Very Frustrated; Please Help

[chipmunk226]

My current custody order was issued in Philadelphia, Pennsylvania.  I currently reside in Hagerstown, Maryland. I am a 24 year old mom and I have a five year old son whom I have primary physical and legal custody of.  

I will try to keep as brief as possible, but without leaving out the important details of my situation.  As I am sure you know, custody is almost always long and drawn out and I am sure you have people tell you all the time that they could write a book about their story.  

Ok...here it goes.  My son was born in 1999 out of wedlock.  At that time, my son's father had a 5yr old daughter from a previous relationship (also out of wedlock). He was currently embroiled in a custody battle for her.

In February 2001 we started growing apart. The whole battle started when he picked my son up from my parents and changed the locks on me.  He told me the only way I would see my son is if a court made him.  So I filed for custody.

We first got a temp order where it was almost 50/50.  I had my son Thursday after daycare until I dropped him off Monday morning at day care.  

The final order came in May of 2002. At that time I was awarded primary physical and legal custody.  I was to have Monday after daycare until Friday morning.  His father had every weekend.

In May 2003 I got married.  My husband was in the military at the time and was stationed in Frederick, MD.  I filed for with the courts for permission to move.

 At the hearing the judge made it very clear that if "we" did not come to an agreement and made him go forth with a full hearing, we would not like his decision.  He gave us 3 hours.

On September 11th 2003, the courts awarded me permission to move to Maryland.  The visitation changed to his father having 2 weekends per month, his discretion.  He automatically had every "extended" weekend, for example Labor Day.  

He had the majority of winter break, every Thanksgiving, Spring break and every other birthday. He also has an extended summer visitation that starts the Sunday following the end of the school year the Sunday one week prior to the start of school.  

I am to provide 100% transportation because I have a car and he doesn't.  This new order was to begin as soon as I moved to Maryland.  

I move to Maryland in December 2003.  I took my son back to Philadelphia for all of his visits.  When it came down to the summer vacation portion, his father disagreed with the date that school ended.

When we were at court, I provided a school calendar for the county I was moving to as a template to show that their school calendar was different then the Philadelphia calendar.  The last day of school would have been June 2, 2004, providing not all the snow days were used.

However, once I moved here, I got a job in the next county over, Frederick County, and I enrolled him in school there.  The last day for them was June 16th.  I informed his father of the change in April.  He expressed that he was unhappy with it.

On May 28th, 2004 I took my son for his visit.  I was to pick him up on Monday, May 31st.  I called the night before to make arrangements with his father, and he said don't waste the trip because your not getting him back.  So I went to Philadelphia to try any way, and he still said no.

I called the police and made a report.  In Philadelphia, the cops will not get involved in a "civil" matter.  I went to Family Court the following day and filed for an emergency petition and for contempt.  The emergency was not granted because my son was in no medical danger.

I even asked what the point of issuing court orders that they were not going to enforce.  All I got were blank stares.

I retained a lawyer that day, and he tried to get a "pick up" order so that we could have my order enforced, but that was also denied.  He then suggested that I retain a lawyer in Maryland, since technically, my son's Home State is now Maryland.  

So now I have a lawyer in Maryland and also one in PA for my child support.  His father has been terminated from his job November 2003 and has not paid support since January 2004.  He also filed for bankruptcy. He is now telling me that I won't get my son in August either.

He is also accusing my husband of "beating" my son.  However, has taken no steps to prove it. Under no circumstances has my husband "beaten" my son.  My son's father made the same claim towards his daughter's step-father.  

He claims abuse as a reason to keep the child(ren).  But ultimately has no evidence to support these accusations.  

He now has also kept his daughter past his scheduled summer visitation time. His visitation with his daughter is every other weekend, and every Wednesday.  For summer he is to have two weeks in July and two weeks in August.

I personally feel that he kept his daughter because of the fact that he "got away with it" with his son.  The courts did nothing to him...well not yet anyway.  

I also have a Child Support Enforcement hearing coming up on July 19th. His father has over $1,600 of arrears with me and $1,300 with his daughter's mom.  I will not be able to attend because I have to work, so my lawyer is going to represent me. As it happens, his daughter's mother and I have the same attorney.  

My Maryland lawyer is awaiting an emergency hearing date.  But we are also waiting to see the outcome of the Enforcement Hearing.  Hopefully, if he shows up they will incarcerate him or make him pay something.  If he is incarcerated, then my PA lawyer will get my son returned to me.  

I know that I have been more that reasonable with my end of the bargain.  I followed the order that was given to me.  So why do I feel like I am the one being punished?  

I don't even get to speak to my son on a regular basis.  His father screens his calls.  Since he has been gone, I have only spoken to him maybe four times.  

My questions are:

1) What are the chances some power will intervene if he fails to return my son to me in August?  My son is to start Kindergarten on August 25th and is already registered in Maryland.

2) Can it be entered in testimony that he has also kept his daughter against court order?

3) What consequences will I face if I choose not to send my son back to Philadelphia until we have a modification hearing?

4) Why isn't it considered kidnapping if he kept my son out of state?

5) If the visitation is modified, what is the likely outcome?

6) Would I be able to ask that his visits be in Maryland only?

7) Will the courts take into consideration that he has not been employed and has not been paying support for a substantial amount of time?

8) Can I make it so that he has to pay for my court and attorney fees?

9) Will he face any consequences for what he's done?

10) What should I do differently in the future to prevent this from happening again?

Thank you, for your consideration and advice.  Please feel free to ask me any questions.

~EvaCollette

[socrateaser]

>1) What are the chances some power will intervene if he fails
>to return my son to me in August?  My son is to start
>Kindergarten on August 25th and is already registered in
>Maryland.

I don't understand the question. Are you asking me for my thoughts on divine intervention? ;-0

>
>2) Can it be entered in testimony that he has also kept his
>daughter against court order?

Yes.

>
>3) What consequences will I face if I choose not to send my
>son back to Philadelphia until we have a modification
>hearing?

Your facts state that the child is with the father, so your question appears irrelevant, If, you want me to assume that you obtain physical custody of the child prior to any future custody hearing, and then you refuse to permit the other parent visitation/custody until all of the litigation is complete, then my answer is that you will be in contempt and face similar sanctions as the father may now face.

If you have concerns about the child being held from you in the future, you need to ask the court to make appropriate protective/restraining orders to prevent this from occuring.

>
>4) Why isn't it considered kidnapping if he kept my son out of
>state?

Kidnapping is the moving of a person against their will, by use of use or threat of fear or force. If the child wants to be with the father, then moving the child is not against the child's will, therefore no kidnapping.

Some State's have a "custodial interference" criminal statute, i.e., any person who intentionally and substantially interferes with a parent's lawful exercise of physical custody over that parent's child(ren), is guilty of a crime. Based on your facts, it seems that PA may not have such a criminal statute, otherwise, I would assume that the police or child protective services or the DA (I assume you have requested help from all of these governmental agencies) would have attempted to obtain a warrant for the father's arrest and the return of the child to you.


>
>5) If the visitation is modified, what is the likely outcome?

Sorry, but I don't read tea leaves.

>
>6) Would I be able to ask that his visits be in Maryland
>only?

You can ask for anything. If the court were to find that the father willfully vioulated your court ordered custody rights, then I would think that supervised visitation is a reasonable means of preventing any future similar occurance.

>
>7) Will the courts take into consideration that he has not
>been employed and has not been paying support for a
>substantial amount of time?

Courts are not permitted to consider a parent's failure to pay support in deterimining that parent's custodial rights. Judges frequently ignore the law in this area and do take it into consideration, however.

>
> Can I make it so that he has to pay for my court and
>attorney fees?

You can ask, but in as much as he's already not paying support, you may be attempting to sqeeze blood from a stone.

>
>9) Will he face any consequences for what he's done?

Assuming that he has actually one what you allege here, then he will almost certainly be sanctioned monetarily, and possibly sentenced to jail for a month or two.

However, beware, that a parent who is found guilty of a crime frequently loses most of their future earning capacity, because no one will hire them after the conviction. So, if money is your aim, and you persue this to the full extent of the law, you may shoot yourself right in the purse.

>10) What should I do differently in the future to prevent this
>from happening again?

Most men believe that they are being punished by their ex because they are forced to pay support and are simultaneously deprived of substantial custody of their child(ren). The law permits this outcome, and society evidently finds this an appropriate means of dealing with the issue of protecting the health and welfare of children -- otherwise the laws would be different than they are.

Nevertheless, as long as your ex perceives that he is being dealt with unjustly by you and the system, he will continue to rebel, or perhaps he will simply dropout and become another of the myriad of so-called "deadbeat" dads who feel that their only response to what the view as the unfairness of the system, is to refuse to cooperate with it entirely.

What I am saying, is that if you want his help, then you need to loosen the reigns a little, because what you have been doing is not working. It would be one thing if this man didn't want to pay AND didn't want the child with him -- under that scenario, you would be well within your rights to ask the court to lock him up and throw away the key. But, your facts suggest that this father believes that he is getting screwed royally, and as long as he so believes, he will not cooperate.

Would YOU cooperate if the situation were reversed?

Food 4 thought.

[chipmunk226]

Soc,

Thank you so much for your response.  You keep your answers quick and to the point.  A lot of other sites are more critical than helpful.  

>>1) What are the chances some power will intervene if he
>fails
>>to return my son to me in August?  My son is to start
>>Kindergarten on August 25th and is already registered in
>>Maryland.
>
>I don't understand the question. Are you asking me for my
>thoughts on divine intervention? ;-0


I guess I didn't word this question too well ;c) I was asking for your thoughts, but I will try to ask the question more directly.

If he does not return my son on 8/8, like I have asked, will the courts intervene then? What will I need to do to take action? Or, will I just have to wait for my contempt hearing on 9/21? (This means he will miss 1 month of Kindergarten.)  


>>4) Why isn't it considered kidnapping if he kept my son out
>of
>>state?
>
>Kidnapping is the moving of a person against their will, by
>use of use or threat of fear or force. If the child wants to
>be with the father, then moving the child is not against the
>child's will, therefore no kidnapping.
>
>Some State's have a "custodial interference" criminal statute,
>i.e., any person who intentionally and substantially
>interferes with a parent's lawful exercise of physical custody
>over that parent's child(ren), is guilty of a crime. Based on
>your facts, it seems that PA may not have such a criminal
>statute, otherwise, I would assume that the police or child
>protective services or the DA (I assume you have requested
>help from all of these governmental agencies) would have
>attempted to obtain a warrant for the father's arrest and the
>return of the child to you.
>

When I tried to get him back in May, the cops said, they will not intervene.  I even called the Detectives Division and the DA.  They said that it is a custody matter and handle it through Family court.  Child protective services wouldn't get involved unless my son was in medical danger.

Philadelphia has to be about the worst when it comes to family law matters.  My custody order was not well written.  I promise you, I did not leave any words out other than our names. I copied this order verbatim.
*
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
PETITIONER (me) VS. DEFENDANT
ORDER

And now, this 11th day of September, 2003, it is hereby ordered as follows:

By Agreement of the parties: mother is permitted to move to Maryland with the parties minor child, born 6/23/99 custody order of 5/7/02 is amended as follows: Father to have partial custody of child two weekends per month, approximately every other weekend.  But he will have included in those two weekends, he will have every Holiday weekend. Gather to be provided with a holiday schedule showing what days the child has off from school so that any Friday or Monday that the child has off, the dad will have thatweekend as one of his two weekends.  The 2nd Weekend will be when father has his other child.  After father reviews the school schedule he is to notify counsel and his counsel will notify for mom which two weeks for the next years and thereafter, father to give mother thirty days notice as to which two weekends in a month he will have partial custody. Father's preference will control as to which of the two weekends he has. Time: Father to have child on a regular when there's not a day off, Friday   P.M. until 6 P.M. Sunday. Mother to provide transportation. If it's a three day weekend, then it's 9 o'clock the night before (Thursday) until Sunday at 6 P.M. I f mother believes she's going to be more than a half hour late, she is to notify father. Also, if mother chooses, she may have a family member go half way to pick up child, in which case the child will be dropped off at father's by the designated family member. Mother to provide father with child's school schedule as they become available.

Holiday: Christmas in odd years mother to have child Christmas day until 12 noon on December 26th, then father to have child for the remainder of the holiday, in even years mother to have the child until 6pm Christmas Day at which time mother to drop child off to father.  Spring Break and Thanksgiving to be considered an extended weekend and will be one of Father's two weekends per month partial custody.
Summer: Father to have child for summer, mother to bring child to father the Sunday after school years end and pick child up the Sunday one week prior to the start of school in the fall
Child's Birthday: In even years father willhave the child on his birthday, in odd years, mother will have child from 6pm. the eve before his birthday until 6pm on the child's birthday.  Mother to pick up and return child to father's home. Present custody order to remain in effect until mother moves to Maryland.
*
Because my order is so vague, no one wants to interpret it.  They say I need to go back to court.  The day the agreement was made they said they would type it up and mail me a copy. It never was sent to me. Finally in December, I had to take a day off work to go down to the Family Court to get a copy because they never answer their phone.

>>9) Will he face any consequences for what he's done?
>
>Assuming that he has actually one what you allege here, then
>he will almost certainly be sanctioned monetarily, and
>possibly sentenced to jail for a month or two.
>
>However, beware, that a parent who is found guilty of a crime
>frequently loses most of their future earning capacity,
>because no one will hire them after the conviction. So, if
>money is your aim, and you pursue this to the full extent of
>the law, you may shoot yourself right in the purse.
>

He already has a conviction where he pleaded no contest to a battery and burglary charge back in 1998 and was working fine until the job terminated him.  He now says that he cannot get another job due to this conviction. But anyone can work at Mc Donald's right?  He said he is having trouble getting gainfully employed.  Is this an acceptable reason?

Why won't the courts question his ability to provide for his son while he is in his care if he has no source of income?


>>10) What should I do differently in the future to prevent
>this
>>from happening again?
>
>Most men believe that they are being punished by their ex
>because they are forced to pay support and are simultaneously
>deprived of substantial custody of their child(ren). The law
>permits this outcome, and society evidently finds this an
>appropriate means of dealing with the issue of protecting the
>health and welfare of children -- otherwise the laws would be
>different than they are.
>
>Nevertheless, as long as your ex perceives that he is being
>dealt with unjustly by you and the system, he will continue to
>rebel, or perhaps he will simply dropout and become another of
>the myriad of so-called "deadbeat" dads who feel that their
>only response to what the view as the unfairness of the
>system, is to refuse to cooperate with it entirely.
>
>What I am saying, is that if you want his help, then you need
>to loosen the reigns a little, because what you have been
>doing is not working. It would be one thing if this man didn't
>want to pay AND didn't want the child with him -- under that
>scenario, you would be well within your rights to ask the
>court to lock him up and throw away the key. But, your facts
>suggest that this father believes that he is getting screwed
>royally, and as long as he so believes, he will not
>cooperate.
>
>Would YOU cooperate if the situation were reversed?
>
>Food 4 thought.

I cannot honestly say I know what I would do if it was reversed, because it is how it is.  But, I know that it should be for what's best for my son.  But if I "loosen the reigns" and give him 5 feet, he will try to take 50.  He feels he should have no boundaries, and no one should tell him what to do. Especially me.  How would you suggest I "loosen up"?

My son thought he was coming back to see me after Memorial Day.  I am sure when he didn't, that made him upset.  Before I took him that weekend, I had just had major shoulder surgery, and didn't want to take him at all.  I also knew that since his dad was already upset at the date he would get him for the summer, there was a possibility he would keep him.  

But I knew it's not about what I wanted, my son wanted to see his dad.  So we went.  The few times I have spoken to my son, he has said how he wants me to come get him.  I tell him that right now is Daddy's turn, and to have fun; not to worry, but I will see him soon.  

I am not a hateful mother, and I am not assuming that you think this.  My son deserves a relationship with his father, but to what extent?  His father does not want to compromise or communicate with me.  He wants what he wants and that's it. There is no way you can tell him that world is not against him.  

I don't want to have to drive him back and forth.  But in order for me to move my son to a better place, I had to make that sacrifice.  Thankfully, I have a wonderful husband who understands this.  Where I live now is much better environment for my son in many regards.

Thanks Soc, again, for all your help and insight.  You answered a lot of questions that I couldn't seem to get or find elsewhere.  

~EvaCollette

[socrateaser]

>If he does not return my son on 8/8, like I have asked, will
>the courts intervene then? What will I need to do to take
>action? Or, will I just have to wait for my contempt hearing
>on 9/21? (This means he will miss 1 month of Kindergarten.)  

Courts do not intervene on their own motion. You must initiate the reqest for an order.

On your facts, if the father does not return the child according to the terms of the court orders re custody, then he will probably be found in contempt and will probably spend some more time in jail. He certainly seems a difficult man to deal with.

I don't understand why you wouldn't be able to obtain an emergency writ of assistance to have the Sheriff aid in returning your child, if the father fails to comply, but each State has different laws and processes, and if PA is just generally less cooperative about such things, then you will be forced to wait until your 9/21 hearing.

[DecentDad]

Hi,

Presuming mom is accurately portraying the scenario and dad is a jerk, looking at long-term orders that will best protect the child subsequent to cleaning up this summer's mess...

Does it help if mom notifies dad via certified mail or through personal service when the first day of kindergarten begins?

Mom has legal custody (per her post), so she's responsible for education, so it's not like dad can suddenly decide to enroll son near dad's home.

Then, if mom goes to pick up son, is refused, and son misses start of kindergarten, dad is willfully prohibiting son from beginning school.

It's irrelevant to the contempt motion, but relevant to the future modification of custody that dad was informed about school and still clearly acted against son's best interest.

And... note to mom... regardless of whether or not your son misses the first month of kindergarten, by the time he starts first grade, it'll be ancient history and he'll be fine.  I think you can best serve your son by really focusing on what long-term arrangement (via modified custody arrangements) are going to help avoid a repeat of the chaos and crap you're facing right now.

DD

[chipmunk226]

Hi Decent Dad,

Thanks for your response.  I have sent him certified mail in the past, but he never picks it up.  Personal service has always been undeliverable because they only make a certain amount of attempts.  I will be sending his official school schedule certified one I receive it.

I spoke to his father yesterday, and as of right now, he said he is willing to allow me to pick up my son on 8/8.  But who knows, he may be saying this to give me a false sense of security. If he does give him back, I will drop the contempt and just file for a modification.  

I did have a child support enforcement hearing today.  The hearing officer was pretty lenient by my lawyer's standards.  But he was ordered to pay me $300 plus the normal $80 a week before 8/19.  Same goes for his daughter's mom. He will need to have a total of $1600.

If he doesn't he will go in front of a judge on 8/30, and my lawyer said we drew a good one, so he will either have to pay up or go to jail.  His daughter's mother is taking him for a custody modification on 8/16, so he has a lot coming up.  

Thanks again Soc and Decent Dad, I will keep everyone "posted" on how everything goes in the coming weeks.  This site is a godsend.  I wish I would have found it sooner.

~EvaCollette