Temporary Ex-Parte Hearing....

[daddy3]

I am the father of 3 beautiful children, living in PA.  2 are from a previous relationship, she lives 15 minutes from our house, (never married).  I am getting married to the mother of my youngest in 4 weeks.  A couple of months ago I won physical custody of my oldest son (6), and BM won physical custody of our daughter (3.5).  With the kids being together every weekend, going from house to house EOW.  BM willingly gave up custody of our son a few months prior to that though there was never anything set up through the courts until the one and only hearing that I mentioned above.  

Their mother has Bi-Polar disorder, and MS.  She takes a lot of psychotropic drugs, and is on a prescribed morphine patch.  The custody hearing was more a lawyer mediation then anything else.  Our attorney's went into a room hammered things out, then came out of the room to discuss options with us.   I agreed to the situation glad that I retained custody of my son, and with high hopes that getting custody of my daughter wouldn't be too far off.  I have just condensed 3 years of hell into a single paragraph.

We are to split the summer with her having 5 weeks with both children, and then with me having the latter 5 weeks.  On the third week of her visitation BM called my voice mail and left 2 messages saying that our daughter (3.5) had 'run away' twice.  She said that I needed to come and get the kids, and give her money to install an alarm system in her house.  (which I REFUSE to do).  She said on my machine that if I don't do so, she will place our daughter in temporary respite foster care.


 The first time she was gone it was for a half on hour (per BM's message), the second time that a run away occurred she was naked, and a neighbor brought her back, and BM says that that neighbor called CPS.   BM verbally told me of a third time too, where projects security found her.  BM lives in a VERY bad neighborhood where gang violence, known drug dealers and prostitutes live.  They're in government projects.  


It has been recommended to me that I contact my attorney ASAP to initiate an emergency custody ex-parte hearing.  My attorney is out of the office until Tuesday.  Immediately following my conversation with BM I went and picked up both kids, in agreement with their mother.  I will have them until this Friday.  At that point they're supposed to go back to her house for another week.  


Needless to say I am VERY afraid for my daughter.  I know that BM sleeps a lot, and leaves the kids (she also has another 18 mos. old baby with another man) to fend for themselves.  Next time this happens she could easily be hit by a car, or kidnapped and killed by same whacko.  My questions are these:


1)What exactly is an ex-parte hearing?  I've searched and can't deciper the legal jargon.  

2)I was advised to seek full physical custody of my daughter (from another poster on this board with a certain website), and request that BM have no overnights.  If the order is granted, how would she have it reversed/modified?  What would happen afterwards?  How long are those orders good for?  If they were good for say 6 months, what would happen at the end of those 6 months?

3)  I'm afraid that my attorney and the judge won't see this issue (3 'run aways' in a month, though I can only prove 2 per BM's answering machine messages) to be as dangerous, neglectful and horrible as I do.  Once my attorney files the necessary paperwork, how long does it typically take for a hearing like this to occur?  I'm going to try and buy more time with the kids in the mean time.  I think that I can probably keep them up until Sunday night (a week from now).

4)I assume that BM will receive the paperwork prior to the actual hearing taking place.  Is there anything that I can do if she gets the paperwork and them shows up at my house angry, and demanding the kids?  It is her court ordered visitation time.


Thank you so much for taking the time to read this, I appreciate any advice that I can get on this matter.  

[socrateaser]

>1)What exactly is an ex-parte hearing?  I've searched and
>can't deciper the legal jargon.  

Ex parte means "one party absent." An ex parte temporary order is a court order made on motion of one party without the other's presence in court, because there isn't time to inform the other party and/or some irreparable harm will befall the petitioner unless the court grants an emergency order without the other party being afforded a due process opportunity to appear and defend.

Because both parents apparently have attorneys of record in the case, obtaining an ex parte order is highly unlikely, because your attorney has a duty to inform the other attorney that he/she will appear and ask for an emergency order, and this will afford the other attorney the opportunity to appear as well.

The emergency hearing would then go forward, and your attorney would have to show that you or your child(ren) will suffer irreparable harm if your request for temporary custody is not granted. Usually, an ex parte hearing is followed by a more formal hearing within 21 days, in order to comport with constitutional due process for the absent party. However, if both parties appear at the first hearing, then due process is served and there's no reason to hold the second hearing.

Now, the question that you need to ask is: "What OBJECTIVE evidence/testimony can you produce to show that your child(ren) will suffer irreparable harm if you are not granted emergency custody?" Do you have a disinterested third-party witness who will testify that he/she saw your child run away on several occasions during the past week? If you don't, and you don't have some other credible evidence to support your motion, then it will be denied, and you will be back at square one.

This doesn't mean you may not have grounds for a new custody hearing. The question really is: "Is the other parent unfit to exercise day to day custody over the child(ren)?" You need some witnesses who can testify, or evidence that will show, that the children are in considerable danger -- more so than prior to your last custody orders, and for some new or newly exacerbated reason.

I'm not seeing anything in your post that tells me you have a case. That is, you may have had a child with a nutcase parent, but unless you can obtain some OBJECTIVE credible evidence that her nuttiness is harming the kids on a routine bases, then the court's gonna send you out the way you came in.

So, now that I've given you the ground rules, think about what you've got, and whether an objective trier of facts (judge) would accept your proof. If so, you have a case. If not, you don't. Simple as pie.

>
>2)I was advised to seek full physical custody of my daughter
>(from another poster on this board with a certain website),
>and request that BM have no overnights.  If the order is
>granted, how would she have it reversed/modified?  What would
>happen afterwards?  How long are those orders good for?  If
>they were good for say 6 months, what would happen at the end
>of those 6 months?

Irrelevant, at the moment.

>
>3)  I'm afraid that my attorney and the judge won't see this
>issue (3 'run aways' in a month, though I can only prove 2 per
>BM's answering machine messages) to be as dangerous,
>neglectful and horrible as I do.  Once my attorney files the
>necessary paperwork, how long does it typically take for a
>hearing like this to occur?  I'm going to try and buy more
>time with the kids in the mean time.  I think that I can
>probably keep them up until Sunday night (a week from now).

Uh huh...
>
>4)I assume that BM will receive the paperwork prior to the
>actual hearing taking place.  Is there anything that I can do
>if she gets the paperwork and them shows up at my house angry,
>and demanding the kids?  It is her court ordered visitation
>time.

I already explained the situation, above.

>Thank you so much for taking the time to read this, I
>appreciate any advice that I can get on this matter.  

No problem. Happy firecrackers.

[daddy3]

Thanks for the quick response.  At this point the only thing that I have that is current (since the last hearing) are the two answering machine messages from BM.  The first detailing that my daughter left the house and was gone for at least a half an hour.  The second machine message was 3 weeks later, and it details that my daughter left the house again, naked.  In that message BM threatens to send our daughter to foster care.  I guess that I don't understand why that's not enough to warrant a custody change.  'Fit' parents wouldn't even consider sending their child to foster care because they 'run away' at age 3.  If I know that this kind of stuff is going on, and I don't do anything, I will feel responsible when something horrible happens to her.   Aren't her own words on my answering machine objective evidence?  I already have custody of my son, I was hoping that that will help my case.  Thanks again.

[socrateaser]

>Thanks for the quick response.  At this point the only thing
>that I have that is current (since the last hearing) are the
>two answering machine messages from BM.  The first detailing
>that my daughter left the house and was gone for at least a
>half an hour.  The second machine message was 3 weeks later,
>and it details that my daughter left the house again, naked.
>In that message BM threatens to send our daughter to foster
>care.  I guess that I don't understand why that's not enough
>to warrant a custody change.  'Fit' parents wouldn't even
>consider sending their child to foster care because they 'run
>away' at age 3.  If I know that this kind of stuff is going
>on, and I don't do anything, I will feel responsible when
>something horrible happens to her.   Aren't her own words on
>my answering machine objective evidence?  I already have
>custody of my son, I was hoping that that will help my case.
>Thanks again.

Yes, a recording of a person on an answering machine, made with their knowledge and consent is admissible objective evidence. And, threatening to take a child to foster care because they run away does seem to indicate a certain hysteria, which may argue in favor of having the other parent submit to psychological eval, or drug testing, if you can convince the judge that the children are in some distress. But, none of this rises to the level of evidence of irreparable harm required for an "emergency" order, although, it may show a substantial change in circumstances, warranting a new custody determination.

I'd need to actually hear the message recordings to determine there likely effect on a judge. Which is what your attorney will want to do, as well. So, you'll just have to wait until Tuesday and contact your attorney.