Do I reply?

[crayiii]

I submitted a motion for clarification on our temp parenting plan.  In my declaration, I state the issues very clearly, state why the issues are a problem, state what I've done to try to resolve the issue outside of court,  state what I am asking for as far as clarification, and show why this is not a change of the parenting plan but is instead what the plan intended.

The reply declarations from my wife and her boyfriend are very poorly written, have no paragraph breaks, have misspellings, and basically state "he is lying, he's bad, we're good".

The reply declarations do not address the issues at all.  They don't state facts, they don't ask for my clarification motion to be denied, they don't touch on my issues at all.  They bring in other things such as this "after my son returns from his visits with his father he is distant and doesn't even want to look at me.  This means that my husband is telling him bad things about me".

Do I reply to this crap?  I have evidence that would dispute what they are saying such as the following:

cell phone bills that show calls
video of my son and I together
witnesses that I say good things about my wife in front of our son
pictures of my son in his room that show pictures of his mom hanging on the wall

or do I ignore it knowing that the judge will see it for what it is?

If you would like, I can email you the declarations that they submitted.

h

[wendl]

Most kids when they arrive at each parents have a transition time.

My son used to tell me load of BS and hurtfull things when he returned from his fathers (I knew why he was saying these things not because my ex said anything but because he knows he can do this to me cuz I won't ever leave him like his dad did) he is 13 now and doesn't pull that anymore.

I would think you don't have to respond, that you could address her so called response in court. BUT Soc would know that not me.


**These are my opinions, they are not legal advice**

[socrateaser]

>Do I reply to this crap?  

No. Most judges won't even bother reading a reply to a response to a motion. Unless there's something so outrageous that you feel the need to reply in writing (such as a brand new allegation of abuse, etc.), so as to ensure that some important documentary evidence gets before the court, don't waste your time.

Have a nice holiday.

[crayiii]

Should I object to the declarations as being hearsay, irrelevant, and containing impeachable statements?  It is my understanding that oral testimony does not take place at these hearings and the commissioner only goes by the declarations.

Another issue is that her attorney faxed the declarations to me instead of mailing them.  They were filed on the 1st, the hearing is on the 8th, and with the holiday, I don't believe they met the deadline.

[socrateaser]

>Should I object to the declarations as being hearsay,
>irrelevant, and containing impeachable statements?  It is my
>understanding that oral testimony does not take place at these
>hearings and the commissioner only goes by the declarations.

Declarations ARE hearsay. Temporary hearings are, as you point out, conducted based upon affidavits/declaratoins, which at trial, would be objectionable as inadmissible hearsay. However, due process only requires that you have the opportunity to object to such evidence at trial, not at a temporary hearing.

Now, if you encounter something that is over the top, i.e., some extremely damning affidavit/declaration from a third party witness who is not present at a temporary hearing, then you can politely request that the court not allow the declaration or limit its scope, on grounds that it is unduly prejudicial in view of your inability to cross examine the declarant.

If you do this, the judge will be impressed, but if you start complaining about things that are probably true, although technically inadmissible at trial, the judge will get annoyed that you don't know the law, and you will immediately be viewed as just another angry dad.

I will continue to emphasize the things that make you appear more lawyer like, because those are the things that garner continuing respect from the court. It is a rare bird who can represent himself in court without a J.D. after his name.

>Another issue is that her attorney faxed the declarations to
>me instead of mailing them.  They were filed on the 1st, the
>hearing is on the 8th, and with the holiday, I don't believe
>they met the deadline.

Don't get caught up in di minimis issues. It makes you appear uncooperative and petty. Seriously, this attorney that you're dealing with is giving you more deference as a pro se litigant that just about any attorney I've ever encountered. So far, he's treating you about the same as he would another attorney, and although you're entitled to such treatment, pro se litigants rarely get this. So, rise above the small stuff and deal with the substantive issues of the case.

[crayiii]

Okay, so I have this hearing on Friday.  Since my wife's reply declaration did not dispute or in any way state any reasons why the clarifications that I am requesting shouldn't be granted do I simply state in court that I believe the court should grant my request since there was no objection raised?

[socrateaser]

>Okay, so I have this hearing on Friday.  Since my wife's
>reply declaration did not dispute or in any way state any
>reasons why the clarifications that I am requesting shouldn't
>be granted do I simply state in court that I believe the court
>should grant my request since there was no objection raised?

No, you present your argument in support of your motion, and your opponent will oppose you. The court is not bound to give you the relief requested simply because your opponent fails to respond. Only when a complaint/petition is filed and served, and the other party never answers at all, is the complainant entitled to a "default judgment." There are no defaults on motions, not even for orders to show cause. The court gets to review the evidence and pleadings and then make a decision.

[crayiii]

I just heard from her.  She said that she isn't going to be at the hearing that her attorney was going to be there in her place.  Is that okay for them to do that?

[socrateaser]

>I just heard from her.  She said that she isn't going to be
>at the hearing that her attorney was going to be there in her
>place.  Is that okay for them to do that?

Yes, it is (only in a criminal matter, is the defendant obilged to appear so as to be 'confronted" by his/her accusers. If you wanted her to show up, then you should have subpoenaed/noticed her to be present.

I don't know the WA procedure on this point, but it's probably too late to force her to appear, without asking for a continuance.

What exactly do you intend to allege, and on what points do you believe that her testimony would help you prove your case?

[crayiii]

Everything that I allege is in my declaration in support of my motion.  I have asked that certain areas of the temp parenting plan be clarified by the court as they are causing both of us problems.

Transportation is one area.

Phone contact is another.

I have provided examples of the issues the ambiguous language is causing.  In fact, in my wife's declaration she has even stated that phone contact has been a problem.

I have also included as exhibits, my letters to the attorney asking for their assistance in clarifying the orders in hopes that we can keep it out of the court.