Questions re OSC to disrupt parenting plan

[DecentDad]

Hi Soc,

You may or may not recall that my ex wanted me to give up a weekend so daughter could be a flower girl at her aunt's wedding.  That weekend fell through, apparently, and the wedding was rescheduled.  Biomom has 26 weekends during her custodial time, half of spring break, Xmas week... plenty of opportunities to advise her sister when daughter will be available.

Biomom wrote me email around a month ago, advising me that they wanted to reschedule the wedding for Feb 12 weekend, acknowledging that it was my birthday during it and it was my custodial weekend as well, but that daughter is to be a flower girl.

My wife (gotta love her) has been planning something for my birthday, including my daughter.  I advised biomom that I was unable to accommodate her request.

Relevant factors:

A) Per court orders, it's my custodial weekend with daughter.

B) Our court orders specify that child is to be with each parent from 10am to 5pm on that parent's birthday (called a "special day" in the orders).

C) Our court orders specify that each parent is to consult with the other parent, and before scheduling any activities for the child during the other parent's custodial time, there must be agreement.

D) Our court orders specify that in the event of conflict between custodial, vacation, holiday, and/or special days, holidays and special days shall prevail.

E) In 2003, by email biomom denied my vacation time (i.e., our orders at the time allowed each parent to deny vacation based upon "a conflict") because my vacation was the day before biomom's birthday, and she had made family plans for her birthday.

F) Nothing in the orders gives biomom any authority or flexibility to request vacation outside of summer months.

So, biomom filed an OSC this week, seeking the court to issue orders that would take child 400 miles away for the Feb 12 weekend.  Biomom essentially argues (despite all existing orders) that aunt's (second) wedding is more important than father's birthday.

I'm dealing with a self-entitled person who has attempted to change orders on her whim many times a year.  If she was reasonable and cooperative-- without that history-- my perspective would be much different.  Total accommodation she's given me in 3.5 years is exactly zero.

I don't want to "reward" her into thinking that all she has to do to bully me in conceding to her scheduling whims is to file an OSC.

1.  Is there any judge who is actually going to ignore all existing orders and rule that an aunt's (second) wedding is more important than family plans made for a father's birthday during father's court-ordered special day that also occurs during father's court-ordered custodial time?

2.  Biomom claims to have purchased plane tickets already for daughter.  Is she in contempt for scheduling it for daughter during my custodial time, without first getting agreement from me?  According to order language, she is.

3.  Reasonable for me to ask for attorney fees to respond to this?

4.  Expecting your typical candor, any other thoughts?  

Thanks,
DD

[socrateaser]

>I'm dealing with a self-entitled person who has attempted to
>change orders on her whim many times a year.  If she was
>reasonable and cooperative-- without that history-- my
>perspective would be much different.  Total accommodation
>she's given me in 3.5 years is exactly zero.

No, you're dealing with a mother, and she is instinctually predisoposed by 4.5 million years of primate evolution to believe that raising the child is her exclusive domain -- so, get used to it, cause it's not ever gonna end.

>
>1.  Is there any judge who is actually going to ignore all
>existing orders and rule that an aunt's (second) wedding is
>more important than family plans made for a father's birthday
>during father's court-ordered special day that also occurs
>during father's court-ordered custodial time?

I think mom's gonna go down in flames. If this were NJ, I'd tell you to surrendur, but in CA, I'm surprised that her attorney would bring it to the court -- he/she must know that this is a loser.

>2.  Biomom claims to have purchased plane tickets already for
>daughter.  Is she in contempt for scheduling it for daughter
>during my custodial time, without first getting agreement from
>me?  According to order language, she is.

Well, even if she's in contempt, you're not damaged by her buying plane tickets, so you arent' gonna get sanctions, but you sure as hell should get attorney fees. This is a "frivolous action," based on the orders you post -- unless there's some escape clause somewhere in the order that we're not seeing.

What does her pleading actually say -- word for word.

>
>3.  Reasonable for me to ask for attorney fees to respond to
>this?

Probably, I need to read the affidavit.

>
>4.  Expecting your typical candor, any other thoughts?  

If I were to tell you what I was thinking, I'd be arrested for a hate crime.

[DecentDad]

Hi,

Thanks for that.

Pleading is not based on any legal foundation.  Just that it's so important for child to be a flower girl, that it's her aunt, that I'm so unreasonable, etc.

She's in pro per, btw.

DD

[DecentDad]

Hi,

When I  last wrote, it was based upon what my attorney's office paraphrased over the phone (i.e., her declaration).

Her declaration is a 2 page joke.

She notes that the original wedding date was Nov 20.  She shows our correspondence about that date:

I was concerned that she wanted to travel with 4 year old daughter to a wedding, and bring her back the day before my Thanksgiving travel, and then have daughter travel across country with me for Thanksgiving with family.  That's an exhausting six-day itinerary for an adult, let alone a preschooler.  I asked her (in correspondence) to discuss how we could ensure daughter could enjoy both family events without overwhelming daughter... because daughter usually gets sick after traveling (true), and I didn't want her to be sick during my T-day holiday travel.

She didn't respond to my concerns.  She just said she'll take me to court if I don't agree.

I then replied, wanting to avoid court, proposing we draw up a stipulation that would allow daughter to go to wedding, would have two days of normal schedule/rest on Monday/Tuesday, and then travel with me on Thanksgiving as planned.  (Stipulation is necessary because she has a history of rescinding agreements after she gets her benefit from them).

She never responded to that.  She later advised me that her sister was changing the wedding date.

In her declaration, she claims that I used the situation to my advantage by forcing the stipulation and rearranging the schedule as I wanted... not as she proposed.  Timeshare exchange in my proposal was identical, and it gave her the entire wedding weekend, as she wanted.  In my proposal, I just placed daughter in my home a day before Thanksgiving travel so I could make sure she was rested (i.e., because I knew I can't count on biomom for that).

Truth is... wedding could have been Nov 20, daughter could have attended.  Biomom is the only person who didn't want to play ball.  She just wanted what she wanted.

I had forgotten that I actually DID accommodate the original wedding date, and that biomom is the person who presumably told her family that I refused to give it up.

So, the wedding was changed to my birthday weekend.  Biomom claims that sister says Feb 12 is the now only day she can get married (i.e., apparently her sister refuses to consider any other wedding venue, prioritizing venue over my daughter's availability).

Biomom includes no declarations from family members, no evidence of wedding date availability.

1.  In that I previously accommodated biomom-- and she declares that the wedding had to be changed because of my unreasonableness (not any other circumstance)-- does it make her OSC even more frivolous?

2.  If so, would one take an approach that is different than the typical response to declaration?

3.  Do I need to "prove" anything for sanctions, or just request them, and the court has complete discretion?

4.  BTW, this OSC is scheduled for the same hearing time as my OSC to vacate the judgment (i.e., under 663 and 471) because biomom included clauses in it that weren't part of the settlement.  Any way to strategically use her frivolous OSC to aid my legit OSC?

Thanks,
DD

[socrateaser]

>1.  In that I previously accommodated biomom-- and she
>declares that the wedding had to be changed because of my
>unreasonableness (not any other circumstance)-- does it make
>her OSC even more frivolous?

To get a finding that the motion was frivolous would require proof that there is no underlying basis for the motion in either law or equity. Do you remember the case cite that you gave me: Enrique M. v. Angelina V. (2004) , Cal.App.4th. That case holds that the child's best interests is the standard for allowing the court to order parenting plan changes.

So, all your ex needs to show is that the wedding is more in the child's best interests than your birthday, and she wins. In any case, her motion is not frivolous -- it requests resolution of a dispute over that exact question -- who's special day is more important, child's sister's wedding and participation as a flower girl, or dad's birthday?

You're about to find out just exactly how biased your judge is in favor of motherhood.

>
>2.  If so, would one take an approach that is different than
>the typical response to declaration?

I would respond to this OSC by pointing out what is actually at stake: who's more important to the child, aunt or dad? If the judge takes the bait, he must rule for you. He could avoid the ruling by changing the question to: who's event will have a more positive affect on the child? And, then the court could rule against you because it finds that being a flower girl is a more socializing function.

This is really a very compelling example of what's wrong with the present system of family law. The best interests standard completely ignores the existence of both parents -- all that matters is what the court believes is good for the child, not what either parent believes, wants or desires for the child. But, I digress...(I've always wanted to use that phrase...lol!).


>3.  Do I need to "prove" anything for sanctions, or just
>request them, and the court has complete discretion?

You need to prove that the motion is frivolous, but unless you can show from her declaration or testimony that she is acting with the intent to punish you by taking your child from you on your birthday, you will be wasting your time trying to demonstrate a frivolous action.

>4.  BTW, this OSC is scheduled for the same hearing time as my
>OSC to vacate the judgment (i.e., under 663 and 471) because
>biomom included clauses in it that weren't part of the
>settlement.  Any way to strategically use her frivolous OSC to
>aid my legit OSC?

You can use her declaration as evidence to prove anything material to your judgment hearing. I can't think of what that could be, but you may come up with something.

[DecentDad]

Thanks for your reply, Soc

I'm confused why your previous reply strongly suggested she's gonna "go down in flames", but now you're thinking it's not so frivolous in the court's eyes.

All orders put child with me on that weekend.  For my birthday.  For my custodial weekend.  We also have orders mandating agreement between parents before scheduling anything else.

Why the heck do we have orders if all a parent has to do is whine to the court-- citing no legal basis-- to get them changed?

How am I supposed to plan any events with my daughter if biomom can go crying to the court at any time to change the schedule?

She cites no legal foundation.  Only that daughter should be able to attend aunt's wedding because her family is "very close" (i.e., her parents are divorced, dad is an addict, siblings are childless, sister is now on her third marriage, mother is a recovered alcoholic, mother and biomom didn't talk for 10 years until my daughter was born).

At no time in her declaration does she argue best interest for the child.  Only that child is scheduled to be flower girl.

She doesn't outline how important it is to daughter... but rather how important it is to her family.

She isn't asking the court for an exchange of time.  She is asking court that I give up the entire weekend, boom, done.

So... how about this... if stepmom starts engaging daughter in my birthday planning, making daughter a "birthday fairy" or something, picking out decorations... she's more involved in the Feb 12 weekend.

Questions:

1. Is it relevant that biomom told custody evaluator that my wedding was extremely traumatic for the child a year ago?

2.  Is it relevant that biomom denied my vacation time in 2003 because it ended the day before biomom's birthday, and she had family birthday plans all weekend long?

3.  She has scheduled activity for child during my custodial time with no agreement (as required by court orders).  If I lose that weekend as a result, how is that not contempt?!

Soc... if you're not just playing devil's advocate or being glib, and her OSC has a chance of getting granted, I'm really at a loss.  It rewards parents for ignoring court orders altogether and simply run whining to the court when they don't like it.

DD

[socrateaser]

>Questions:
>
>1. Is it relevant that biomom told custody evaluator that my
>wedding was extremely traumatic for the child a year ago?

Not particularly. That was YOUR wedding to the child's new stepmother.

>
>2.  Is it relevant that biomom denied my vacation time in 2003
>because it ended the day before biomom's birthday, and she had
>family birthday plans all weekend long?

Not particularly. She wasn't depriving you of a special day.

>
>3.  She has scheduled activity for child during my custodial
>time with no agreement (as required by court orders).  If I
>lose that weekend as a result, how is that not contempt?!

It's not contempt, because she has an OSC hearing to attempt to defeat that possibility.

>
>Soc... if you're not just playing devil's advocate or being
>glib, and her OSC has a chance of getting granted, I'm really
>at a loss.  It rewards parents for ignoring court orders
>altogether and simply run whining to the court when they don't
>like it.

I'm not being glib, but I am playing devil's advocate. Your argument is that there is an order in place, that the mother knew of the conflict and did nothing to mitigate it with her sister, this is not just any day, it's your birthday, and that if the court permits this now, mother will feel that she has carte blanche to manipulate the parenting plan to her advantage.

BM's argument is that this is a one-time special event and the child is a participant, thus this is a valuable socializing experience for the child.

Is it possible that you have either paid for something special on that day for which you cannot obtain a refund (like a magician or a clown, etc.), or maybe that some other relatives are flying into town for your bday party and part of their reason for being there is to see your child?

Think real hard because if your "special" plans will be screwed up, or there is something that the child will be involved in that is an especially socializing experience that will not be repeated again, then THAT would give you a huge advantage.

In my prior posts, I hadn't considered the fact that the child is to be a flower girl in the cerimony. That changes the character of the event. If the child was just sitting in the audience, then no big deal, but under the circumstances, I can see a judge who thinks himself god, finding against you.

And, after all, what's the point in fighting if you're not gonna win -- may as well settle and try to get something else in return.

[DecentDad]

Do you have time if I email you a draft of my response?

It incorporates the elements discussed in this thread.

Would love if you're able to skim and give high level reaction within a day or two.

DD

[socrateaser]

sorry, no time for separate revue. plus, must have pleading to which you are responding.

[DecentDad]

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