Motion or Petition

[reagantrooper]

Soc:
My divorce decree gives me 2 weeks of time with me Daughter during the summer I want more like 1/2 the summer 5 weeks. My Daughter is going on 12. The 2 weeks has been in place since 97. I sent me X a proposed agreement and she rejects it and says "the way it is is the way it will stay".

I have a very strong relationship with my Daughter never ever missed a "visitation". Damn near every summer my Daughter ends up spending more than the 2 weeks with me. This happens when the X has some sort of conflict no sitter etc (when its convient for her). I never turn down "extra" time.

I proposed a formal agreement so I did not have to depend on the whims of my X. When I sopke to her about it she refered me to her atturney I called him this AM and he just flat out says "we reject it" wont say why or offer a counter offer of any type.

The relivent facts as I see them are My strong and consistant relationship with my Daughter, My X asking me to take more weeks in the summer with my daughter over the years, my daughter relationship with her 1/2 sibling and step siblings, my daughter desire for more time

1. Do I file a motion to modify the permanant stips or a petition for more time?

2.Do you agree with the relivent facts as I see them?

3. Would/Could you use the Xs unwillingnes to cooperate against her?

Thanks a bunch!!!!!!!

[socrateaser]

>1. Do I file a motion to modify the permanant stips or a
>petition for more time?

Whether to file a motion or a petition depends on the rules of civil procedure for your jurisdiction, so I don't know how to answer your technical question.

>
>2.Do you agree with the relivent facts as I see them?

No. Getting a significant change in custody requires clear and convincing evidence of a change in circumstances affecting the child's best interests. I don't see that anything in the child's life has changed in any significant way. You are not even telling me that the child wants to spend half the summer with you. Therefore, you will lose.

>
>3. Would/Could you use the Xs unwillingnes to cooperate
>against her?

Nope. Her unwillingness to change the schedule does not rise to a contempt, nor does it demonstrate, on its own, an affirmative desire to act against the child's interests. This is not to say that it is not in the child's best interests to see you more during summer, but there is no proof that the mother's acts are contrary to that interest, because you must prove that the child's best interests is to see you more often.

Absent a strong statement from the child, or some extremely hostile action by the mother, you don't have a case, in my view.

[reagantrooper]

Soc
Thanks for the input I value it!

However I am going to go forward with the motion and see what the Judge says. The way I see it I have much to gain and nothing to lose.

My daughter has said that she wants to spend more time having said that I dont think I would dragg her into court and make her take sides for this issue. I left out that I am in NH.

Out of the last seven Summers the X has asked me and I have had our Daughter for 1 "extra" week in 98,00,04 and for 2 "extra" weeks in 99,01,02,03 . These weeks where at the request of the X. At some point I did say to the X that I would take our Daughter anytime she needed.

1. If the X argues that it would be against our Daughters best interest for me to have more time with my daughter in the summer. Is'nt it true that the above fact would contrdict that argument?


2. Just to clarify: Do you believe the change in circumstances standard applies to a change in "visitation" as it would to a change in custody?

Thanks again

[socrateaser]

>1. If the X argues that it would be against our Daughters best
>interest for me to have more time with my daughter in the
>summer. Is'nt it true that the above fact would contrdict that
>argument?

I think this would weigh on your side, however, suppose that she denies that you had the child during those periods of time -- can you prove that you did, other than by your own statement? If you can't, you will lose this point.

>2. Just to clarify: Do you believe the change in circumstances
>standard applies to a change in "visitation" as it would to a
>change in custody?

Depends upon the jurisdiction. Courts usually have discretion to change visitation schedules, but, you will still require some credible evidence to show that the child's interests will be served, and, so far, what you've presented to me doesn't prove it.

The court doesn't like to decide based only on the arguments of the parties, and without some third-party expert evaluation. So, you may get stuck with an order to have the child evaluated ($$$).

I don't know. Your case seems a crap shoot to me, and I don't like going to court rolling the dice. Clients get pissed when they lose.

[reagantrooper]

Soc

If you are the oposing counsel against me in this matter and I argue that it is in the best interest for my Daughter to have more time with her "other" family during the summer.

Assuming that the relationship between the Dad, step Mom, 1/2 siblings, step sibling is well established and consistant. I am not just talking a year or two I am talking my Daughters hole life.

1. What could possibly be your argument thats its not in her best interest?

Thanks!!!

[socrateaser]

>Soc
>
>If you are the oposing counsel against me in this matter and I
>argue that it is in the best interest for my Daughter to have
>more time with her "other" family during the summer.
>
>Assuming that the relationship between the Dad, step Mom, 1/2
>siblings, step sibling is well established and consistant. I
>am not just talking a year or two I am talking my Daughters
>hole life.
>
>1. What could possibly be your argument thats its not in her
>best interest?

"Your honor, the child has expressed that she does not wish to spend any more time with her father."

"Your honor, the child is involved in a number of summertime activities which would be interfered with if her father is granted more time."

"Your honor, the child is a girl and she benefits significantly from maximized time with her mother as she grows into adolescence."

I could go on and on and on. Not saying that any of it is true, only that there are arguments that can lead to the court ordering an evaluation which will cost you a load of dough. You need to find out what the child wants. If she wants more time with you, that is your best argument.

[reagantrooper]

Soc

I am going to focus on her wanting more time with us. I think I will ask her tonite just to clarify what she wants. If she says she wants more time and I believe she does based on what she has said before. I will forget about the rest of the stuff I had in mind and "hammer" that point home.

Thanks for your input it has helped a bunch. I will post the outcome after i win!:-)

Thanks again!

[reagantrooper]

Whoops! I inadvertantly edited your post instead of responding...SORRY!

[socrateaser]

Are you certain that you must begin this action as a petition, with a new case number, rather than a motion using the previous case number? The question is important, because what you have written is a document that reads like a motion, but is being called a petition.

In short, your pleading presently reads like you don't know what you're doing, and we want to avoid annoying the judge, first shot out of the barrel.

[reagantrooper]

Soc
Not sure. Spoke with one of my old Attorneys she believes I should be able to file a Motion so thats what I am going to do. If its wrong the clerk @ the court house will let me know.

1. Other than the title what do you think of the text?

Thanks