Alleged physical abuse and visitiation, redux.

[iliveoutloud4me]

Dear Socrateaser:

     Just a few more questions, please? By way of rmeinder, The mothers Ph.D is in cognitive psych. We have decided we ARE going to go with the polygraph thing (after we do one privately and pass, that is). I think the other party will object, which is devoutly hoped for. Here are a few other points and then questions. As mentioned, she has a doctorate in psychology and maintains her son was abused by my husband. Says he hit him in excess of 40 times. My husband says it was two spankings, in a short time span, one which was 4-5 swats, the other 5-6 swats. There were no marks, welts or bruises, just some residual redness several hours later. This is the abuse.

     She maintains the boy was abused, but has never sought counseling for him. Now, 5 years later, she says he "slammed" him into a cupboard. Didn't happen. Witnesses can attest to that and a polygraph can too. Not only did she not ever seek counseling for him, she sent him on two visits since he was "slammed" in December. No one (including her attorney) has called law enforcement or social services. Just the motion for no more visits.

     As I have said before, this is the sixth time in two years she has taken us to court. Each time, she asks the court to order my husband into anger mgt for the 1999 spanking. Each time the court has refused. We have ever seriously entertained moving for custody mod because we didn't think it was in the boy's overall best interest. Now, were not so sure.

     This woman is so litigious, that the last time we had to go to court, In Jan, 2005, it was less than 24 hours from the death of her mother. We did not know this at the time, but do now. Also,  in January, when the Judge noted the oldest was turning 18 in a few months, she said--out loud--"Thank God!" We don't know if the Judge notice or not, but he probably did.  We also have an email where she states "I don't care if they (the boys) see you (their Dad) or not.

1.) Couldn't she have brought an ex parte motion to halt visitation? If the anser is yes, isn't it her curious that she didn't?

2.) Isn't her attorney mandated to have brought this to the attention of law enforcement and social services?

3.) If the answer to #2 is yes, doesn't the fact that she didn't say something?

4.) Knowing everything that you now know, should we move to modify custody? We are only going to be in court forty-eleven times more over visiting them, if we are still allowed visits.

5.) Am I correct in thinking that she has undermined her own abuse allegations by allowing visits (2) since the latest "abuse" episode in December?

Thanks so very much, again

[iliveoutloud4me]

Dear Socrateaser:

     Just a few more questions, please? By way of rmeinder, The mothers Ph.D is in cognitive psych. We have decided we ARE going to go with the polygraph thing (after we do one privately and pass, that is). I think the other party will object, which is devoutly hoped for. Here are a few other points and then questions. As mentioned, she has a doctorate in psychology and maintains her son was abused by my husband. Says he hit him in excess of 40 times. My husband says it was two spankings, in a short time span, one which was 4-5 swats, the other 5-6 swats. There were no marks, welts or bruises, just some residual redness several hours later. This is the abuse.

     She maintains the boy was abused, but has never sought counseling for him. Now, 5 years later, she says he "slammed" him into a cupboard. Didn't happen. Witnesses can attest to that and a polygraph can too. Not only did she not ever seek counseling for him, she sent him on two visits since he was "slammed" in December. No one (including her attorney) has called law enforcement or social services. Just the motion for no more visits.

     As I have said before, this is the sixth time in two years she has taken us to court. Each time, she asks the court to order my husband into anger mgt for the 1999 spanking. Each time the court has refused. We have ever seriously entertained moving for custody mod because we didn't think it was in the boy's overall best interest. Now, were not so sure.

     This woman is so litigious, that the last time we had to go to court, In Jan, 2005, it was less than 24 hours from the death of her mother. We did not know this at the time, but do now. Also,  in January, when the Judge noted the oldest was turning 18 in a few months, she said--out loud--"Thank God!" We don't know if the Judge notice or not, but he probably did.  We also have an email where she states "I don't care if they (the boys) see you (their Dad) or not.

1.) Couldn't she have brought an ex parte motion to halt visitation? If the anser is yes, isn't it her curious that she didn't?

2.) Isn't her attorney mandated to have brought this to the attention of law enforcement and social services?

3.) If the answer to #2 is yes, doesn't the fact that she didn't say something?

4.) Knowing everything that you now know, should we move to modify custody? We are only going to be in court forty-eleven times more over visiting them, if we are still allowed visits.

5.) Am I correct in thinking that she has undermined her own abuse allegations by allowing visits (2) since the latest "abuse" episode in December?

Thanks so very much, again

[socrateaser]

>1.) Couldn't she have brought an ex parte motion to halt
>visitation? If the anser is yes, isn't it her curious that she
>didn't?

Frankly, it's not real relevant. The court apparently decided the spanking issue long ago, and I doubt that a competent judge would allow it into evidence again, unless there was some new evidence of abuse.

>
>2.) Isn't her attorney mandated to have brought this to the
>attention of law enforcement and social services?

No. An attorney is not obligated to communicate any confidential communication from a client, unless it relates to a "future" crime.

>
>3.) If the answer to #2 is yes, doesn't the fact that she
>didn't say something?

Irrelevant.

>
>4.) Knowing everything that you now know, should we move to
>modify custody? We are only going to be in court forty-eleven
>times more over visiting them, if we are still allowed
>visits.

I don't think you have a case, at the moment. You may, if you are charged with abuse and it is resolved in your favor, then you can sue for malicious prosecution.

>
>5.) Am I correct in thinking that she has undermined her own
>abuse allegations by allowing visits (2) since the latest
>"abuse" episode in December?

Probably. But, it's not clear to me from your post what action is currently pending in court, so, please enlighten me about the allegations made against you, and the requested remedy.

[iliveoutloud4me]

>>1.) Couldn't she have brought an ex parte motion to halt
>>visitation? If the anser is yes, isn't it her curious that
>she
>>didn't?
>
>Frankly, it's not real relevant. The court apparently decided
>the spanking issue long ago, and I doubt that a competent
>judge would allow it into evidence again, unless there was
>some new evidence of abuse.
>
>>
>>2.) Isn't her attorney mandated to have brought this to the
>>attention of law enforcement and social services?
>
>No. An attorney is not obligated to communicate any
>confidential communication from a client, unless it relates to
>a "future" crime.
>
>>
>>3.) If the answer to #2 is yes, doesn't the fact that she
>>didn't say something?
>
>Irrelevant.
>
>>
>>4.) Knowing everything that you now know, should we move to
>>modify custody? We are only going to be in court
>forty-eleven
>>times more over visiting them, if we are still allowed
>>visits.
>
>I don't think you have a case, at the moment. You may, if you
>are charged with abuse and it is resolved in your favor, then
>you can sue for malicious prosecution.
>
>>
>>5.) Am I correct in thinking that she has undermined her own
>>abuse allegations by allowing visits (2) since the latest
>>"abuse" episode in December?
>
>Probably. But, it's not clear to me from your post what action
>is currently pending in court, so, please enlighten me about
>the allegations made against you, and the requested remedy.

Dear Socrateaser:

     We are set to go to court on the 9th of March. They are asking for the following: That my husband be denied further visitation until he has attended parenting classes and gone through an anger management class. Once that has happened, then they say they want family counseling (her, him and the kids) and after that, supervised visitation at a women's shelter. She (the ex-wife) has asked for anger management course attendance in five different hearings since their divorce in 2002. At first visitation went alright. Then he met me and the litigation started.  Our first court date was four days after our wedding.

    Her asking for the anger mgt course prior to this past December was based on my husband spanking the son (12 at the time, now 17) in 1999. This happened while they were married. There were two spanking incidents within hours of one another, one with 4-5 swats, the othere 5-6 swats. No marks, no welts, no bruises, no hand imprints. The boy's butt was still red several hours later though,  and my husband--who felt bad about the severity of the spanking--went of his own volition to an anger mgt course, which he completed successfully. I should add that the woman who ran the course is willing to testify in the present matter for my husband.

     In the 5 court cases prior to this one coming up, the ex has claimed she was "frightened" for her children and wanted my husband to go through another anger management course. At all five of those hearings (none were for alleged abuse, they were for "clarification" of the Court's visitation orders, but she through with the anger mgt thing anyway, for good measure). Orders which had all gone in my husband's favor due to her interference. The orders didn't need clarification, she just kept hoping the Judge would say something different if she kept at him. He didn't. Furthermore, he found no need for my husband to attend another anger management course for the 1999 spanking.

     This past December, during a visit, there was an alleged incidence of physical abuse. The ex, as well as the child purported to have been abused, claim my husband "slammed" the son (17) into a cupboard. It isn't true. My husband walked (advanced in a po'd dad fashion) toward the kid, who retreated, walking backwards until he came to a stop when he reached the cupboard. My husband then laid his forearm across the boy's chest, restraining him.  The ex and the son claim this was witnessed by my husband's two younger sons. We don't know what their story will be. It was also witnessed by my son (20), their step-brother. My husband said there was no slamming, no shoving, no pushing, no physical force whatsoever. My son says the same thing.

     This is the event my husband is willing to take a polygraph for. This is the incident that purportedly happened in December. They have visited twice since then. Now, ostensibly, she has reason to ask anew about the anger management, etc. Ok, so those are the allegations and the remedies. WE want to ask for a polygraph to be admitted, both  about the spanking in 1999 (which, even though the Court has denied it 5 times, it still has grown in significance in their head to a severe beating of "at leat" 40 strikes). We don't care about her head, but he has two remaining children, who are starting to believe it.

    We want the polygraph AND a full scale evaluation for all parties done by a neutral professional experienced in all of the issues. We want the evaluator to be court appointed, since she (the ex) has a PhD in psychology. As a psychologist herself, she is obviously familiar with the testing, etc., and can only come out looking good. This could be neutralized though by an impartial pro who knows their way around these types of problems. In any event, we aren't psychologists and the boys aren't. I guess, if, after the evaluation, the evaluator felt a change in custody was necessary to prevent any more bad stuff, we would probably go for it then. So, now for a few more questions.

1.) Her attorney isn't considered (by law) to be a mandated reporter?

2.) Is there any way, if we get through this, that we can stop her from taking us back to court? We have had to refinance our house already.

3.) Now that you know the rest of the story, I'll ask this one again: Hasn't she undermined her own case by allowing two visits to take place between the alleged slamming in December and now?

4.) The question in the previous post, about an ex parte hearing, you answered based on the spanking. Can I ask it again about what she alleges happened in December?


Thank you so very much Soc. I appreciate all of the help you have given us. You are a tiny ray of hope in this whole thing. Thanks again.

[socrateaser]

Actually, the story that I need to know is what is contained in her motion and supporting affidavit. Until you post the EXACT text of the allegations and supporting facts made by the other party, I cannot accurately answer your questions.

[iliveoutloud4me]

>Actually, the story that I need to know is what is contained
>in her motion and supporting affidavit. Until you post the
>EXACT text of the allegations and supporting facts made by the
>other party, I cannot accurately answer your questions.

Dear Socrateaser:

The ex wife's motion is as follows (verbatim).


 1.  An Order finding the Plaintiff in Contempt of Court for swearing at the children, belittling the children, both individually and in front of the others, belittling the children's mother in front of them , belittling the children's maternal grandparents (both of whom are deceased) to Y, for name calling the children, using words such as "lying piece of cra...,idiot, and dumb ass," and physically assaulting X over Christmas by slamming him several feet into the kitchen cabinets, all in violation of this Court's Order dated December 10, 2003.

 2. An Order denying further visitation until the Plaintiff enrolls in and completes both parenting and anger management classes.

 3.  For an Order requiring the Plaintiff, the Defendant and all three children to undergo family counseling in Sioux Falls, with a facility capable of doing psychological testing if necessary, at Plaintiff's expense, to the extent that insurance does not cover the cost.

 4. When visitation begins again, for an Order establishing supervised visitation in Sioux Falls at the Women's Resource Center, at Plaintiff's expense, until such time as the Plaintiff has successfully completed both the parenting and the anger management classes, and Plaintiff's abusive and contumacious behavior ceases completely.

 5. For an Order conditioning the Plaintiff's unsupervised visitation upon the recommendations of the family counselor.

 6. For such other and further relief as to the Court may appear just and equitable.


Affidavit In Support Of Motion

1.  My name is ex-wife. I reside at ex wife's house.

2.  There are three (3) minor children born to the Parties, whose names are X, age 17, Y, age 15 and Z, age 13.

3.  Since the last Court Hearing on Visitation in April 2004, my children have continued to experience ongoing problems with the Plaintiff. Their most recent visitation was the weekend of February 4-6, 2005. This was just one week after Mr. Doe and I were last in court regarding bill reimbursement.

4. During the ride home from Mr. Does's residence, on February 6, 2005 the kids revealed the John Doe continues to act in an angry, aggressive manner toward them and continues to create an environment that is physically threatening and emotionally damaging to the children, in violation of this Court's Orders.

5. X revealed that over Christmas visitation December 2004, through January 2005,  Mr. Doe was verbally assaulting Y. In an attempt to end it, X told John Doe that he didn't have to talk to Y like that. In response, John Doe called X an idiot. X told me that he (X) said,  "Don't ever call me that agian." John Doe responded by aggressively approaching him and physically slamming him into a kitchen cabinet several feet away. This assault was witnessed by all three children.

6.  Y said that later that day, he went into the kitchen to get a drink and John Doe said something that made hime cry (he was already emotionally fragile from the earlier assault) and then stood in a physically intimidating manner trying to prevent him from leaving the kitchen.

7.  X said that during the ride from John Doe's house to mine on February, X, 2005, John Doe called him a "lying piece of cr.." one time and a "dumb-ass" repeatedly.  X Told John Doe that at some point the judge was going to listen to him. John Doe responded with, "Bring it on." These exchanges were witnessed by all three children. X was distraught by what he had experienced during visitation and said he did not feel as though he could participate in visitation any more. He continued to be upset long after we arrived home and was unable to sleep until sometime after 12:30 a.m.

8.  Y complained that during the February visitation, John Doe talked to him alone to: complain about John Doe's financial situation; complain about my financial situartion; denigrate me, both of my parents and my family in general, and to badmouth X. Y said any time John Doe got him alone, he was badmouthing X. John Doe told Y that I have implanted false memories in all of the kids. Y told us that he would gladly change places with X so Y wouldn't have to listen to all othe things John Doe tells him.

9. Z told me that John Doe sat him down to explain that since John Doe was going to have to pay $600 to replace X's property that was lost when John Doe faild to close the tailgate of his truck, Z will have to work that money off by emptying the dishwasher for $1. a time and mowing the lawn for $5 per time. John Doe also complained once again to Z that I took him through a bunch of unnecessary medical tests solely to run up high bills for John Doe to have to pay.

10. X, Y and Z do not have the emotional reserves or life experiences to handle the turmoil to which John Doe insists on exposing them.

11.  Y told me that during the July visitation, when Y was alone with John Doe on an errand, John Doe badmouthed both X and Z. When Y responded that he didn't want to hear him badmouth his brothers, John Doe belittled Y  with taunts of " Oh, Y, don't listen to me badmouth." Y did not respond to the taunt so John Doe said, "You don't like me at all, do you?" Again Y did not respond so John Doe said, "And I know why. It's because of your mother."

12. There have been several times while transporting the kids either to or from my house that John Doe has been agitated and angry, ranting and raving so that the kids do not feel safe in the car. The most severe example of this occurred in July 2003 when he was angry at me and he verbally assaulted X  and me so much that it reduced both X and Z to tears, but still he did not stop.

13. In July 2004, John Doe and X had an altercation before it was time to leave to return from visitation. The altercation was bad enough the X called me and said "You have got to come get me. I am not getting in the car with him." X said that he did not feel safe to be in the car while John Doe was mad at him. Y also got on the phone to say that he didn't feel safe to be in the car while John Doe was like that. Aside from the danger of the driving, they did not wish to relive the experiences of the previous summer. I spoke to  John Doe and offered to come and get the kids. He refused.  X called 911 in an attempt to have a sheriff remove him from John Doe's house so that I could come get him, but he was unsuccessful.

14. On December, 2004, John Doe drove to my house with the tailgate of his truck down and X's things were lost. The kids said that on the trip from John Doe's house to mine, John Doe complained that he wasn't going to replace anything and that I had run up lots of unnecessary medical bills and was trying to make him pay but he wasn't going to (John Doe has never responded to me about the bills). Z told me that he was hurt by John Doe's attitute regarding the medical bills.

15. All three kids have expressed that they are afraid to be in the car with John Doe when he is agitated and angry. They do no feel safe for the drive and they do not want to endure a verbal assault when there is no avenue of escape.

16.  Z admits to being terrified of John Doe and said that on one visitation John Doe asked him if he was afraid of him. Z responded, "Yes" to which John Doe responded, "That's because of your mother." Z is afraid that John Doe is going to hurt X and that he is capable of turning his anger toward Z.

17. All three kids complain about John Doe's angry glaring and physically intimidating posturing when he is mad.

18.  John Doe has a history of physical, emotional and verbal abuse that has continued unabated afer his first attempt at anger management in 1999. Between October 1999 and the end of our marriage in July 2002, he never physically touched any of us in anger, but his threatening posturing and looks escalated, as did his verbal abuse. I do not feel that the kids are safe during visitation. I have been unable to resolve these issues. I need the Court's help to protect my children.

19. All three children have expressed a desire to talk with Judge XXX regarding this problem.

Further your Affiant sayeth not.

And that is all she wrote.Can you give some sort of opinion? Some of these assertions are based on kernels of truth, some are outright fabrications. Most are assertions we know nothing about.  Let me know if you need to hear the other side of the story, or at least the part you haven't already heard.

Thanks much Happy reading

[socrateaser]

It appears that the entire affidavit (except for the 911 call, which may be independently verified if the recording of the call is submitted as evidence) is nothing but inadmissible hearsay, unless the children testify.

Nevertheless, even if the children are poisoned against you by the mother, proving that this is parental alienation rather than actual abusive behavior is very difficult.

It appears that some of the allegations are not far from the truth, and that there is definitely a load of hostility going around. There really isn't a good solution to this circumstance -- a bad solution woulod be for the father to back off and leave visitation up to the kids.

You can ask to take a polygraph and ask that the children and the mother do so as well, but if they all refuse, then that will end that line of attack. I would still make the offer, because it will give the judge something to think about, however, based on the facts that you state here, it's possible that the father will fail the test, because he IS obviously angry.

I'm sure that the mother is also angry -- she just knows how to use that anger to get what she wants, whereas the father does not.

Anyway, that's about all I can think of at the moment.

[iliveoutloud4me]

>It appears that the entire affidavit (except for the 911
>call, which may be independently verified if the recording of
>the call is submitted as evidence) is nothing but inadmissible
>hearsay, unless the children testify.
>
>Nevertheless, even if the children are poisoned against you by
>the mother, proving that this is parental alienation rather
>than actual abusive behavior is very difficult.
>
>It appears that some of the allegations are not far from the
>truth, and that there is definitely a load of hostility going
>around. There really isn't a good solution to this
>circumstance -- a bad solution woulod be for the father to
>back off and leave visitation up to the kids.
>
>You can ask to take a polygraph and ask that the children and
>the mother do so as well, but if they all refuse, then that
>will end that line of attack. I would still make the offer,
>because it will give the judge something to think about,
>however, based on the facts that you state here, it's possible
>that the father will fail the test, because he IS obviously
>angry.
>
>I'm sure that the mother is also angry -- she just knows how
>to use that anger to get what she wants, whereas the father
>does not.
>
>Anyway, that's about all I can think of at the moment.
>
>


Dear Socrateaser:
     I'm glad you're feeling a little better. Just an update. My husband took--and passed--a polygraph last Wednesday. I don't know whether it will be admitted or if the judge will order another or skip it entirely, but we are hoping to let him know someway, that my husband did pass the polygraph. The polygrapher asked him specifically about the incident  in December (which was, by the way, also witnessed by my 20 year old son) and the incident in 1999 that they allege was a lot more than a spanking.

1.) Does this knowledge change anything in your opinion about what might happen?

2.) Any suggestions as to getting the already taken polygraphy and request for another if necessary before the judge? We are sure the other party will not stipulate to it's admission.

Hope you continue to recuperate and thanks a million.

[socrateaser]

>1.) Does this knowledge change anything in your opinion about
>what might happen?

Yes, assuming that everything is in order with the test and the questions are relevant, then my next move would be to suggest that the mother and the son who alleges the abuse also take a polygraph. If they refuse, then the judge, may just dismiss. At the very least, the judge will ask a number of hard questions of the mother and son, if he is available to testify.

>2.) Any suggestions as to getting the already taken polygraphy
>and request for another if necessary before the judge? We are
>sure the other party will not stipulate to it's admission.

I think that I might question the mother on her expert opinion of polygraphs, and further on whether, in her expert opinion, she believes that her ex husband is a pathological liar capable of beating such an examination.

I might even bring in some authoritative literature on polygraphs and ask her for an opinion about that. If you can get her to admit that polygraphs are nearly impossible to beat, and that her ex is not the type of personality to be able to beat it, then I would ask her if her ex were to take a polygraph, would she accept the results?

If she says yes, then I'd offer the polygraph. If she changed her tune, the judge wouldn't believe anything the mother said.

[iliveoutloud4me]

>>1.) Does this knowledge change anything in your opinion
>about
>>what might happen?
>
>Yes, assuming that everything is in order with the test and
>the questions are relevant, then my next move would be to
>suggest that the mother and the son who alleges the abuse also
>take a polygraph. If they refuse, then the judge, may just
>dismiss. At the very least, the judge will ask a number of
>hard questions of the mother and son, if he is available to
>testify.
>
>>2.) Any suggestions as to getting the already taken
>polygraphy
>>and request for another if necessary before the judge? We
>are
>>sure the other party will not stipulate to it's admission.
>
>I think that I might question the mother on her expert opinion
>of polygraphs, and further on whether, in her expert opinion,
>she believes that her ex husband is a pathological liar
>capable of beating such an examination.
>
>I might even bring in some authoritative literature on
>polygraphs and ask her for an opinion about that. If you can
>get her to admit that polygraphs are nearly impossible to
>beat, and that her ex is not the type of personality to be
>able to beat it, then I would ask her if her ex were to take a
>polygraph, would she accept the results?
>
>If she says yes, then I'd offer the polygraph. If she changed
>her tune, the judge wouldn't believe anything the mother
>said.

Dear Socrateaser:

I loved your advice. We plan on using it exactly as you formatted it, after I've done a little research on the validity of the polygraph. Wish us luck! We will be sure to tell you the "rest" of the story as it unfolds.
Many thanks