help and advice with petition for citation of contempt

[lovebug]

My child's mother has stated in a letter that she is refusing to go by the specific CO that she and I agreed to in mediation and sign my the Judge on May 2, 2005. The dates in question are for summer visitation in which each parent is to have equal time with the child during the summer. Each parent will alternate two weeks and two weeks and the last 2 weeks and 4 days will be shared equally. Mom insists that is not correct.

Order states, "Summer will be shared equally in divisions of two week periods. Eg. An eight week summer holiday will be shared two weeks with Mom, two weeks with Dad, two weeks with Mom, two weeks with Dad.  If the summer recess is less (or more) then the time will divided accordingly. Weeks will be counted as referenced earlier. The child's Birthday will continue to shared on an every other year basis."

On page #1 it states "Father has visitation every 1st, 3rd, 4th weekend counted from Friday after school until Monday before school"  This is what the referrenced early clause means. Both parties agree that summer vacations starts on May 20 after school and end on August 2 before school starts (which is the same manner that weekends are counted).

Mother has stated that she will not make child available until Saturday, June 4, 2005 at 6 PM. Which is 2 weeks 1 day and 3 hours instead of the ordered 2 weeks. Mom also insists that she will not split the last 2 weeks and 5 days into 9 for me and 10 days for her. She will allow me 1 day and 22 hours during the Sunday-Monday before school stars on Thursday, August 2, 2005.

I have written her a letter demanding an agreement between the two of us where each party has 37 days and a few extra hours ( Mom actually having a few more hours). Mom sent a letter today refusing my proposal and stating it's her way or nothing.

Mom states in her letter that she is to have 42 days and I am to have 35 days. When I actually counted the days and hours I will have 32 days and Mom will have 45 days. She stated that it's equal as far as she is concerned.

I have decided to prepare to file a petition for citation of contempt. I will have everything ready to file on Friday the 3rd if she refuses my time at 3 Pm. I will go straight to the court house and file before they close at 5pm. I cannot afford another $5000 for an attorney having just finish this last actions not even a motnh ago. I might be able to qualify for legal aid but they will have to put me on a pretty long waiting list. so por se is what I am thinking now.

Here is what I have:


                           Petition for Citation of Contempt

NOW COMES XXXXX, Petitioner in the above-styled action and files
this Petition for Citation of Contempt and shows the Court as follows:

1.    An order was entered in the Superior Court of Madison County as follows:
    The case name as it appears in the prior action is XXXXX vs. XXXXX; Civil action file number is XXXXXXX; filed in the Superior Court on     May 9, 2005.
A copy of that order is attached.  

2.   Respondent is subject to the jurisdiction of this court and may be   personally served with a copy of this petition and Rule Nisi at XXXXXXX.
3.   In the prior Order, Respondent was ordered to allow Petitioner to visit with the minor child but has failed to do so.

4.   Respondent was able to do what the Court ordered.  Respondent's refusal to do so is willful.

5.   Respondent should be held in contempt of this Court's Order and shall be confined to the common jail of Madison County until she purges herself of said contempt.

6.    Respondent should be ordered to reimburse Petitioner for the cost of service process.


WHEREFORE, Petitioner demands:

   (a)      That process and summons issue as provided by law;
   (b)      That Respondent be served with a copy of                        
                          Petitioners Petition for Citation of Contempt;
   (c)            That Respondent be held in contempt for failure to obey
                          the terms of the Court's order;
   (d)      That a Rule Nisi hearing be set ordering the Respondent to
                           come to Court and tell the Judge why Petitioner's  
                           Petition should not be granted;
   (e)      That Petitioner be awarded any other relief this court finds
                          right and proper.

This 3rd day of June, 2005.

               
            
                                      VERIFICATION

I, XXXXXXXX, personally appeared before the undersigned Notary Public, and say under oath that I am the Petitioner in the above-styled action and that the facts stated in the Petition for Citation of Contempt are turn and correct.

This 3rd day of June, 2005.




                                         RULE NISI

The foregoing Petition for Citation of Contempt having been read and filed, the Respondent is Ordered to Show Cause before the Honorable
____________________________________, on the________ day of___________, at_______.m. in Courtroom ______ why the prayers of Petitioner should not be granted.


This the _______day of _________, 2005.



__________________________________                                             Clerk

I have to get the service by sherriff paper at the clerks office. I will do that before the 3rd.

Does this look okay?

Is there anything else I need to do?

Is there any advice you can give that I can do or say that will strongly encourage mom to get with the program?

Is the letter that mom sent and sign evidence enough to get the contempt ordered by the judge if indeed she does follow through with her intent to deny proper exchange time?

If no what other evidence might be admissable/useful?

Thanks,

~D~

[socrateaser]

Before you get all worked up about the contempt, you need to make damn certain that your calculations are correct. The orders states, "divisions of two week periods," and that is the key phrase. This means that you are to alternate two week periods beginning with May 20 and ending August 2. The order does NOT mean that the summer vacation must be split exactly down the middle in number of days. Whoever has the last part of the summer that is less than two weeks, gets the child during that entire time period, even if the result is that the total number of days is not split exactly equally between the parents.

So, for the end of summer, your interpretation of the order is wrong, and you will lose this point.

As to the July 4 period, it appears that you should obtain the child on Friday July 1 at around 4PM, which would be when school ordinarily ends. So, here you may have a contempt. The problem is proving it, which you must do by "clear and convincing evidence," if you seek some sort of civil remedy (i.e., money penalty payable to you). If you seek a criminal penalty (i.e., imprisonment), then you need to prove your case "beyond all reasonable doubt." This is deceptively difficult to do in a custody matter, unless you have a disinterested witness willing to testify on your behalf, or someone with a video recorder taping the mother's refusal to turn over the child at the time and date required.

OK, so as to your motion itself, I do not know the requirements of GA contempt procedure, which is what I assume is your jurisdiction, as you have mentioned a Rule Nisi, which is a GA formality to obtain an oral hearing. But, further assuming that you have the general form of the document correct, then, you cannot obtain an imprisonment to be purged, because it will be too late, she will have already commited a contempt from which no purge can occur, and it could be months before your motion is actually heard on the contempt.

So, explain exactly which section of the orders were violated, and on what date and time, then allege that the violation was knowing, and with conscious disregard for the court's orders, and then ask for something other than imprisonment, i.e., a monetary penalty made payable to you for each day that the contempt occured.

Other than that, it looks ok.

PS. The letter from the other parent is not sufficient to show that a contempt has occurred. It only proves that she intended at the time that the letter was written, to ignore the court's orders -- not that she actually violated those orders.

[lovebug]

Okay I copied the papers from the Fulton County GA site in which they stated "jail until she can purge herself"

Here is a link to the page http://www.fultoncourt.org/family/forms/petit-5p.pdf

The reason I am using these forms is because Madison Co does not have froms or even a law library. They use the Univ. of GA law library which is in Clark Co. That library only has Clark co forms. I cannot find Madison Co forms anywhere. The leagl aid attorney said I could use Fulton Co's forms and change the county.

Legal aid would not help me because there is no alleged "physical" abuse involved.  I cannot afford a retainer again at this point.

My ex wife is the type of person that will attempt to get away with everything that she can possibilly think of. That is why we have to go through this again so close to final agreement.

I am not sure I agree with you about what my order says. I have talked it over with my former lawyer and she said it was to be shared equally in 2 week periods. And if there is more (or less) than 8 weeks in the summer then that time would also be shared equally. I can see your point, but my lawyer said that the intent of the order is to have child be with each parent an equal amount during the summer.

The former agreement I was to have daughter 6 consecutive weeks with Mom having the rest of the summer with me having eow weekends during the rest of the summer. I presented the two/two weeks at mediation because 6 consecutive weeks was too hard for our daughter to be away from Mom. I proposed 2 weeks with equal timeit was agreed. Mediator even told mom and myslef at mediation that each parent should have equal time.

There is 10 weeks and 5 days plus a few hours of summer break in my daughter's school district. Mom wanted first 2 weeks. But is refusing to turn child over at the conclusion of the two week period. She wants to keep the child until the following day at 6 pm. Dad has second 2 weeks. Mom has third two weeks and again wants to turn the child over one day and a few hours late. Dad has forth two weeks. Mom wants the next two weeks plus the 5 days and a few hours before school (excepting the Sunday through tuesday morning) "in order to prepare child for school". I'd be happy to have child only the during the last 5 days before school begins, and not split the 5 set of two weeks.

I will not bend on the pick-up delay that my is demanding on Saturday evening instead of Friday afternoon.I know mom is going to do one of two things. She will either not be home when I am supposed to pick-up our daughter or she will be home and start a huge fight in front of our daughter in order to upset the child enough to not want to come at all. I plan to record the exchange in either instance.

What are my options here?

can I change confinement to jail to a monitairy award payable to me on the form?

What type of monitary award would be appropriate $100? 500?

Is there anything else I can do to get this fixed?

Is there anyway to get back into mediation and have summer changed to every week exchanged with a specific date and time in order to have summer be shared equally and more easly enforceable?

Would I just need ex wife to agree to go back?

What should I do if I go at the correct time and mom and child are not home?

What should I do if I go at the correct time and mom starts an arguement and our daughter does not want to come with me?

My intent is not to harrass my ex wife. I just want both of us to go by the orders and try to get along, but that just seems impossible.

Thanks for your help.

~D~

BTW, you're correct we are in GA!

[socrateaser]

>I am not sure I agree with you about what my order says. I
>have talked it over with my former lawyer and she said it was
>to be shared equally in 2 week periods. And if there is more
>(or less) than 8 weeks in the summer then that time would also
>be shared equally. I can see your point, but my lawyer said
>that the intent of the order is to have child be with each
>parent an equal amount during the summer.

Your lawyer's and your interpretation may be correct, however, my point is that the order is not express enough in order to sustain a contempt, because the defendant can argue that her interpretation was reasonably different even if not correct, and therefore, that even if everything that the plaintiff alleges is true, defendant is not in contempt, because she did not have the knowledge that her actions violated the court's orders.

>
>The former agreement I was to have daughter 6 consecutive
>weeks with Mom having the rest of the summer with me having
>eow weekends during the rest of the summer. I presented the
>two/two weeks at mediation because 6 consecutive weeks was too
>hard for our daughter to be away from Mom. I proposed 2 weeks
>with equal timeit was agreed. Mediator even told mom and
>myslef at mediation that each parent should have equal time.

Communications that par part of Mediation are inadmissible and privileged, so it doesn't matter what the mediator said, because only the agreement itself is admissible, and the orders don't expressly grant you equal time in the last two weeks of summer vacation.

>I will not bend on the pick-up delay that my is demanding on
>Saturday evening instead of Friday afternoon.I know mom is
>going to do one of two things. She will either not be home
>when I am supposed to pick-up our daughter or she will be home
>and start a huge fight in front of our daughter in order to
>upset the child enough to not want to come at all. I plan to
>record the exchange in either instance.
>
>What are my options here?


>
>can I change confinement to jail to a monitairy award payable
>to me on the form?

You don't need to use the form -- you can retype it entirely. You can also strike out the paragraph on the form and add substituted language.

>What type of monitary award would be appropriate $100? 500?

There is usually a statutory maximum based upon the defendant's daily earnings. You could leave the amount up to the sound discretion of the court, or you could say, "$500 per day, made payable to Plaintiff, or a lesser amount as the court may deem fair and just."

>Is there anything else I can do to get this fixed?

My other suggestions stand. Rewrite the motion and repost here and I'll review again.

>
>Is there anyway to get back into mediation and have summer
>changed to every week exchanged with a specific date and time
>in order to have summer be shared equally and more easly
>enforceable?

You can file a motion to clarify/enforce the parenting plan, on grounds that you have received written notice of the other parent's intentions to violate the plan, and that it is in the child's best interests that the court intercede before father is deprived of his rights to custody/visitation.


>Would I just need ex wife to agree to go back?

Yes, unless the court orders it. I wouldn't ask the court for mediation -- I'd tell the court that mother has stated in writing her intention to violate the mediation agreement previously made, and therefore that mediation should be waived by the court in favor of an immediatel courtroom resolution.

>What should I do if I go at the correct time and mom and child
>are not home?

If you can get a deputy to show up and record the event, that would be best, if you cannot, then you need to have a disinterested third party who is prepared to testify. You may be able to retain an off duty deputy, at a price, of course, or a private investigator. Contempt is very tough to prove in these types of cases, so if you REALLY want to go to the mattresses, then you may have to pony up some $, to ensure a witness that will not easily be impeached during cross examination.

>What should I do if I go at the correct time and mom starts an
>arguement and our daughter does not want to come with me?

Get it all on video. Express your dismay that your ex refuses to encourage the relationship between yourself and your daughter, and then ask one more time if your daughter wants to come, and hope she says "Yes, but Mom won't let me."

[lovebug]

Thanks i got all that and I understand!

I'll get back with you shortly on the revised peteition.

~D~

[lovebug]

here is the revised petition:

Petition for Citation of Contempt

NOW COMES (me), Petitioner in the above-styled action and files
this Petition for Citation of Contempt and shows the Court as follows:

1.    An order was entered in the Superior Court of Madison County as follows:
    The case name as it appears in the prior action is XXXXX vs. XXXXX Civil action file number is XXXXXXX; filed in the Superior Court on     May 9, 2005.
A copy of that order is attached.  

2.   Respondent is subject to the jurisdiction of this court and may be   personally served with a copy of this petition and Rule Nisi at (respondent's address)
3.   In the prior Order, Respondent was ordered to allow Petitioner to visit with the minor child but has failed to do so.

4.   Respondent was able to do what the Court ordered.  Respondent's refusal to do so is willful.

5.   Respondent should be held in contempt of this Court's Order and shall be fined $500 per day, made payable to Petitioner, or a lesser amount as the court may deem fair and just.

6. Respondent should be ordered to allow make-up visitation at a specific date and time in equal amount of the time refused Petitioner.

7.   Respondent should be ordered to reimburse Petitioner for the cost of service process.


WHEREFORE, Petitioner demands:

   (a)      That process and summons issue as provided by law;
   (b)      That Respondent be served with a copy of Petitioner's Petition for    Citation of Contempt;
   (c)       That Respondent be held in contempt for failure to obey the terms of the    Court's order;
   (d)       That a Rule Nisi hearing be set ordering the Respondent to come to    Court and tell the Judge why Petitioner's Petition should not be    granted;
   (e)       That Petitioner be awarded any other relief this court finds right and proper.

I have included # 6 asking for make-up time. I would rather have make-up time than money (as mom has no job and is on SSI). I know I would never see nay money.

I have a couple of questions also:

1. You spoke of hiring an off duty law enforcement officer to be present at exchange time and then testify in court as to what was witnessed. How would I go about hiring someone for that?

2. What type of form would I use for a Motion to clairlfy/enforce the current order?

3. does # 6 look okay. Should I remove number 5 in place of number 6?

Thanks again!

~D~

[socrateaser]

Edited:

NOW COMES (me), Petitioner in the above-styled action and files
this Petition for Citation of Contempt and shows the Court as follows:

1. An order was entered in the Superior Court of Madison County as follows:
The case name as it appears in the prior action is XXXXX vs. XXXXX Civil action file number is XXXXXXX; filed in the Superior Court on May 9, 2005.
A copy of that order is attached.

2. Respondent is subject to the jurisdiction of this court and may be personally served with a copy of this petition and Rule Nisi at (respondent's address)
3. In the prior Order, Respondent was ordered to allow Petitioner to: (state the EXACT text of the part of the order that was violated).

4. On ??/??/????, at ??:?? ?M (briefly describe what occured).

5. Respondent was able to do what the Court ordered. Respondent's refusal to do so is willful.

6. Respondent should be held in contempt of this Court's Order and should be sanctioned in the amount of $500, or a lesser amount as the court may deem fair and just, made payable to Petitioner, to encourage her future compliance with the Court's orders.

7. Respondent should further be ordered to allow make-up visitation at a specific date and time in equal amount of the time refused Petitioner.

8. Respondent should be ordered to reimburse Petitioner for the cost of service process.

WHEREFORE, Petitioner demands:

(a) That process and summons issue as provided by law;
(b) That Respondent be served with a copy of Petitioner's Petition for Citation of Contempt;
(c) That Respondent be held in contempt for failure to obey the terms of the Court's order;
(d) That a Rule Nisi hearing be set ordering the Respondent to come to Court and tell the Judge why Petitioner's Petition should not be granted;
(e) That Petitioner be awarded any other relief this court finds right and proper.


>I have a couple of questions also:
>
>1. You spoke of hiring an off duty law enforcement officer to
>be present at exchange time and then testify in court as to
>what was witnessed. How would I go about hiring someone for
>that?

Call the Sheriff's office and tell them that you would like to hire an off duty officer to supervise a transfer of child custody.

>2. What type of form would I use for a Motion to
>clairlfy/enforce the current order?

I don't know GA procedure, but you could write a motion from scratch, if no mandatory form exists. If you want to do this instead of the contempt cite, let me know.

>
>3. does # 6 look okay. Should I remove number 5 in place of
>number 6?
>
N/A

However, it now occurs to me that the nature of this contempt will be criminal, i.e., your burden of proof will be "beyond all reasonable doubt." If you fail to so prove, you will lose, and the Respondent, will not be required to testify, AND, she will be entitled to appointed legal counsel if she cannot afford it.

So, you will DEFINITELY need a very credible witness or you'll be wasting your time.

[lovebug]

Orders state "Summer will be shared equally in divisions of two week periods. Eg. An eight week summer holiday will be shared two weeks with Mom, two weeks with Dad, two weeks with Mom, two weeks with Dad.  If the summer recess is less [or more] then the time will divided accordingly. Weeks will be counted as referenced earlier. The child's Birthday will continue to shared on an every other year basis."

Mother chose to excersice 1st two weeks. I have agreed. I want to pick up child at 3:00 PM (the time her school gets out) 14 days after school has recessed for summer break. Mother demands that I pick-up at 6 PM on Saturday, June 4 instead of Friday June 3.

I want to go ahead with the contempt. If mom acts like she wants to do the same type of thing for the second summer exchange I will consider a motion to enforce.

How should I word # 4?

[lovebug]

I realized I asked you an question that you cannot answer because this situation has not yet happened.

I want to write it both ways. One as Mom refused in person, and as mom was not at home with the child.

Thanks.

PS I trying to have it ready to take to the court on that day because traveling to the courty of mom's residence is quite far.

[lovebug]

Here is what I came up with for #4:

On 06/03/2005, at 3:00 P.M. Respondent denied Petitioner Court Ordered visitation with the child by failing to ensure that the child be present at the Court Ordered date, time and place of custodial exchange.
   

OR (depending if she is home or not)

 On 06/03/2005, at 3:00 P.M. Respondent denied Petitioner Court Ordered visitation with the child by verbally refusing to allow visitation when Petitioner arrived at the Court Ordered date, time and place of custodial exchange.

What do you think?

Feel free to edit. It helps me a lot!

~D~