issued for denial of summer visitation for a client. Here it is already July. Whoever is waging this battle most likely won't spend one minute with their child this summer. It is for this reason, that I always encourage people who are being denied access to file asap. Court takes a long time to process things and schedule dates. They have multiple hearings before you actually get to the trial part (this is set up to encourage settlement). Those of us who end up resorting to sites like these most likely are litigating against a person who is not interested in settling at all so the trial is inevitable. The more time that goes by, the more relationships with children are damaged. The system is seriously broken and I don't see light at the end of the tunnel as far as family law goes.

Sorry to get off on a rant. It is just depressing. I have been to the court so much, I recognize people who work there and lawyers in the hall and they recognize me! Doing it yourself is hard but it will be helpful for your BF to have your help and support.

Please urge him to take action and not wait. No child deserves to be left behind by a parent no matter how frustrated that parent is.

[notnew]

a Motion to Modify Custody means  your BF is asking the court to transfer custody of the child from BM to him. If they transfer custody and she doesn't turn over the kid, then she is guilty of a more serious offense.

I am trying to tell you that you MUST do your research. Don't assume anything. The court system is very specific and not always logical. At your circuit court, there should be an office to assist pro-se (self-represented) litigants.

He needs to move on this quickly. The longer he waits before he takes action the worse it will look on him. If he doesn't object to her actions and fails to follow up, it will appear that he really wasn't concerned about seeing his child - get my drift?

Good luck and get busy!