Motion for therapy?

[mango]

Dear Soc,

Ohio, SD age 11, joint custody, BM school district.

BM- single, unemployed, lives in apartment supported by parents, and is in school for past 5 years, has 1 masters and 2 bachelors, and currently in school for another Masters.

BF- married, with 3 kids, (half siblings to SD). Stable job, owns home.

We are on our third parenting order, always joint custody. (In the past BM has moved from various states)

We recently went to court over the mother wanting the child to participate in a (year round) swim club that meets daily, and has long weekend swim meets. BF did not agree to the club, and BM took him to court for contempt. (Plus child is already in flute, piano, and school plays, very busy as is)

Final outcome was father not in contempt.

Now BM filed a motion for sole custody stating that father is consistently non-compliant with taking their child to her activities. Says the child has expressed her desire to participate in the activity. (Which she has been highly pressured by her mother). Wants a guardian appointed, and the child to be interviewed in judges chambers.

She says the child wants to live with her, says the going back and forth is "too hard on her", and that she is "miserable" at BF house, Which is so, not true. She is happy, happy, until she has her BM on the phone, and then she reports negative feedback to BM. I think she wants attention from her BM that way.

BF suggested family counseling, and BM rejected the idea.

Q:
1.) Since we already went to court over the swim issue, can we have this whole thing tossed as petty or something? Since he does completely cooperate in all her other various activities.

2.) Can (we) BF file a motion for family counseling, for 6 months or so?

3.) If BF wants to keep The parenting agreement as is, and since "no significant changes" have taken place, can't we just request to keep this agreement as is?

4.) Will it be automatically tossed because the BM filed the motion?

Thank you.

[socrateaser]

>Q:
>1.) Since we already went to court over the swim issue, can we
>have this whole thing tossed as petty or something? Since he
>does completely cooperate in all her other various
>activities.

If she is asking for a new custody hearing she has the burden of show a substantial change in circumstances affecting the child's best interests. That means "clear and convincing" evidence that the current custody arrangement is not in the child's best interests.

Post the EXACT TEXT of the BM's affidavit/declaration in support of the motion.

>
>2.) Can (we) BF file a motion for family counseling, for 6
>months or so?

You can request this as an alternative. But, do you think that it's necessary? You may be defeating your own case, if you believe that this is merely retribution for losing the contempt hearing, by basically agreeing that there is something wrong. You may be better off going into court and saying, "Your honor, I don't know what Ms. X is talking about. The child appears well adjusted and I bring her to all of her extra-curricular activities."

>
>3.) If BF wants to keep The parenting agreement as is, and
>since "no significant changes" have taken place, can't we just
>request to keep this agreement as is?

See above.

>
>4.) Will it be automatically tossed because the BM filed the
>motion?

I don't read tea leaves. Sorry.

[mango]

3 motions total:

Motion of defendant for reallocation of parental rights and responsibilities.

Now comes Defendant XX and moves the court for an Order reallocating parental rights and responsibilities for the minor child of the parties, and specifically for an Order terminating Shared Parenting and granting sole custody to Ms. X for reasons set forth below:

Memorandum
It is no longer in the best interest of the child for the parties to exercise Shared Parenting. The defendant (father) consistently failed to cooperate with Plaintiff concerning extracurricular activities in which the child wishes to participate. Contrary to the best interests of the child as well as the child's expressed desire, Defendant continuously refuses to allow her to participate in extracurricular activities during his parenting time.
Further evidence will be adduced at hearing.

also:
Motion for defendant to interview the minor child in chambers.
Now comes Defendant and requests pursuant to R.C. 3109.04)(B)(1) that the court interview the minor child, XX, in the chambers regarding her wishes and concerns with respect to the allocation of parental rights and responsibilities.

Memorandum:
In determining the child's best interest for purposes of Defendants Motion for Reallocation of Parental Rights and Responsibilities, it is necessary for the court to interview the child in chambers regarding her wishes with respect to such. XXX is a mature eleven year old girl and has sufficient reasoning ability to express her wishes and concerns.


also:
Then there is a motion for a Guardian ad litem:
Memorandum
The needs of the minor child are not being met due to ongoing conflict between the parents. It is necessary that a Guardian ad litem be appointed immediately to safeguard the best interests of the minor child. Further, Defendant has requested that the court interview the child in the chambers. Therefore persuant to R.C. 3109.04)(B)(2)(a), the court must appoint a Guardian ad litem for the child.
>>>

My new questions are.
1.) Since her primary complaint is the activities, and we already went to court over this as a "contempt hearing" and it was dismissed, can't we simply state that this has already been ruled on??

2.) You wrote "she has the burden of show a substantial change in circumstances affecting the child's best interests. That means "clear and convincing" evidence that the current custody arrangement is not in the child's best interests. "

-my question is, do we still need to go through all the legal stuff, evals, guadians, in order for her to evidence this? Or will she have that Burden to prove the day of her request for her motion.

3.) Can we file "vexatious litigant" against her for just being a sore loser (so to speak).

[mango]

1.) If we hold our ground to keep the parenting agreement as is, will it be up to the court to "terminate" the plan?

2.) If we counterfile for sole custody does it then change the dynamics of the case, and void the agreement, because now both parties wish to terminate it? I guess my thinking is we might be better off holding ground, because thenif  the court would have to terminate the plan they would be hard pressed to do so without a real purpose.

I don't  think an 11 year old mad a dad because she be in a swim club is good enough.

[socrateaser]

>>My new questions are.
>1.) Since her primary complaint is the activities, and we
>already went to court over this as a "contempt hearing" and it
>was dismissed, can't we simply state that this has already
>been ruled on??

In order to know if the facts surrounding the activities are already ruled on (res judicata) and thus barred from relitigation, I would need to read the exact text of the contempt charges. Even if the prior facts are barred, the new motion could be supported by new evidence. But, as the motions do not contain any supporting evidence, there's no way to tell until the motion is heard.

The problem is that it appears that the basis for all of the motions is that the child wishes to testify as to her unhappiness with the current custody arrangement. This could be extremely damaging, depending on which way the child is leaning. Frankly, I find it difficult to believe that you are completely unaware of whether or not the child is happy.

Seems like you should know that this was coming.

>
>2.) You wrote "she has the burden of show a substantial change
>in circumstances affecting the child's best interests. That
>means "clear and convincing" evidence that the current custody
>arrangement is not in the child's best interests. "
>
>-my question is, do we still need to go through all the legal
>stuff, evals, guadians, in order for her to evidence this? Or
>will she have that Burden to prove the day of her request for
>her motion.

If the child testifies and her testimony is that "I hate my Dad cause he won't let me be on the swim team or the X or the Y," etc., then that will probably meet the burden of proof.

>
>3.) Can we file "vexatious litigant" against her for just
>being a sore loser (so to speak).

She must lose these current motions first.

[socrateaser]

>1.) If we hold our ground to keep the parenting agreement as
>is, will it be up to the court to "terminate" the plan?

Yes.

>
>2.) If we counterfile for sole custody does it then change the
>dynamics of the case, and void the agreement, because now both
>parties wish to terminate it? I guess my thinking is we might
>be better off holding ground, because thenif  the court would
>have to terminate the plan they would be hard pressed to do so
>without a real purpose.

Question is why is the mother so certain that the daughter will give such damaging testimony as to make these current motions viable?

Once again, I find it difficult to believe that this is all taking you by surprise. But, if so, and this is really all about one swim team, then you can probably defend by merely stating that the child is singling out an event in order to get her way and that if the court allows this to occur, it will be enabling both mother and child and drive a wedge between father and daughter.

I think that the best defense here may just be to act astonished. However, if there are many incidences of your refusing extra-curricular activities, then this may be a control issue on your part and the mother may have a valid argument.

[mango]

Yes, we know she says she want's to live with her mom, but her actions at our home are of complete happiness, and she loves her siblings. She is like two different people. A happy one with us, but with her mom, she says she is unhappy with us.

They are in mediation, and the mediator said to bring the child to the next mediation so the father can witness the child saying she is "unhappy" at his home.

I think this is extremely damaging to a child, and a bad move on fathers part.

last question.

-I read that courts rule based on needs. But would a desire to be in a swim club hold more "needs" then the father-daughter and sibling relationships? It would be a pretty sorry court sytem if the put an activity before family.

[socrateaser]

>-I read that courts rule based on needs. But would a desire to
>be in a swim club hold more "needs" then the father-daughter
>and sibling relationships? It would be a pretty sorry court
>sytem if the put an activity before family.

The courts rule on facts and law. It's up to you to prove that your relationship is in fact more important than a swim team, or that the legal doctrine of the child's best interests favors the relationship over the swim team.

Why are you not taking the child to the swimming events? If your reason is that you think it's cutting into your time with the child, that's not a good argument, because the other parent loses time with the child during swim team in exactly the same amount as you do.

Your only valid argument is that the child doesn't actually want to be involved in swim team, but that the mother is forcing her to do so in order to frustrate your access to the child. And, a child would probably tell the judge if he/she felt forced to participate in an activity.

I think your better strategy would be to encourage the swim team participation by making certain that the child attends each and every event until she can't stand it any more. That gets rid of the motions, and keeps you in the 50/50 parenting time. It may be too late for this strategy now, but, that's what I'd be doing.

[mango]

The reason teh fatehr is opposed to it is because, she is already in weekly piano lessons, weekly flute lessons, school plays, and has homework, the child needs "some" time with family. She laredy has very little as it is.

Ths swim club overlaps her current activities as it is.

We offerd private lessons, or something that doesnt meet 6x per week, and has swim events each weekend.

It's just too much for a child.

Perhaps we should have let her "hate it" on her own. But it's too late now.

[mango]

The BM doesn't actually take her to these events herself on her parenting time, in fact she rarely spends her parenting time with her daughter, the child is usually taken care of by the grandmother. I

t's very odd that she fights so hard, but doesn't even give her child the time of day, except to bash the BF and us.

I know we can't ever prove that tho, it's all hearsay.

This seems hopeless, we might just have to give her sold custody and contact her again when she is 18.

Thanks for responses. :-)