Who's in contempt?

[janM]

My son's ex-girlfriend agreed to give my son custody of their son in 2002. To make this clearer, here is the bulk of the Findings of Magistrate:

1. ZZ, counsel for BM, failed to appear by 9:30 a.m. on February 15, 2002.
2. The parties agreed that Dad should be made residential parent of the the child, XX.
3. The parties agreed there should be no Support Order.
4. The parties agreed that Dad should install a fence to prevent unsupervised access to the swimming pool by XX.
5. The parties agreed that BM should have visitation with the child similar to Local Rule (x) of the xxxx Juvenile Court.
6. The parties will submit an agreed entry within 14 days to address all of the above matters.

Order of Magistrate
1. The agreed entry as submitted by the parties is to be made the order of the court.
The rest is not important. It is signed by the magistrate.

Son's lawyer never did write up an agreed order, so nothing was signed. My son has had physical custody ever since.

I mentioned all this because my son filed to receive CS in January. She has not paid nor contacted CSEA nor provided doctors' excuses. A contempt hearing was held today where she was assigned a public defender and signed a bond. There will be another hearing.

We are on good terms with her right now, and in the hall she said she had spoken to another PD or someone who told her that CSEA should have held a hearing with the parties present, because of the "no support" part of the decision, rather than just make it a court order. And that custody should be reviewed every 2 years (I think that is hooey), and that my son could be held in contempt for not constructing the fence around the aboveground pool.
(I should mention that he and the boy have lived with us since he got custody, it is mine and his father's house...mag. asked me in court if I agreed that one should be built. I said yes, because I wanted the boy with my son. My husband should have been the one to agree because he would have had to build it or have it built.)

My questions are:
1. Could the fence issue be included in the support hearing? Because it was part of the original order (same case number)? Or would she have to file separately for that? She has not been worried about it for nearly 3 years. It is actually CSEA that is charging her with contempt.

2. If she did file contempt for the fence thing, would the fact that there was never an agreed order signed, make that aspect null and void? And would my son be in contempt for not erecting a fence on someone else's property? Would I actually be in contempt for agreeing to it, and not doing it? I don't feel that she'll make an issue of it unless her PD does...or unless she gets PO'd at my son...

Thanks in advance.

ps...if you want a chuckle..
The summons had listed BM as the plaintiff because she filed the original motion to change custody to my son. The magistrate could not have read the papers very well because he started to ask my son if he had consulted an attorney on the matter. My son didn't even have to be there. Lawyer for CSEA piped up and said, "Your Honor, BM is being held in contempt.."
The dad must be the deadbeat, right? LOL!

[socrateaser]

>My questions are:
>1. Could the fence issue be included in the support hearing?
>Because it was part of the original order (same case number)?
>Or would she have to file separately for that? She has not
>been worried about it for nearly 3 years. It is actually CSEA
>that is charging her with contempt.

If it were a support hearing, then no, but if it's a contempt hearing then yes, but only if there is an order mandating that a fence be built, and from your presentation of facts, there is no order, therefore no judicially mandated obligation to build the fence.

There may, however, be a CONTRACTUAL obligation to build the fence, because the parties agreed that it should be done, but this would be a matter for a civil court, not a matter for a contempt hearing.

The fundamental requirement for contempt is that there is a valid and enforceable order, and on your facts, no such order exists, therefore no contempt, for EITHER party (unless there is a separate support order in existence, then that order could be violated, but your facts don't show this to be true or false).

>
>2. If she did file contempt for the fence thing, would the
>fact that there was never an agreed order signed, make that
>aspect null and void? And would my son be in contempt for not
>erecting a fence on someone else's property? Would I actually
>be in contempt for agreeing to it, and not doing it? I don't
>feel that she'll make an issue of it unless her PD does...or
>unless she gets PO'd at my son...

See #1.