is it too early or too late to file contempt charges

[stepmom74]

I live in ND.  My husband does not have any custody, only visitation rights.  He has not seen his daughter in about 2 months because the BM says SD doesn't want to see us.  She is in counseling now and the counselor told us not to push visitation until he finds out the reason for her acting this way.  We have already waited 2 months and feel that it is getting worse the longer we wait.

There is no reason for not coming besides being jealous of her little sister and the new baby we have on the way.  She has told her mother that we treat her differently than we do my daughter.  We find that untrue and not enough grounds to deny us visitation with her.  

The BM says she is not going to make her daughter do something she doesn't want to do.  My SD is only 10 and we don't think she has the right to make that decision on her own.

We only have visitation and no custody so she thinks that she can tell us what to do and she seems to get away with it in court.

1.  How much time should we wait to file contempt for denial of visitation

2.  Can we file for each weekend visitation denial and for the month-long summer visitation denial?

3.  Can she use the therapists recommendation to wait until he finds out more about whats going on against us?  (He told us we could see her if we wanted,  but it might just cause some resentment.)

4.  Do we have a good chance of her paying for our lawyer fees.  Any chance we could make her go to jail for denying visitation?

[socrateaser]

>1.  How much time should we wait to file contempt for denial
>of visitation

Send a letter to the counsellor detailing your concerns and ask how long he/she believes will be required for her to make a reccommendation on the matter. Explain to the counsellor that you believe the mother may be using the counselling sessions to undermine your relationship with your daughter by blocking visitation, and that you need to see some reasonable progress towards a conclusion, or you will be forced to file a contempt motion against the mother in order to protect your parental rights. Offer to meet with the child in the counsellor's office. You must make the counsellor realize that you are only interested in the child's welfare, not your own -- get it?

Let's see what kind of response you get.


>2.  Can we file for each weekend visitation denial and for the
>month-long summer visitation denial?

Yes, but if the child doesn't want to go, then the mother can use that to show that she is not willfully violating the custody order -- and you will lose the contempt motion. You need to ask the court to order supervised vists first, with a DIFFERENT counsellor, so that there are no conflicts and so that you can get to the bottom of this issue.

>3.  Can she use the therapists recommendation to wait until he
>finds out more about whats going on against us?  (He told us
>we could see her if we wanted,  but it might just cause some
>resentment.)

The counsellor has no authority to grant you visitation, so don't allow yourself to be manipulated. You can see your child when the court order allows -- just show up and visit. The bigger issue is to make sure your child realizes that you love her more than anyone else on Earth. You can do this by sending her a letter via the counsellor, and asking the counsellor to read it to the child. The letter should be filled with nothing but happy thoughts -- not "Why don't you want to see me," but rather, "I miss you terribly -- remember when we used to...(fun thing)"

>
>4.  Do we have a good chance of her paying for our lawyer
>fees.  Any chance we could make her go to jail for denying
>visitation?

You have no change for anything at the moment. This is about your child, not the mother. I know that the mother may be using the situation to her advantage, but you need to figure out how you can turn the tables on her, and not immediately jump in to a court battle.

Don't go to war unless you KNOW you will win.

[stepmom74]

Dear Soc,

The problems with visitation happened before seeing a counselor.   My SD said she was having a problem with me and her sister and didn't want to come any more.  No reasonable excuse was given.  She was fine the last day she we had her and then, all of a sudden, she hates us.  (We believe it to be alienation on the part of the mother.)

1.  Doesn't the mother have to prove abuse or something along those lines before denying the visitation?

2.  Is just saying that her daughter doesn't want to come enough to lose in court over?  I was under the impression that the BM has a legal right to enforce the visitation, not to let the daughter decide.  Again, there is no reason why she hasn't let us see her.  Nothing happened when she was here except for normal parental discipline when she did something wrong.  Nothing remotely abusive.

This is the longest we've went without seeing her in 10 years.  We have always done our part to be in her life and now she is just pushing us away.  The longer this goes on, the more distant she is becoming.  That is why we want to stop the cycle as soon as possible.

[socrateaser]

>1.  Doesn't the mother have to prove abuse or something along
>those lines before denying the visitation?

All court orders are enforceable via the court's power of contemt. To prove contempt requires (1) a valid, enforceable order, (2) knowledge by the defendant of the order, and (3) willful violation of the order.

Your facts state that your step daughter refused to visit. Do you plan to ask the court to hold your step daughter in contempt? That would go over lin court ike a lead balloon, of course!

So, you want to find the mother in contempt. Obviously, the court order is valid and enforceable, and mother is aware of it and what it requires. And, the facts show that mother is not willing to force the child to visit, against her will, but that she is willing to place the child in counselling in order to determine the reason why. Willfullness requires intentional, voluntary action, Mother's failure to force SD to visit, is certainly intentional, but her willingness to find out why indicates that she is not intentionally trying to violate the order, rather it appears that mother is merely trying to not injure the child or your relationship in the process.

The court will not find contempt on these facts. This not to say that there aren't other facts that you can prove which WILL prove contempt. But, what you're giving me at the moment won't carry your burden of proof, so you will waste time and money, and leave the court unhappy.

My first rule of litigation is, "Don't go to court unless you are at least 80% certain you will win." So, I'm advising against the contempt charge, at the moment.

>2.  Is just saying that her daughter doesn't want to come
>enough to lose in court over?  I was under the impression that
>the BM has a legal right to enforce the visitation, not to let
>the daughter decide.  Again, there is no reason why she hasn't
>let us see her.  Nothing happened when she was here except for
>normal parental discipline when she did something wrong.
>Nothing remotely abusive.

No, but see #1, above.

I already gave you some suggestions as to how to handle this with the idea that it will help you eliminate the step daughter as the culprit, and/or get you some opportunities to try to resolve the issue before it gets worse.

Try them. If they don't work, you will at least have more evidence. You may need to go to court, if only to obtain an order for forced, supervised visitation, but I wouldn't go there until I've tried everything else.