Legal advice please

[brodrzy]

My husband is representing himself pro se to enforce his visitation. His ex is unbelievable and the courts basically facilitate her behavior. It's a long story but after a year of harrassment by her, I had to get an order of protection, her criminal case is still pending. She was bucking visitation all along, but is now using the fact that I pressed charges as a reason to hinder visitation. His
daughter is 15 years old, and allegedly writes emails saying that she will only see her Dad outside the house, and not in my presence. That means no overnights which, BM did'nt want anyway. My question, we have several emails, police records, and personal affidavits for evidence. We want to present them, but not tip our hand right away. Since we will be up against
her expensive lawyer, we don't want  them thrown out. Do I file these affidavits with the court papers? How do I label the evidence? Just a, b, c?
Any quick refernces for do it yourself lawyering? Can we insist that the Mom get a psychiatric evaluation? Also, she cut off all phone contact with my husband, gave the daughter a cell phone but dh can't have the number. Who's paying for it? Dh's support! Also, she convinced the counseler to just counsel
our sd, and exclude us. That is against the court order. What contempt sanctions can we ask for and do we ask for  them with the visitation violation order ? Like extra time, judgment, reversal of custody etc. If no sanctions are put upon her she is just going to do it again. We live in NYS  Please help. Thanks BD.

[dsm]

The main questions need to be answered by your motion.

Your motion is to enforce visitation.  Therefore, that is what your focus needs to be.  Your motion should state something to the effect of

"Said child was to be with father on dates X, Y, Z however BM refused to produce the child"

What proof do you have for this happening?   What are you looking for in fixing this?   Let her bring out her defense that she is refusing to send the child because you pressed harassment charges on her - that is a separate case and you are not a party in this one - it is between her and your DH. (one of the few niceties of being a stepparent!)

"Said child is under the care of Dr. X.   There are no court orders barring DH from records or participating in her treatment, however BM is denying access or information."  Again, what proof do you have of this?  Request that you are included on the treatment, informed of appointments, and given the opportunity to discuss the treatment with Dr. X on your own.   Do you have proof that BM requested the doctor counsel your SD without your inclusion or is that your assumption?

"DH has no phone number for being able to contact child."  Request for the number to be given and notice of change within 24 hours of it happening.  (this should be a no-brainer for the judge)

Basically, in your motion you should state your issues bullet by bullet.  It is my understanding that you present the facts at the motion hearing - but it may be different in NYS.   Have you posted to Socrateaser yet on this?

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dsm - 34
DH - 38
SD - 15
LO - 9
BB - 2
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2 Cheap Entertainment cats - Snoop & Dagger - 5 years and counting.....

[brodrzy]

The proof of withheld visitation is matter of records from the police, and alleged emails from the 15 teen year old child,

The proof of telephone contact interference, is a matter of record from the police when he had them call her,as he couldn't get through, and then the bm came into the police station and started cussing them out, saying that dh tricked our sd, into talking to him. Sd told dh that she wasn't allowed to give the number to him.

The counseling proof is emails from said child and the admission from the counselor that the bm refused to bring her. We have an audiotape/voicemail that the bm left, that makes it clear that she grills our sd after counseling sessions, "Dh you are a bold face liar, you lied to the couselor  etc, "
We also have Im conversations between the mother and child, but they are through the our interent safety program, and not admissible. We also have police records from when she called me, and then several people saw her take her child off the softball field during my husbands visitation.

Also, the stepfather comes out to the car and screams at dh during pick up times, so we want to pick her up at school. So I file these affidavits and evidence when I file the motion papers? Thanks BD

[dsm]

Your motion is to state the issues.  You bring the evidence with you to the court date and present there.   But again, that is my understanding of how it works here - the clerk of court may be able to help you with that as how the procedure reads for your local court proceedings.

I'd question the admissability of the IM records....if they are from your computer, then argue that they are your records - chatting on a public internet service is not private conversation.  Again, check it out.  And the worst that will happen is the judge will tell you that you cannot present that as evidence.  But you still make your motion that such and such is happening.

Have you considered running your motion and paperwork past a lawyer to dot all your i's and cross your t's?   We went pro se for most of our fight and had a good lawyer lined up to review paperwork.

Most definitely you will want to have a lawyer review any agreement or settlement papers that BM's lawyer will try to throw your way - request for time to review and answer - never give an 'on the spot' answer for something like this.

Good luck!
==============================================================================

dsm - 34
DH - 38
SD - 15
LO - 9
BB - 2
------------------
2 Cheap Entertainment cats - Snoop & Dagger - 5 years and counting.....

[brodrzy]

Thanks, I do have a friend of a friend to check it. We will see how it goes. BD

[snapplegirl69]

My DF used the nasty emails BM sent him when he brought her to court and they helped

[mc24]

This site is actually for Florida, but may be of some help to you.  You could also search for similar sites for NY - maybe getting some clues from this one.  I think the "General Information for Self Represented Litigants" is pretty informative.  It's the first form you come to as you scroll down the page.  

http://www.flcourts.org/gen_public/family/forms_rules/index.shtml

Hope this helps!  Good luck to you!

[MixedBag]

It's not as easy as it seems (or should be) sometimes....

And Dad is pro se right?

You'll have to get the police officer who witnessed the incident to testify in court that it happened.

You'll have to "exchange evidence" that is to be presented within a certain period of time (based on your state's family court rules) BEFORE the hearing.

You'll have to notify the other party of the witnesses you plan on having appear BEFORE court..

In other words -- in theory, it might seem simple, easy peasy, how ever you want to put it.  

Reality kicks in, and sometimes kicks your rear end due to the proper rules of engagement in court.

It's almost impossible for anyone here to tell you exactly what must be done and how to do it because we are not attorneys and we are all from different states.

But the bottom line is that you gotta take her to court, period.

[brodrzy]

If we are able to prove contempt, Can they impose fines on her ? To the court or a deduction from the child support?

[gipsy]

Its been my expierience That the court is there to hear the issue for the motion filed , And thats it ! , My psycho ex told the court all kinds of crap , and the commissioner basically told her we are her for the motion filed etc , And the commissioner didn't really respond to the rest of the crap she told him untill she went on and on . And Commissioner then said , " Thats enough" ! . And the ONE issue was addressed , I would call a bunch of attys and try to gather info , primarily You really need legal advise , There is a board called socrateaser on this site , He is an atty' . I have found that what I think is often not the answer , However I am reasonablty sure contempt is the only avenue for your situation ,
   I have also expierienced that the court gets confused about what the issue is when you bring too much info into it , Besides unless you have proof then its hearsay . So My two cents is keep it to the most proveable and verifyable facts that prove contempt . Also My atty say's don't expect the court to give you a contempt finding the first second or third time ,
 But My atty advises that the lesson in a contempt hearing is this , obviosly the mother has gone to the trouble to pay an atty , WEll Every time she is in contempt file . And make her pay again and again ,
  I would keep it simple , But one thing My atty said to the commissioner really sticks . but applies to your case in a different way ,
  ' He said " My client has to ask the court to order the visits " Because they will not occur while in the control of The mother "
  I thought this was relatively effective ,
 How it may fit you is to say to the court " My child tells me she wants to be with me " Apparently there is a different story while in the control of the mother " whom constantly interferes By ' doing XY and Z  then have your proof filed , But  I don't think flooding the court with all kinds of papers is effective , Because it happened too me more than once , that I don't think  the court  really read through massive papers . They said , " What does he want ?
 Also if she has hired a big bucks atty then It Is likely to be a blow hard for the big bucks . There fore I also say you really should go watch a few similar cases . or at least some family law cases at the court , You will see there isn't all that much too it , And just stay with the simple facts . And state the case ,  Its kind of wierd but while at court if you dissagree with some of what the other atty say's . You have to tell the court , Thats not what I want " I want My visits to take place " Or dissagree with paying her atty fee's , If the atty is a blowhard he will be asking for atty fee's . And although its onvious you have to sasy " NO atty fee's " The mother is the one causeing this action to have to take place and I want money awarded to me for taking the time off work to file this motion" the next thing may be the appointment of a Guardian ad litem ,  What ever the deal is don't think this one motion is a win lose situation , there are various reasons motions don;t go your way , next In pierce county you can get a CD recording of the hearing , And go home and listen to it , And Maybe learn how to make the next contempt stick a little better ,