Need Everyone's opinion of this petition :)

[Samson2005]

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


On March 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 obtain specific dates and times of visitation because Plaintiff abuses visitation and the *** Police Department and others refuse to enforce (720 ILCS 5/10 5.5) "Unlawful visitation interference" because the wording of the order is vague.

The police dept said they will continue to not enforce the law until the order contains specific dates and times. Officer **** gave Defendant an example of a specific schedule that he said would be enforceable.

Defendant prepared and presented a schedule in the March 2007 Petition to the Court that was said to be enforceable. The Court Denied the Petition.

Plaintiff, by oral motion, requested to reopen and modify the Final Order so that transfers would occur every other Friday at 5pm and Sundays at 6pm at her residence. The Court Granted Plaintiff's request.

Plaintiff then became successful to restrict Defendant and Child's Easter vacation to half of what was a 10 year status quo where Child was with her father all of Easter vacation and attended church to hear her grandfather's Easter service.

When Plaintiff realized that the Court was ruling in her favor, she requested the pickup time to be changed to every third Saturday. The Court denied that request.

A very important issue in this case is the chronic alienating and contumacious behavior of Plaintiff toward Defendant and Child.
"Contumacious conduct consists of "conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court." In re Marriage of Fuesting, 228 Ill. App. 3d 339, 349 (1992).

Plaintiff's requests to further restrict visitation made on March 2007 were unreasonable because:
1.   She is usually not home until after 5pm because of her work schedule.
2.   Before the modification, Defendant always allowed Child to stop at home after school anyway.
3.   The requests to further restrict visitation were one of many maneuvers to further alienate Defendant from Child made by Plaintiff over the years.
4.   It will be easier for Plaintiff to abuse visitation by concealing Child because Child will be alone at the residence for almost 2 hours after school. The abuse normally recurs when all pending court cases are concluded.
5.   Plaintiff regularly uses the transfers of Child at her residence to encounter and vent anger at Defendant in the presence of Child.
6.   Restricting visitation without proving that the current visitation is harmful violates Illinois statutes and case law.

"Where the proceeding is by a custodial parent to restrict or deny visitation, the burden is upon the custodial parent to prove by a preponderance of the evidence that the visitation then provided endangers the welfare of the children." Griffiths v. Griffiths, 127 Ill. App. 3d 126, 129, 468 N.E.2d 482, 485, 82 Ill. Dec. 220 (1984). "...the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health.  750 ILCS 5/607(c) (West 1994). "The endangerment standard is an extraordinary finding (In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 724, 558 N.E.2d 388) that is onerous, stringent, and rigorous." (In re Marriage of Diehl (1991), 221 Ill. App. 3d 410, 429, 582 N.E.2d 281; Ashby, 193 Ill. App. 3d at 378, 549 N.E.2d 923; In re Marriage of Blanchard (1987), 162 Ill. App. 3d 202, 207, 514 N.E.2d 1208.) "It is more stringent than the best interests standard, which is used to determine custody." In re Marriage of Woppel (1989), 178 Ill. App. 3d 781, 784, 533 N.E.2d 1002.

"...we note that our courts have always recognized that it is in the best interest of the children to maintain a healthy and close relationship with both parents, as well as other family members.  Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045. For this reason, we must carefully consider the visitation rights of the noncustodial parent.  Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045. Towards this end, it is also vital that trial courts be guided by the stated purpose of the Act to "secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation." (Emphasis added.) 750 ILCS 5/102(7)(West 1994); see also Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.

Plaintiff has not obeyed the Order to have Child ready to travel at 5pm, also Plaintiff was ordered to remain inside the house until Defendant was gone.

1.   Child is chronically late to leave. Usually from 15 to 45 minutes.
2.   Plaintiff approaches Defendant inside his car to vent anger and express redundant and harsh demands about her visitation requirements while under the 2007 admonishment of the Court to remain indoors during transfers.
3.   Plaintiff otherwise involves herself by approaching Defendant's car to stare at Defendant and Child until they leave or Child exits the car.
4.   Plaintiff arranged a part time job for Child on weekends. She had Child call Defendant to ask him if she could work instead of attend visitation.

"The appellate court affirmed. Noting that "ultimate responsibility" for compliance with the visitation order rests with the custodial parent, the appellate court held that the mother "cannot escape her duty to comply with the provisions of the decree by attempting to shift this burden to the discretion of her children or some other person..." Doggett, 51 Ill. App. 3d at 872.

On March 2007 the Court warned Plaintiff that if she did not strictly abide by the Order, the result would be for Defendant and Child to have 2 extra weeks of visitation together.

The modification has interfered with the 10 year status quo by:
1.   Restricting visitation by at least approximately 2 hours each weekend.
2.   Restricting visitation by not allowing for extended weekends. When school dismisses early and/or is not in session on days adjacent to visitation weekends, or not attended due to illness, that time was always added to visitation weekends.
3.   Restricting Defendant by inconvenience from participating in Child's schooling and extracurricular activities from the extent of previous involvement.
4.   Arriving in *************** 2 hours later (6-6:30pm) than usual greatly interferes with normal routine activities, i.e. suppertime, leisure time, homework time, bedtime.
5.   Transfers at Plaintiff's residence opposed to school have allowed Plaintiff to create stress at the beginning of visitation weekends for Defendant and Child. Child is always much more nervous and tense than she was when Defendant picked her up at school.

"The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health." Ill. Rev. Stat.1983, ch. 40, par. 607(c). "...and before restricting a parent's visitation privileges, the trial court must find that the visitation would seriously endanger the child's physical, mental, moral, or emotional health" (Ill. Rev. Stat. 1989, ch. 40, par. 607(c)). "Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986 [750 ILCS 60/103], the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child..." 750 ILCS 5/602. Best Interest of Child.

WHEREFORE, Defendant prays that this Court:
1.   Reverse the modification to the Custody Order of 1996 made on March 2007.
2.   Put into effect the specific visitation schedule proposed in the March 2007 Emergency Petition.
3.   Order Plaintiff to obey the visitation order.
4.   Order Plaintiff to not create or encourage activities that interfere with visitation.

[Samson2005]

Even though we are scheduled to have a hearing on visitation abuse next week, the Plaintiff (Mom) has denied the first week of visitation that was ro start today.

I guess she feels that the Court is impotent to enforce visitation or that the judge will rule in her favor no matter what she does.

[FLMom]

. . or, this may just be the one time that this comes back to bite her in the butt.

. . or, this just may be the one case that becomes case law to help others that come long after your child has reached the age of maturity.

I applaud your fight. All we can do is keep pushing forward, hoping that our trials (no pun intended) and tribulations provide groundwork for the next parent that comes along wanting nothing more than a meaningful relationship with their child.

Keep us updated. Thinking good thoughts for you. . .

FLMom

[Samson2005]

I thank you for your supportive words :)

There is already so much case law and many Statutes concerning these situations that it should be a no brainer!

It is amazing that so many similar situations result in decisions that do not agree with the statutes and case law.

I appreciate your well wishes!

Thank you!

[MixedBag]

good luck!

[MixedBag]

good luck!