Motion to Vacate

[futurestep-mom_AZ]

Dear Soc- This is a Motion to vacate that I wrote up on behalf of my husband to file on March 1. What do you think? Facts are in the motion but a quick run down.

Primary residential and joint legal=Dad
supervised visitation and joint legal=Mom

State is AZ.

Mom has a drug problem, proven in Court by court ordered drug testing. Mom has not seen child since Sunday after Thanksgiving. Judge last ordered visitation with mom to be supervised by dad or dads agent. child is 5 and in kindergarten.

Parents live 200 miles apart and Court is in moms county.



IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF ____________

NAME,                                No.: DO-########    
Petitioner,   
vs.                                        Motion to Vacate Review Hearing
NAME,        
Respondent.          

The party; NAME, Petitioner, prays the Court grant this Motion to Vacate the Review Hearing set for March ##, 2005 by this Court.
The Court set this hearing on October ##, 2004 during the change in custody hearing. Custody was changed from Respondent having sole custody with 50% visitation to Petitioner to Petitioner and Respondent sharing joint legal custody and Petitioner, Father having primary residential custody.

Visitation for Respondent and child was set up to include every other weekend-supervised visitation with Respondents' mother acting as supervisor. The Court then ordered Respondent, Mother to undergo six months of random drug testing and recommended rehabilitation. The March ##, 2005 hearing was set to review the status of supervised visitation contingent on the random drug testing.

On December ##, 2004 this Court called another hearing to address a letter written by the Supervisor who requested this Court to excuse her from being the supervisor any longer. At this hearing the Respondent suggested an alternate supervisor, which the Court requested further information on and set visitation to occur in DADS TOWN NAME with Petitioner or an agent of Petitioner acting as supervisor until such a time where visitation in MOMS TOWN NAME could resume. Respondent was admonished for not taking the ordered random drug tests and again this Court recommended rehabilitation.

As of this date Respondent mother has not seen the minor child since November ##,2004. Respondent mother has informed minor child that she will be in DADS TOWN NAME to see the minor child and then fails to show up on at least four separate occasions. To Petitioners knowledge the last drug test taken by Respondent was on December ##, 2004 and it was positive for methamphetamines. Respondent has failed to comply with any of the Orders and/or recommendations of this Court and Petitioner prays that this Court grant this Motion to Vacate the Review Hearing.


This probably gives enough background but if more is needed let me know.

Questions:
1) Is this what is necessary for this motion?
2) Should this motion have less background?
3) Petitioner wishes to request that he could appear telephonically (200 miles away from Court) if this motion is denied- should he add that to this motion or a seperate one?
4) Filing on march 1 would give just over 3 weeks is that enough time?
5) Petitioner requested an order to stop wage assignment back in Aug. with the change in custody, it seems to have been looked over and never signed. The amount is not much but it is the principal really should he file to stop again? He is afraid the Court will make it a $$$ issue.

Any further advice greatly appreciaited!!!! Thanks in advance.

[socrateaser]

>Questions:
>1) Is this what is necessary for this motion?

You don't vacate a hearing. You vacate an order. Vacate means to render null and void (of no force and/or effect, and as if it had never existed).

>2) Should this motion have less background?

I'm having trouble following the facts, so I believe that the judge will also.

>3) Petitioner wishes to request that he could appear
>telephonically (200 miles away from Court) if this motion is
>denied- should he add that to this motion or a seperate one?

Same motion.


>4) Filing on march 1 would give just over 3 weeks is that
>enough time?

Probably.


>5) Petitioner requested an order to stop wage assignment back
>in Aug. with the change in custody, it seems to have been
>looked over and never signed. The amount is not much but it is
>the principal really should he file to stop again? He is
>afraid the Court will make it a $$$ issue.

I'm not at all clear on what motion hearing you are attempting to stop, or why you want to stop it. You need to give me the facts that have led you to this point.

[futurestep-mom_AZ]

Sorry soc-

I have a tendency to jump the gun. Quick run down of facts to follow

from June 2002-Oct 2004 mom had sole legal and dad had 50% visitation (parties live 200 miles away)

Aug 2004- Dad had evidence of mom in abusive relationship and using drugs files for emergency temp custody- emergency temp denied but mom agreed child should stay with dad (dad enrolled child in kindergarten child turned 5 in sept 2004) Court then waits until mom should have filed response (20 days) mom did not respond so Court sets a hearing for end of Sept stating that the child should stay where she is with dad until the hearing.

One week before the hearing in Sept. the hearing is cancelled and rescheduled for late Oct again stating the child stay put with dad until hearing. At this point mom saw child for one weekend since August 1st b/c mom would not agree to supervised visitation.

Oct hearing. Right off the bat judge asks both parties to volunteer for a drug test. They do Dad passes mom fails- positive for meth. Judge changes custody to joint legal with dad having primary residential.

Supervised Visitation is set up EOW with moms mom (maternal g-ma) being the supervisor. Mom has to have 6 months clean random drug tests (at this time judge set the late march hearing to review the status)and judge reccommends rehab. Mom has her first visit, it goes ok but supervisor cancels next two visits, mom being difficult won't get grug tests and won't dump boyfriend. Then mom gets four days at thanksgiving. Friday after thanksgiving mom kicks supervisors out and takes off with child.

Police were called (can't do anything but write a report) we talk mom into letting the supervisor back in and mom passed out with the stove on and two five year old in the house. The supervisor took the child for the remainder of the weekend and returned the child on Sunday after thanksgiving.

That is the last time mom saw the child. Supervisor wrote a letter to the judge requesting to be removed. Judge set a hearing and spent the entire hearing pretty much yelling at mom for not taking random drug tests and not going to rehab. Again he orders tests and reccommends rehab, judge removes g-ma as supervisor and mom reccomends a friend for supervisor. Judge says that the friend must turn in a driving record, proof of insurance and must meet with dad since dad does not know this person. Until a new supervisor is approved then visitation has to be in phoenix with dad as supervisor or someone he approves.

Mom has four times told the child she would be there the next day and fails to show. Until last night mom hadn't calle din over two weeks and last words said to child two weeks ago were see you tomorrow (child is 5).

There are at least four of dads family members who have offered their homes to mom. My mother in law offered to pay for a hotel but child cannot stay at hotel (mom is a flight risk) and mom has a life long friend up here that has offered but dad is not comfortable with child staying overnight with mom and the friend yet. She has been invited anytime she wants to come with the only requirement being to bring proof of a clean drug test.

To date mom has taken one drug test since dec 21 hearing on the 29th of dec and tested positive for meth.

We thought to vacate/ cancel hearing b/c we are afraid another lashing by the judge will be the final straw, moms house will be sold at auction in early march, she has no job or money, maternal g-ma is about to file to take the other child and she has alientated all those that do want to help. Even though the smallest part of us know that only makes it more likely that the child stay here with us this little girl needs her mommy to get better b/c she doesn't understand why mommy is doing this and it is hurting her.

Any advice? Sorry so long.

[socrateaser]

I suggest that you allow the hearing to take place as planned, and let the cards fall as they may. If you don't, then someday the child may question your motives. This way, it will always be the court's decision for what happened.

[futurestep-mom_AZ]

Thanks for the advice. After discussing it my husband feels that the Judge wouldn't grant a request to stop the hearing anyway. The hearing in Dec. was telephonic although I heard the recording I didn't "hear" everything and my husband seems to think the Judge WANTS to know if mom has complied.

I worry for her, but more for my SD. But some good news mom went in and took a drug test thurs (on my hubbys orders, as a condition of visitation, not randomly) but she passed. So she says she is on her way here to see the child, I have my fingers crossed.

Thanks again and I'll post to let you know how everything goes in March