Admissable evidence ?

[Tennessee Dad]

Background:  I WAS the NCP of a 6yo daughter.  As of Friday, I have temporary custody, and a TRO.  This is due to 3 fires at the Mother's hosue in the last week (house has been foreclosed, and she is being evicted.)  Judge agreed child is in danger!  Hearing is Friday morning.  

Now, questions:

1.  We have avoided taking Mother's phone calls during this time; should we let daughter talk to her Mom, or not?

2.  I have been told hearing Friday is basically a formality, unless she can prove it was done in error.  Correct?

3.  Now, the biggie:  BM has threatened to bring up all sorts of things from our past, regarding sexual situations, use of sex toys, etc.  Can this be brought up in court, or is it a non-issue?  I do not deny a highly charged sex life in our short marriage, but she was a willing participant.  Will the judge take any of this into consideration?  

4.  Mother is now in the process of moving in with her Mother and Step-Father.  We have a stable homelife, and have records to prove we have had daughter the majority of the time for the past 3 years.  What, in your opinion, are my chances of making me the permanent custodial parent?  

Thanks, in advance, for your advice!  I am really torn right now, and just want to be sure my daughter is safe!  

[socrateaser]

>1.  We have avoided taking Mother's phone calls during this
>time; should we let daughter talk to her Mom, or not?

Follow the TRO to the letter. If the orders are ambiguous, then you must act in the Child's best interests. Unless the mother is causing the child distress with her phone calls, then I would permit the conversation. I would record the conversations and inform the mother prior to each call of your intent to do so.

>2.  I have been told hearing Friday is basically a formality,
>unless she can prove it was done in error.  Correct?

She must appear and show cause why the child will not suffer irreperable harm if the TRO is dismissed. If she can show that the fires were a fluke, and that there is no reasonable likelihood of another, then the court must dismiss. If not, then the orders will likely stand.

>3.  Now, the biggie:  BM has threatened to bring up all sorts
>of things from our past, regarding sexual situations, use of
>sex toys, etc.  Can this be brought up in court, or is it a
>non-issue?  I do not deny a highly charged sex life in our
>short marriage, but she was a willing participant.  Will the
>judge take any of this into consideration?

Well, if I were you I would think carefully about whether you will "admit" a highly charged sex life under oath. Technically, this is all objectionable as irrelevant and immaterial, unless there is some reasonable likelihood of irreperable harm to the child, however, judges are very conservative, and there's no point in creating an opportunity for your opponent to exploit against you.

>4.  Mother is now in the process of moving in with her Mother
>and Step-Father.  We have a stable homelife, and have records
>to prove we have had daughter the majority of the time for the
>past 3 years.  What, in your opinion, are my chances of making
>me the permanent custodial parent?

You should move for a new custody hearing on grounds that all of the facts present a material change in circumstances affecting the child's best interests. More than likely the judge will agree. Then get ready to open your checkbook, cause it's gonna be spendy.

[Tennessee Dad]

"If she can show that the fires were a fluke, and that there is no reasonable likelihood of another, then the court must dismiss. If not, then the orders will likely stand."

Clarification:  just the TRO, or the full custody?  

The fires are still under investigation, and the fire investigator says at least two of the three were definitely set.  

And the move to for a permanent custody change has already been made, also, based on how much time we have daughter, and have her in a stable home situation.  

Thanks for your insight!  I am just (overly?) concerned.  

[socrateaser]

>"If she can show that the fires were a fluke, and that there
>is no reasonable likelihood of another, then the court must
>dismiss. If not, then the orders will likely stand."
>
>Clarification:  just the TRO, or the full custody?  

Just the restraining order.

I didn't realize that you had already moved for a new custody trial. If you are actually exercising substantially more parental responsibility than you were originally awarded, that would be a change in circumstances and provide grounds for a new hearing.

[Tennessee Dad]

THANK YOU!  

Your response has gone a long way to ease my mind!

[Tennessee Dad]

I finally have a copy of the Motion the Judge signed last Friday.  It is asking to change primary custody from Mother to Father, permanently, and terminating child support payments.  Stated is a material change in circumstances, we have the child at least 50% of the time, and continued custody with the Mother is unsafe.

Hearing is this Friday, 10:00 a.m.  THIS IS the big show!  

What do we expect, now?  

Thanks for your insight!

[socrateaser]

Depends on the response of the other party. Assuming that the judge is already disposed to modify custody in your favor, the mother must move for a custody eval or appointment of a guardian ad litem or some such thing.

If she doesn't then the court can certainly rule on the existing facts, however it's fairly rare that a  court would issue a final custody judgment in such a short time frame.

[Tennessee Dad]

BM has now called me and wants to settle this; she cannot get an attorney to take her case, and she doesn't want to go to court.  My attorney has told me to proceed with caution, but to talk to her and see what she has to say.  I'm planning on working on a proposal this weekend, then try to sit down and talk to her.  We had verbally agreed on split physical custody before, but now I want legal custody and no child support, which she will fight.

Any suggestions?

[VeronicaGia]

Maybe I'm missing something, and if I am I'm sure Soc will correct me.

Do you have a TRO on her?  Do you have a TRO on her on behalf of the child?

I'm concerned because you said you have a TRO and you are going to "try to sit down and talk to her" this weekend.  Personally, I wouldn't under any circumstances meet her personally or if you do, make it a public place.  I smell something fishy in her sudden willingness to work out an arrangment.

[Tennessee Dad]

I had a TRO in behalf of the child; the Judge allowed visitation with BM after hearing last Friday (2/27).  My attorney had advised me to proceed with caution, but let her talk and see what she has in mind.  I don't believe anything will ever come of it, because we both want custody.  And, yes, the fishy part is she wants to talk me out of going to court by letting me keep our daughter most of the time (off the record), and I continue to pay child support.  But after three years of this type arrangement, I am ready to make it legal.  

Her biggest defense:  I'm her Mother, I am supposed to have custody.  My defense:  I just want what is best for our child; I want her safe and stable.