What to file along with the final hearing

[TwoBoys]

This is in reference to my fiances case with his 20 month old son.

History:
They were not married, both resided (and currently reside) in florida.
She allowed liberal visitation under her rules for quite some time.  He encouraged legalization of visitation and child support, she refused.  

He filed for legalized visitation and CS in Feb 04, two days after being served she left the area, moved 8 hours away to S Florida.

Since then, battle has been long and drawn out with several threats from her against him (never let him see the child again, etc).  Several denials of visitation, etc.

In June 04, temporary visitation hearing awarded Father (NCP) with one week visitation per month.  She refused to meet halfway, even though judge suggested it, b/c it wasnt in the order.

Due to the continual denials of visitation, they reached an agreement in August 04, allowing him 14 weekends per year plus 3 week long visitations.

Since hten, she has denied thanksgiving, two of his week long visitations that were supposed to occur under the temporary hearing, and there have been several incidents at exchanges.

Recently, there was a case management hearing, at which time the stipulation they agreed to was ordered with the judge reserving jurisdiction on all outstanding issues.

Some of these include: exactly what dates the 14 visitations are to take place on, the exact exchange point, what a week is considered, etc.

The judge stated at the Case Management Hearing that both parties needed to "try to work out" the outstanding issues.  Any agreemeents made could be entered in as an amendment to the stipulation.  Anything they could not agree on would be presented at Final HEaring to be decided by the Judge.

My questions are:
1.  When we set the final hearing, should we specify in the request to set it what the outstanding issues are?  We are afraid to do this, because we know that no matter what we list as outstanding issues, they will contest the setting of the final hearing based on what we describe as the outstanding issues.

2.  One of the outstanding issues are exact dates for the 14 weekends.  She has proposed a schedule which we agreed to, and since we have agreed, the BM has now decided she doesnt agree.  Should we request those dates that she proposed since we have several letters from her and her attorney (including emails) stating that these are the weekends they want or can they just discard them just like that and change their mind?

3.  Can we include emails from her to be considered by the judge when we request the final hearing? (for the purpose of showing that she was in agreement to these things, and changed her mind only once she got mad at him for requesting one of his week long pareting sessions?)

4.  Can we include correspondence from the father to the mother to be considered by the judge when we request and set our final hearing?

5.  What will the judge consider "a week"?  She insists a week is 5 days (monday through friday).  And at most, could be added to a weekend, and only be Monday at 5 pm through Sunday at 5 pm.  By our definition, a week is (7) 24 hour periods.  So Monday From 5 pm until Sunday until 5 pm.  

6.  She also insists that for our week long visitation to be more than 5 days, it must override one of his weekends (taken in conjunction with a weekend of his).  Our agreement specifically states "NCP gets 14 weekends.  In addition to the 14 weekends, the NCP gets 3 week long visits, one to occur during the Fathers day Period, one at Christmas, and one during the NCPs vacation time.

7.  With the way the week long visits are worded, would you say that the NCPs week to occur during his vacation time and during the "fathers day period" are at his discretion?  Meaning, he can take it whenever he has vacation time, and so long as this doesnt interfere with any specific dates that she is allowed? (Fourth of July, etc).  She is refusing to allow the fathers day week to occur the week starting on fathers day and the 7 days after because it would actually give NCP 7 days for fathers day, which includes the childs birthday, and the very next day is NCPs birthday, which he actually gets.

8. Last question (Sorry!).  NCPs birthday.  It doesnt specify when this begins and ends - only that the NCP shall be allowed to spend his birthday with the child.  What is a typical starting/ending time for this?  We assumed 7 pm the day before to begin and ending at 9 am the following day (or something along those lines).  She is saying he gets to spend part of that day... which is not reasonable because there is 8 hours travel time.  Theres no way he can be transported the day of both ways and still spend any time with his father.  What would be a reasonable request in the hearing?  

Thanks, sorry we have so many questions.  Were Pro se and want to do this correctly,
Thank you,
TwoBoys


edited to add:  just got a copy of the court order in the mail, and were ordered to a "settlement conference" before setting the final hearing.  We tried setting it , and her atty refused to do it with us as pro se.  Now what?!

[socrateaser]

>1.  When we set the final hearing, should we specify in the
>request to set it what the outstanding issues are?  We are
>afraid to do this, because we know that no matter what we list
>as outstanding issues, they will contest the setting of the
>final hearing based on what we describe as the outstanding
>issues.

Ordinarily, opposing counsel agree on the outstanding issues prior to the final hearing. Frequently, court rules have a form that must be filled out specifically listing the issues and it must be signed by both attorneys, certifying that they made good faith efforts to negotiate a settlement, and that the specified items remain "at issue."

I don't know FL Civil Procedure so I cannot advise you as to the specific rules used in your jurisdiction.

>
>2.  One of the outstanding issues are exact dates for the 14
>weekends.  She has proposed a schedule which we agreed to, and
>since we have agreed, the BM has now decided she doesnt agree.
> Should we request those dates that she proposed since we have
>several letters from her and her attorney (including emails)
>stating that these are the weekends they want or can they just
>discard them just like that and change their mind?

Depends on the jurisdiction. More than likely, unless you have the other party's signature on a document, you cannot hold her to any verbal agreement, because the burden of proof will be impossible to meet.

>
>3.  Can we include emails from her to be considered by the
>judge when we request the final hearing? (for the purpose of
>showing that she was in agreement to these things, and changed
>her mind only once she got mad at him for requesting one of
>his week long pareting sessions?)

Depends on whether you can authenticate the emails as having actually been authored by the other party. If the emails are stored on a commercial server, such as yahoo.com or msn.com, then you could show the judge that they are stored there and that you cannot possibly modify them. However, if they are stored on your local computer, as would be the case with AOL's personal filing cabinet, then the emails could be modified by you, and therefore could be deemed unreliable and inadmissible.

Proving an email is not as easy as you think it might be.

>
>4.  Can we include correspondence from the father to the
>mother to be considered by the judge when we request and set
>our final hearing?

Yes, as long as you can prove that it is what you purport it to be.

>
>5.  What will the judge consider "a week"?  She insists a week
>is 5 days (monday through friday).  And at most, could be
>added to a weekend, and only be Monday at 5 pm through Sunday
>at 5 pm.  By our definition, a week is (7) 24 hour periods.
>So Monday From 5 pm until Sunday until 5 pm.  

I don't know. That's up to the rules of your jurisdiction.

>
>6.  She also insists that for our week long visitation to be
>more than 5 days, it must override one of his weekends (taken
>in conjunction with a weekend of his).  Our agreement
>specifically states "NCP gets 14 weekends.  In addition to the
>14 weekends, the NCP gets 3 week long visits, one to occur
>during the Fathers day Period, one at Christmas, and one
>during the NCPs vacation time.

This is di minimis. Don't get hung up on details. The judge isn't going to burn one of your weekends to give you a holiday.

>
>7.  With the way the week long visits are worded, would you
>say that the NCPs week to occur during his vacation time and
>during the "fathers day period" are at his discretion?
>Meaning, he can take it whenever he has vacation time, and so
>long as this doesnt interfere with any specific dates that she
>is allowed? (Fourth of July, etc).  She is refusing to allow
>the fathers day week to occur the week starting on fathers day
>and the 7 days after because it would actually give NCP 7 days
>for fathers day, which includes the childs birthday, and the
>very next day is NCPs birthday, which he actually gets.

You need to lay out your version of the plan specifically, tell the other attorney in writing that you believe that your plan is reasonable, and then state that if the other parent wants to change things, that you will consider it only if the result does not cause you to lose any time with the child.

Stand your ground, unless the other party is willing to give something up to get what they want.

>
>8. Last question (Sorry!).  NCPs birthday.  It doesnt specify
>when this begins and ends - only that the NCP shall be allowed
>to spend his birthday with the child.  What is a typical
>starting/ending time for this?  We assumed 7 pm the day before
>to begin and ending at 9 am the following day (or something
>along those lines).  She is saying he gets to spend part of
>that day... which is not reasonable because there is 8 hours
>travel time.  Theres no way he can be transported the day of
>both ways and still spend any time with his father.  What
>would be a reasonable request in the hearing?  

Specify it.

>
>edited to add:  just got a copy of the court order in the
>mail, and were ordered to a "settlement conference" before
>setting the final hearing.  We tried setting it , and her atty
>refused to do it with us as pro se.  Now what?!

You write a letter. Something like this:

By Fax to ???-???-????; original to follow by U.S. Mail

Dear Attorney,

Per our phone conversation of ??/??/??, you have stated that you are refusing to set a settlement conference as ordered by the court, unless I am represented by an attorney. As I am representing myself, your request is unreasonable. I am available for a conference on the following dates and times:

(list 3 dates and times)

If you do not choose one of the above dates and times or contact me in writing with some alternative by ??/??/?? (5 days) , I will assume that it is your intent to willfully violate the court order and I will file a motion for contempt against you and your client to compel your cooperation.

Frankly, I do not understand your unwillingness to act in good faith on this issue, and I would appreciate an explanation as to why you seem to believe that I should not be treated with the same courtesy as I have extended to you.

If you have any questions or concerns, please do not hesitate to contact me immediately.

Sincerely,

YOURNAME
(Petitioner/Respondent) Pro Se

Now, the above letter assumes that you know how to file a contempt motion. If you don't, and your opponent calls your bluff, then you're SOL. The availability of a legal remedy is only as good as your ability to obtain it.

The point is, that from what I've read so far, you're outgunned, and you're attempting to fight a battle with a handgun, when your opponent has a tank. Unless you are very familiar with courtrooms and legal process, anyone who attempts to go pro se against an opponent represented by legal counsel, is gonna get creamed.

Let me repeat that so it sinks in. You're gonna get creamed.

Hire a lawyer.

[TwoBoys]

This is in reference to my fiances case with his 20 month old son.

History:
They were not married, both resided (and currently reside) in florida.
She allowed liberal visitation under her rules for quite some time.  He encouraged legalization of visitation and child support, she refused.  

He filed for legalized visitation and CS in Feb 04, two days after being served she left the area, moved 8 hours away to S Florida.

Since then, battle has been long and drawn out with several threats from her against him (never let him see the child again, etc).  Several denials of visitation, etc.

In June 04, temporary visitation hearing awarded Father (NCP) with one week visitation per month.  She refused to meet halfway, even though judge suggested it, b/c it wasnt in the order.

Due to the continual denials of visitation, they reached an agreement in August 04, allowing him 14 weekends per year plus 3 week long visitations.

Since hten, she has denied thanksgiving, two of his week long visitations that were supposed to occur under the temporary hearing, and there have been several incidents at exchanges.

Recently, there was a case management hearing, at which time the stipulation they agreed to was ordered with the judge reserving jurisdiction on all outstanding issues.

Some of these include: exactly what dates the 14 visitations are to take place on, the exact exchange point, what a week is considered, etc.

The judge stated at the Case Management Hearing that both parties needed to "try to work out" the outstanding issues.  Any agreemeents made could be entered in as an amendment to the stipulation.  Anything they could not agree on would be presented at Final HEaring to be decided by the Judge.

My questions are:
1.  When we set the final hearing, should we specify in the request to set it what the outstanding issues are?  We are afraid to do this, because we know that no matter what we list as outstanding issues, they will contest the setting of the final hearing based on what we describe as the outstanding issues.

2.  One of the outstanding issues are exact dates for the 14 weekends.  She has proposed a schedule which we agreed to, and since we have agreed, the BM has now decided she doesnt agree.  Should we request those dates that she proposed since we have several letters from her and her attorney (including emails) stating that these are the weekends they want or can they just discard them just like that and change their mind?

3.  Can we include emails from her to be considered by the judge when we request the final hearing? (for the purpose of showing that she was in agreement to these things, and changed her mind only once she got mad at him for requesting one of his week long pareting sessions?)

4.  Can we include correspondence from the father to the mother to be considered by the judge when we request and set our final hearing?

5.  What will the judge consider "a week"?  She insists a week is 5 days (monday through friday).  And at most, could be added to a weekend, and only be Monday at 5 pm through Sunday at 5 pm.  By our definition, a week is (7) 24 hour periods.  So Monday From 5 pm until Sunday until 5 pm.  

6.  She also insists that for our week long visitation to be more than 5 days, it must override one of his weekends (taken in conjunction with a weekend of his).  Our agreement specifically states "NCP gets 14 weekends.  In addition to the 14 weekends, the NCP gets 3 week long visits, one to occur during the Fathers day Period, one at Christmas, and one during the NCPs vacation time.

7.  With the way the week long visits are worded, would you say that the NCPs week to occur during his vacation time and during the "fathers day period" are at his discretion?  Meaning, he can take it whenever he has vacation time, and so long as this doesnt interfere with any specific dates that she is allowed? (Fourth of July, etc).  She is refusing to allow the fathers day week to occur the week starting on fathers day and the 7 days after because it would actually give NCP 7 days for fathers day, which includes the childs birthday, and the very next day is NCPs birthday, which he actually gets.

8. Last question (Sorry!).  NCPs birthday.  It doesnt specify when this begins and ends - only that the NCP shall be allowed to spend his birthday with the child.  What is a typical starting/ending time for this?  We assumed 7 pm the day before to begin and ending at 9 am the following day (or something along those lines).  She is saying he gets to spend part of that day... which is not reasonable because there is 8 hours travel time.  Theres no way he can be transported the day of both ways and still spend any time with his father.  What would be a reasonable request in the hearing?  

Thanks, sorry we have so many questions.  Were Pro se and want to do this correctly,
Thank you,
TwoBoys


edited to add:  just got a copy of the court order in the mail, and were ordered to a "settlement conference" before setting the final hearing.  We tried setting it , and her atty refused to do it with us as pro se.  Now what?!

[socrateaser]

>1.  When we set the final hearing, should we specify in the
>request to set it what the outstanding issues are?  We are
>afraid to do this, because we know that no matter what we list
>as outstanding issues, they will contest the setting of the
>final hearing based on what we describe as the outstanding
>issues.

Ordinarily, opposing counsel agree on the outstanding issues prior to the final hearing. Frequently, court rules have a form that must be filled out specifically listing the issues and it must be signed by both attorneys, certifying that they made good faith efforts to negotiate a settlement, and that the specified items remain "at issue."

I don't know FL Civil Procedure so I cannot advise you as to the specific rules used in your jurisdiction.

>
>2.  One of the outstanding issues are exact dates for the 14
>weekends.  She has proposed a schedule which we agreed to, and
>since we have agreed, the BM has now decided she doesnt agree.
> Should we request those dates that she proposed since we have
>several letters from her and her attorney (including emails)
>stating that these are the weekends they want or can they just
>discard them just like that and change their mind?

Depends on the jurisdiction. More than likely, unless you have the other party's signature on a document, you cannot hold her to any verbal agreement, because the burden of proof will be impossible to meet.

>
>3.  Can we include emails from her to be considered by the
>judge when we request the final hearing? (for the purpose of
>showing that she was in agreement to these things, and changed
>her mind only once she got mad at him for requesting one of
>his week long pareting sessions?)

Depends on whether you can authenticate the emails as having actually been authored by the other party. If the emails are stored on a commercial server, such as yahoo.com or msn.com, then you could show the judge that they are stored there and that you cannot possibly modify them. However, if they are stored on your local computer, as would be the case with AOL's personal filing cabinet, then the emails could be modified by you, and therefore could be deemed unreliable and inadmissible.

Proving an email is not as easy as you think it might be.

>
>4.  Can we include correspondence from the father to the
>mother to be considered by the judge when we request and set
>our final hearing?

Yes, as long as you can prove that it is what you purport it to be.

>
>5.  What will the judge consider "a week"?  She insists a week
>is 5 days (monday through friday).  And at most, could be
>added to a weekend, and only be Monday at 5 pm through Sunday
>at 5 pm.  By our definition, a week is (7) 24 hour periods.
>So Monday From 5 pm until Sunday until 5 pm.  

I don't know. That's up to the rules of your jurisdiction.

>
>6.  She also insists that for our week long visitation to be
>more than 5 days, it must override one of his weekends (taken
>in conjunction with a weekend of his).  Our agreement
>specifically states "NCP gets 14 weekends.  In addition to the
>14 weekends, the NCP gets 3 week long visits, one to occur
>during the Fathers day Period, one at Christmas, and one
>during the NCPs vacation time.

This is di minimis. Don't get hung up on details. The judge isn't going to burn one of your weekends to give you a holiday.

>
>7.  With the way the week long visits are worded, would you
>say that the NCPs week to occur during his vacation time and
>during the "fathers day period" are at his discretion?
>Meaning, he can take it whenever he has vacation time, and so
>long as this doesnt interfere with any specific dates that she
>is allowed? (Fourth of July, etc).  She is refusing to allow
>the fathers day week to occur the week starting on fathers day
>and the 7 days after because it would actually give NCP 7 days
>for fathers day, which includes the childs birthday, and the
>very next day is NCPs birthday, which he actually gets.

You need to lay out your version of the plan specifically, tell the other attorney in writing that you believe that your plan is reasonable, and then state that if the other parent wants to change things, that you will consider it only if the result does not cause you to lose any time with the child.

Stand your ground, unless the other party is willing to give something up to get what they want.

>
>8. Last question (Sorry!).  NCPs birthday.  It doesnt specify
>when this begins and ends - only that the NCP shall be allowed
>to spend his birthday with the child.  What is a typical
>starting/ending time for this?  We assumed 7 pm the day before
>to begin and ending at 9 am the following day (or something
>along those lines).  She is saying he gets to spend part of
>that day... which is not reasonable because there is 8 hours
>travel time.  Theres no way he can be transported the day of
>both ways and still spend any time with his father.  What
>would be a reasonable request in the hearing?  

Specify it.

>
>edited to add:  just got a copy of the court order in the
>mail, and were ordered to a "settlement conference" before
>setting the final hearing.  We tried setting it , and her atty
>refused to do it with us as pro se.  Now what?!

You write a letter. Something like this:

By Fax to ???-???-????; original to follow by U.S. Mail

Dear Attorney,

Per our phone conversation of ??/??/??, you have stated that you are refusing to set a settlement conference as ordered by the court, unless I am represented by an attorney. As I am representing myself, your request is unreasonable. I am available for a conference on the following dates and times:

(list 3 dates and times)

If you do not choose one of the above dates and times or contact me in writing with some alternative by ??/??/?? (5 days) , I will assume that it is your intent to willfully violate the court order and I will file a motion for contempt against you and your client to compel your cooperation.

Frankly, I do not understand your unwillingness to act in good faith on this issue, and I would appreciate an explanation as to why you seem to believe that I should not be treated with the same courtesy as I have extended to you.

If you have any questions or concerns, please do not hesitate to contact me immediately.

Sincerely,

YOURNAME
(Petitioner/Respondent) Pro Se

Now, the above letter assumes that you know how to file a contempt motion. If you don't, and your opponent calls your bluff, then you're SOL. The availability of a legal remedy is only as good as your ability to obtain it.

The point is, that from what I've read so far, you're outgunned, and you're attempting to fight a battle with a handgun, when your opponent has a tank. Unless you are very familiar with courtrooms and legal process, anyone who attempts to go pro se against an opponent represented by legal counsel, is gonna get creamed.

Let me repeat that so it sinks in. You're gonna get creamed.

Hire a lawyer.

[TwoBoys]

Wow... THank you so much for taking the time to answer all of these.

So far - both parties do NOT agree on the outstanding issues.  

It goes something like this:  They propose the outstanding issues, we agree (when i say we i am referring to my fiance primarily), and then they change their tune.. add something thats never been discussed or whatever.

Same goes for proposed visitation dates.  THey propose a set of dates, we agree, they change their mind.

Since the original papers got filed over a year ago, and this has been the way its been going for the year + since then, its obviously their intention to stall at all costs.  What they gain by stalling im not sure, except they know the judge will award more than theyll ever be able to agree to give in, and the longer they can keep that at bay, the better for them (Im assuming).  

After looking into it a bit more, we do have not only emails, but also correspondence from her atty to our (old) atty.  No signatures, it was just sent via mail from one atty to another enclosed with a letter saying this was their proposed visitation schedule.


That said:

1.  Could correspondence from her atty to our (old) atty be used to show that they agreed to it, and to try to hold them to that proposed schedule?

2.  Would excessive amount of travel in a short amount of time for a child under the age of 2 be likely to be considered by the judge as a justifiable reason for putting two visitations together (ex: his fathers day week should start ON fathers day, so that it ends the day before fiances bday, which he also gets according to the SPA, which results in far less travel for the child, rather than her request to have the fathers day week begin earlier, end earlier, and the child be allowed to travel 16 hours in one day (or even 2) for him to exercise his bday).

3.  Ive done a little research, and there is a form that specifies what the outstanding issues are (just a general request for final hearing form) but it doesnt seem to require both signatures... only the signature of the party that originally filed the motion (which would be fiance).  Could the other party object?

Thank you so much, your help is greatly appreciated.  We are looking into an attorney, unfortunately, her counsel has an "interesting" reputation, and people are charging us extra to have to deal with him specifically = ironically not because hes good, but because (as they put it), he spins his wheels too much.  What should be a 10 minute hearing turns into an hour long hearing, phone calls never get returned by his office, he makes absurd requests, and encourages his clients to do whatever they please, including denying visitation when they dont get their way.  This has come from 4 attorneys in two different counties so far.  All of them say the same.  The most recent one took a look at our file, read a few of her attys correspondence, a few of hers, and said they wanted $2k to just read up on the file, and an add'l $2k to close out our case!

Help!  

TwoBoys