MOTION TO RECONSIDER THE EMERGENCY PETITION TO REOPEN AND MODIFY FINAL ORDER REGARDING CHILD CUSTODY

[Samson2005]

Hi.

I am getting ready to submit this motion to the court. The judge told me to ride it out until june to see how it goes. I only have 30 days to ask for a reconsideration.

Following is a rough draft of the motion i am preparing to submit.

Any comments or friendly (unofficial) advice on this is welcome.

Thanks in advance!


MOTION TO RECONSIDER THE EMERGENCY PETITION TO REOPEN AND MODIFY FINAL ORDER REGARDING CHILD CUSTODY

On March XX, 2007, Defendant presented to the Court an EMERGENCY PETITION TO REOPEN AND MODIFY FINAL ORDER REGARDING CHILD CUSTODY. The purpose of the petition was to get specific dates and times of visitation.

PD #1, PD #2, PD #3, PD #4., have refused to enforce (720 ILCS 5/10 5.5) Sec. 10 5.5. "Unlawful visitation interference" because the visitation schedule of Date, XXXX, does not contain specific dates and times when visitation is to occur.

Each police department said that an Order stating "every other weekend with the defendant" or, "half of such holiday." is not specific enough for them to enforce 720 ILCS 5/10 5.5. Specifically, the PD #1 told me not bother them again unless I have an Order that is worded with specific dates and times.

The example of a specific schedule given to Defendant by the PD #1 that was said to be enforceable is, "Weekend number 37, when school dismisses for the weekend until 7pm the night before school resumes from that weekend will be with the defendant."

The Court Denied the Defendant's Petition.

The Court then heard Plaintiff ask to modify the Order so that transfers of the child will be on Fridays at 5pm and Sundays at 6pm at the Plaintiffs residence every other weekend. Plaintiff stated it is in the best interest of the child to be able to take her book bag home on Fridays.

The Court Granted Plaintiff's request.

The modification has created several problems.
1.   It is in the child's best interest that the 10 year old routine of her father meeting her at school not be interfered with.
2.   It is in the child's best interest that she has her book bag during visitation so that her father may help her with homework.
3.   It is in the child's best interest that the bi-weekly casual contact between her father and school staff is not interfered with.
4.   Father is not able to speak with the child's principal or teachers during Friday detentions.
5.   Father is not able to participate in his child's extracurricular activities.
6.   Visitation with the non custodial parent is unduly reduced by approximately 2 hours each weekend.
   a. In the absence of abuse, maximum involvement of both parents is in the best interest of the child.
7.   For the past 10 years when school dismisses early and/or is not in session on day(s) adjacent to father's weekend, those days were always spent with him. The modification, for no good reason, will not allow the child to spend another extended weekend with her father as has been the norm for 10 years.
8.   On days when school dismisses early and/or is not in session on days adjacent to father's weekend, the child will be home alone until after 5pm on Fridays and/or Mondays.
9.   Plaintiff is usually not home until after 5pm because of her work schedule.
10.            Traveling after 5pm on Fridays cause the child to be transported in rush hour traffic and after dark during the winter.
11.   The modification is a maneuver to further alienate the child.
12.   It will be easier for Plaintiff to conceal the child from visitation.
13.    Before the modification, the child stopped at home after school anyway.

WHEREFORE, Defendant prays that this Court:
1.   Reverse the modification to the Custody Order of Date, xxxx made on March xx, 2007.
2.   Put into effect the specific visitation schedule proposed in the Emergency Petition to Reopen and Modify Final Order Regarding Child Custody.

[Davy]

Good job and the very best to you and your child.

Just some considerations.  I am an honest man with integrity so I'm not an attorney.

A statement that says in effect the modification has no positive effect on or benefit to the child namely xxxxxx x. xxxxx.  Right before/after the statement that begins with ... purpose of the petition was...  In presentation you will be able to bullet point to the judge.   Also consider a statement  ... the modification in unworkable for the child and both parents.

For readiability and in consideration of the judge think about indentation on points that overflow to the next line. For the same reason think about double spacing between numbered points.

As a pro se' litigant (or w/counsel) you may want to be prepared for a flat-out denial of this motion without comment from the bench so be cool .... heads prevail.
 
Just a heads up.  It is good you're documenting the actions of law enforment but I must say it is not their job to interpret the specifics of a court order ... that happens after jail time / posting bond by a court of law.  As you probably know (unless something has changed in IL) that seldom (if ever) does law enforcement enforce these statues.  Several years ago a poster reported an inquiry to IL AG (?Madigan?) that "the AG's office does not enforce that statue".  Have you physically interviewed your local SA ??  Try to establish a working relationship with your SA if possible.

AGAIN ..Good job and the very best to you and your child.

[Samson2005]

Thank you!

I agree that some of the formatting needs to be addressed, but am not completely clear on how.

I believe I read that you have heard that the unlawful visitation inteferrence statute has not been enforced in illinois for quite a few years. That is not encouraging. I wonder why the legislature does not strike it from the books if it is not enforced.

Thank you for the "heads up" I am expecting the worst after filing the Petition to Enforce Visitation, Petition for Specific Visitation, and Petition to Modify Visitation.

So far all we have managed to get done is a reduction in time spent between me (the NCP) and our child, and a warning to the CP that she needs to obey the visitation order or else she will be warned again, similar to the previous 8 written warnings already.

Thanks again for the well wishes, and I will try to figure out the formatting :)

Any other comments or advise is always welcome!

[MixedBag]

A motion to reconsider based on my personal experience through EX#3, means "Judge, take the current facts given to you and reconsider what you decided."

EX#3's attorney did that after a decision as well, before appealing the entire decision to the next level.  I wasn't in the courtroom, and don't have EX#3's file's anymore (because he is an EX  now), so I can't remember if his attorney quoted any cases that set a precedent in the other direction in court before quoting them in his "Motion for Reconsideration".

Based on past experience again, some of your reasons above, I can throw holes into.....for example  you said:

3. It is in the child's best interest that the bi-weekly casual contact between her father and school staff is not interfered with.

Your ability or right to contact the school staff is not being interfered with.  You still have that ability.  No one has said that you can't contact the school.  It just won't be done in conjunction with picking up your child from the school.

4. Father is not able to speak with the child's principal or teachers during Friday detentions.

Says WHO?  Of course you still can.

5. Father is not able to participate in his child's extracurricular activities.

Again, Says WHO?  Of course you still can.

6. Visitation with the non custodial parent is unduly reduced by approximately 2 hours each weekend.
a. In the absence of abuse, maximum involvement of both parents is in the best interest of the child.

Says WHO?  Did you bring any witnesses/expert to the courtroom that supports this statement?  (Now don't come back and clobber me on that feedback, it was the SAME mistake I made when I went back to court asking for custody or in the alternative more time.  I didn't bring a witness to testify as an expert that would support that statement.)

7. For the past 10 years when school dismisses early and/or is not in session on day(s) adjacent to father's weekend, those days were always spent with him. The modification, for no good reason, will not allow the child to spend another extended weekend with her father as has been the norm for 10 years.

So, here's a chance to quote a case that has said this is the way to go since she allowed it for 10 years.  OR this is the perfect example of where the child has lost time with dad because time now got defined.  It doesn't mean that the child can't still GO with you when stuff like this happens.  It does mean that unless you totally suck up to her, the weekends have been defined.....and she can still use the child as a pawn because YOU want time above and beyond the order.

8. On days when school dismisses early and/or is not in session on days adjacent to father's weekend, the child will be home alone until after 5pm on Fridays and/or Mondays.

And your point is?   How is this harmful to the child?  And what expert witness will testify to this?  

I'm gonna stop....because IF you're still reading this far, you're probably pretty pi$$ed at me.  I'm am trying to open your eyes to the "Motion for Reconsideration" that you wrote based on my personal experience on how things get so turned around on you.

I know you're truly focused on what's best for your child.  Really, I know that.  

I am not an attorney, and I don't have the original motion in front of me to advise to do this or do that.

But I am a parent, I have worn all hats (don't no more, but I have).  I have seen the court in a few states in action.

Not sure you're gonna get anywhere with THIS particular motion you wrote up. (IMHO)

[Samson2005]

MB,

Mom had no expert witness to say it is in the child's best interest to lose all that time with her father so that she can drop her book bag at home.

I am literally counting hours of time each month with my daughter here. Taking two off really hurts. By the time we got to my town last week, the places we usually go to were closed.

Losing every extended weekend really hurts.

This is moving in the opposite direction of maximum involvement which is in the child's best interest according to statute.

Why do I need an expert witness to testify that the statute says: in the absence of abuse there is a presumption that maximum involvement is in the best interest?

Because of the distance from here to there, the only time i have been able to go to the school to see teachers, principle, practices...etc.. was when I picked her up on fridays.

Do you think a judge would consider it is unreasonable for me to see her teacher then sit in my car for 2 hours in a parking lot waiting for 5pm to arrive so that she can have her book bag at home? Good Grief!

[mistoffolees]

>MB,
>
>Mom had no expert witness to say it is in the child's best
>interest to lose all that time with her father so that she can
>drop her book bag at home.

I think that's the point. She's gotten away with something, but don't think that you will. You need an expert witness on your side. The judge probably messed up by giving her what she asked, but don't count on him messing up again. You have to PROVE everything you claim - including experts.

>
>I am literally counting hours of time each month with my
>daughter here. Taking two off really hurts. By the time we got
>to my town last week, the places we usually go to were closed.
>
>
>Losing every extended weekend really hurts.
>
>This is moving in the opposite direction of maximum
>involvement which is in the child's best interest according to
>statute.

That's probably not going to be sufficient. The judge ignored it once - how can you PROVE that it's in the child's best interest?

>
>Why do I need an expert witness to testify that the statute
>says: in the absence of abuse there is a presumption that
>maximum involvement is in the best interest?

Because 'maximum involvement' is a meaningless phrase. In fact, it's so meaningless that judges ignore it. Further, did you have a copy of the statute with you and court cases as to how it's been interpreted? Unless you did those things, it's not surprising that the judge ignored it.

>
>Because of the distance from here to there, the only time i
>have been able to go to the school to see teachers, principle,
>practices...etc.. was when I picked her up on fridays.

That may be so. It doesn't mean that you can't continue to do so.

>
>Do you think a judge would consider it is unreasonable for me
>to see her teacher then sit in my car for 2 hours in a parking
>lot waiting for 5pm to arrive so that she can have her book
>bag at home? Good Grief!

It doesn't matter whether it's reasonable or not. You have to prove that it's in the child's best interest for you to get what you want. Your own inconvenience is irrelevant.

The bottom line is that I doubt if anyone here thinks you're being unreasonable. But you have to convince the judge, not us. And that means following the rules of evidence and proving every point you make. If you make a statement and can't prove it, you lose. I don't care if you simply state that the sun often shines at noon. If you can't prove it, you lose.

And it seems like that's even more important in this case. For whatever reason, it looks like your ex has gotten the judge's ear (or you've pi##ed the judge off somehow). Since none of us was at your original hearing, we don't know what happened. But it IS clear that you have an uphill battle and that means you have to follow the court rules on evidence and proof as fully as you can if you want to win this. Don't even try to make a statement unless you can prove it.

[Samson2005]

>A motion to reconsider based on my personal experience
>through EX#3, means "Judge, take the current facts given to
>you and reconsider what you decided."
>
>EX#3's attorney did that after a decision as well, before
>appealing the entire decision to the next level.  I wasn't in
>the courtroom, and don't have EX#3's file's anymore (because
>he is an EX  now), so I can't remember if his attorney quoted
>any cases that set a precedent in the other direction in court
>before quoting them in his "Motion for Reconsideration".
>
>Based on past experience again, some of your reasons above, I
>can throw holes into.....for example  you said:

Is it the judges role to shoot holes into peoples lives, or to ensure maximum involvement of both parents with their children according to the statute?

>
>3. It is in the child's best interest that the bi-weekly
>casual contact between her father and school staff is not
>interfered with.
>
>Your ability or right to contact the school staff is not being
>interfered with.  You still have that ability.  No one has
>said that you can't contact the school.  It just won't be done
>in conjunction with picking up your child from the school.

Because of the distance, it is very inconvenient to have casual contact with any of the staff at her school. (you would agree unless you enjoy sitting in a parking lot for 2 hours for a 5 minute chat with a teacher)
Throughout the years, I have come to know every single teacher in that school. I am sure they will think of our time being minimized as a loss as well.


>4. Father is not able to speak with the child's principal or
>teachers during Friday detentions.
>
>Says WHO?  Of course you still can.

Information about school is not shared with me. I never knew if there was a detention until I got there and she was being held. Now, I will never know.


>5. Father is not able to participate in his child's
>extracurricular activities.
>
>Again, Says WHO?  Of course you still can.


Again, distance makes it expensive and very inconvenient. I will still go to games, but helping with practice on Fridays seems to be over with.


>6. Visitation with the non custodial parent is unduly reduced
>by approximately 2 hours each weekend.
>a. In the absence of abuse, maximum involvement of both
>parents is in the best interest of the child.
>
>Says WHO?  Did you bring any witnesses/expert to the courtroom
>that supports this statement?  (Now don't come back and
>clobber me on that feedback, it was the SAME mistake I made
>when I went back to court asking for custody or in the
>alternative more time.  I didn't bring a witness to testify as
>an expert that would support that statement.)

The statute says it.

>7. For the past 10 years when school dismisses early and/or is
>not in session on day(s) adjacent to father's weekend, those
>days were always spent with him. The modification, for no good
>reason, will not allow the child to spend another extended
>weekend with her father as has been the norm for 10 years.
>
>So, here's a chance to quote a case that has said this is the
>way to go since she allowed it for 10 years.  OR this is the
>perfect example of where the child has lost time with dad
>because time now got defined.  It doesn't mean that the child
>can't still GO with you when stuff like this happens.  It does
>mean that unless you totally suck up to her, the weekends have
>been defined.....and she can still use the child as a pawn
>because YOU want time above and beyond the order.

Is there a thing called "status quo" for NCP?


>8. On days when school dismisses early and/or is not in
>session on days adjacent to father's weekend, the child will
>be home alone until after 5pm on Fridays and/or Mondays.
>
>And your point is?   How is this harmful to the child?  And
>what expert witness will testify to this?  

the best interest of the child is Maximum involvement... this is moving in the opposite direction of the statute for no good reason.

>I'm gonna stop....because IF you're still reading this far,
>you're probably pretty pi$$ed at me.  I'm am trying to open
>your eyes to the "Motion for Reconsideration" that you wrote
>based on my personal experience on how things get so turned
>around on you.
>
>I know you're truly focused on what's best for your child.
>Really, I know that.  
>
>I am not an attorney, and I don't have the original motion in
>front of me to advise to do this or do that.
>
>But I am a parent, I have worn all hats (don't no more, but I
>have).  I have seen the court in a few states in action.
>
>Not sure you're gonna get anywhere with THIS particular motion
>you wrote up. (IMHO)
>
>
>
>
>

[Samson2005]

I answered MB twice. I was hoping to delete the first one before it was read.... oh well..

It is good to get the input of people with experience. I guess what is morally right is not always legally right.

What kind of an expert would I need to tell the court that it is better for the child to be with me rather than home alone? Especially when we are together apprx 4 days/mo?

Is common sense never enough?

I could tell that the decision maker there realized a pretty huge mistake. He told me to ride it out till june to see how it goes.... I am afraid that if I wait till june I will be told it is too late to have the decision reconsidered (30 days will have passed)

[mistoffolees]

>I answered MB twice. I was hoping to delete the first one
>before it was read.... oh well..
>
>It is good to get the input of people with experience. I guess
>what is morally right is not always legally right.
>
>What kind of an expert would I need to tell the court that it
>is better for the child to be with me rather than home alone?
>Especially when we are together apprx 4 days/mo?

You have two options:
1. Bring a copy of the statute to court, along with court rulings that interpret the statute and clarify what 'maximum access' means.
2. Have the child evaluated by a psychologist who would then be in a position to testify as to the benefits to the child.

I guess you could aslo ask for a custody evaluation which might result in the same thing. Of course, that's unpredictable.

>
>Is common sense never enough?

Nope. At least not until it becomes universal.

You have to prove your point. You can't rely on someone accepting it as common sense - particularly since your ex is going to claim that HER side is common sense.

>
>I could tell that the decision maker there realized a pretty
>huge mistake. He told me to ride it out till june to see how
>it goes.... I am afraid that if I wait till june I will be
>told it is too late to have the decision reconsidered (30 days
>will have passed)

I'm not following the details, but if the judge told you to ride it out for 30 days, you're going to have an even harder time proving your case. Judges have biases just like anyone and you're starting out by disagreeing with him. You need to prove your argument beyond ANY doubt in order to convince him to change his mind.

I think I said this before, but this is not the type of thing that I'd recommend doing on your own. An attorney is likely to do better.

[Samson2005]

>>
>>I could tell that the decision maker there realized a pretty
>>huge mistake. He told me to ride it out till june to see how
>>it goes.... I am afraid that if I wait till june I will be
>>told it is too late to have the decision reconsidered (30
>days
>>will have passed)
>
>I'm not following the details, but if the judge told you to
>ride it out for 30 days, you're going to have an even harder
>time proving your case. Judges have biases just like anyone
>and you're starting out by disagreeing with him. You need to
>prove your argument beyond ANY doubt in order to convince him
>to change his mind.
>
>I think I said this before, but this is not the type of thing
>that I'd recommend doing on your own. An attorney is likely to
>do better.
>

If I wait until june, it will be over 60 days since the decision. i only have 30 to file for reconsideration.