R&R Visitation - Any adivce??

[fight4ss]

Mississippi -

DH and BM had 50/50 custody.

2004 -She filed for custody. We settled out of court because DH got military orders to deploy. Our lawyer advised us to do this because she said Judge would not give us custody since DH was leaving.

Agreement gave Physical Custody to BM and Joint everything else.

We plan on going back to court for custody and contempt after DH returns from deployment.

DH has 2-week R&R coming up. Impossible to know exact date he will arrive.

Agreement states: Beginning with the first summer following Defendant's return from active duty, he shall enjoy five weeks of summer visition, to be exercised in one two-week increment and one three-week increment, to be agreed upon by the parties. However, in the event the parties cannot agree, then visitation shall be as follows: Even years, the Defendant shall have visitation the first two weeks of June and the First, Second and Third weeks of July. On odd years, the Defendand shall have visitation during the second two weeks of June and the Third and Fourth weeks of July and the First week of August.

We did not consider making special arrangement in the agreement for this deployment because our lawyer suggested making the agreement the same day we were to go to court and this gave us no time to consider this.

When DH was at training for 6 months, he had some weekends off. BM would not let me take SS to see him unless it was "our" weekend. DH got to see my SS only 2 times out of at least 7 or more.

Lawyer said she can file emergency hearing, but date for hearing is too far out to be worth the cost.

I called Chancery Court - they said I cannot do anything. DH has to do everything because I'm just his wife. I explained that he's out of the country and I have Power of Attorney. They said it didn't matter and that I could get in trouble.

The did say that DH could file pleadings on his own. But again, he's only here for 2 weeks and the date for that is too far out to be worth it.

BM has agreed to certain dates - which, depending on when DH gets home, could give him up to a week with SS if he's lucky.

Oh, and BM was supposed to go on vacation during the R&R time - but cancelled it because she said it was a vacation for SS (2nd one this year) and said she lost her deposit on condo.

The reason she is demanding dates to have SS back (according to an  e-mail) is so that SS can readjust after spending time with us because it'll be too hard on him and he's always trouble after spending the one weekend a month with me.

1. What would happen if we just did not return SS to BM on her demanding dates? Of course we would call her to let her know after SS was in our care.

2. Is Chancery Court in my county correct? Can I not do this for my DH?

3. Is it worth it to pay $$ to lawyer to go to court even though DH may only get 3 days out of it, just so we can have this in the court documents to help our case later?

Thanks for everything!

[socrateaser]

>1. What would happen if we just did not return SS to BM on her
>demanding dates? Of course we would call her to let her know
>after SS was in our care.

Theoretically, the custodial parent could call the Sheriff who, depending upon the number of available deputies, could come and remove the child from your care and return him to the other parent.

Or, nothing could happen, but the custodial parent could file a contempt motion -- which would not be heard until the father returns from deployment.

>2. Is Chancery Court in my county correct? Can I not do this
>for my DH?

Only people licensed to practice law, can represent others in court. Power of attorney is authority to make binding decisions on behalf of the person granting the power. It does not grant the right to practice law -- only to hire a lawyer to represent the person who grants the power of attorney (aka, the "principal.").

>3. Is it worth it to pay $$ to lawyer to go to court even
>though DH may only get 3 days out of it, just so we can have
>this in the court documents to help our case later?

Only you can decide this. I don't know your financial condition, but, the likely cost of going to court on a motion in a major metropolitan is usually around $1-2,000. Probably on the lower end of the scale in Mississippi.

[fight4ss]

Thank you!

A few more questions.... You know it's really hard to keep my emotions out of this! LOL

1. I called Sheriff's Dept. and asked what would happen if we did this. Lady said it depends on what paper says. Paper is a little innocuous "....return from active duty..." My DH is full-time military and is active duty all the time. So it's open to interpretation. We see it one way, she see's it another. What do you think?

2. Wouldn't SHE be in contempt of court if we gave in to her demands?

3. Can't our lawyer just write a letter to BM and her attorney advising her to follow agreement?

4. Do you know anything we can do?

Thank you so much!!

[socrateaser]

>Thank you!
>
>A few more questions.... You know it's really hard to keep my
>emotions out of this! LOL

Chant quietly: "It's just business..."

>
>1. I called Sheriff's Dept. and asked what would happen if we
>did this. Lady said it depends on what paper says. Paper is a
>little innocuous "....return from active duty..." My DH is
>full-time military and is active duty all the time. So it's
>open to interpretation. We see it one way, she see's it
>another. What do you think?

You'll have to post the exact text of the orders for me to give you an interpretation.

>
>2. Wouldn't SHE be in contempt of court if we gave in to her
>demands?

See #1, above.

>
>3. Can't our lawyer just write a letter to BM and her attorney
>advising her to follow agreement?

Sure, but, the Sheriff doesn't take instructions from your attorney.

>
>4. Do you know anything we can do?

See #1, above.

[fight4ss]

I'm sorry. I posted the text in my first message here. Here is what the agreement states:

Agreement states: Beginning with the first summer following Defendant's return from active duty, he shall enjoy five weeks of summer visition, to be exercised in one two-week increment and one three-week increment, to be agreed upon by the parties. However, in the event the parties cannot agree, then visitation shall be as follows: Even years, the Defendant shall have visitation the first two weeks of June and the First, Second and Third weeks of July. On odd years, the Defendant shall have visitation during the second two weeks of June and the Third and Fourth weeks of July and the First week of August.

Also, she is willing to give us "some" time, which could be up to a week, depending on when DH gets out of country, but could be as little as 1 or 2 days.

We have an e-mail from her stating that the reason she wants SS back is, "to give him time to readjust after being at your home. He acts like a different child, and I have many people to attest to that fact. Past and present teachers all say the same. SS throws fits and does not listen after a few days with SM and Grandma." Her reasons for wanting SS back are unreasonable to us.

I'll repost the questions:

1. What do you think about the agreement and DH's right to see SS? Should we just take the chance and just keep him?

2. Wouldn't SHE be in contempt of court if we give in to her demands?

3. Do you know of anything else we can do?  

Thanks!

[socrateaser]

>I'm sorry. I posted the text in my first message here. Here
>is what the agreement states:
>
>Agreement states: Beginning with the first summer following
>Defendant's return from active duty, he shall enjoy five weeks
>of summer visition, to be exercised in one two-week increment
>and one three-week increment, to be agreed upon by the
>parties. However, in the event the parties cannot agree, then
>visitation shall be as follows: Even years, the Defendant
>shall have visitation the first two weeks of June and the
>First, Second and Third weeks of July. On odd years, the
>Defendant shall have visitation during the second two weeks of
>June and the Third and Fourth weeks of July and the First week
>of August.
>
>Also, she is willing to give us "some" time, which could be up
>to a week, depending on when DH gets out of country, but could
>be as little as 1 or 2 days.
>
>We have an e-mail from her stating that the reason she wants
>SS back is, "to give him time to readjust after being at your
>home. He acts like a different child, and I have many people
>to attest to that fact. Past and present teachers all say the
>same. SS throws fits and does not listen after a few days with
>SM and Grandma." Her reasons for wanting SS back are
>unreasonable to us.
>
>I'll repost the questions:
>
>1. What do you think about the agreement and DH's right to see
>SS? Should we just take the chance and just keep him?

The orders are too vague, and they do not cover the current circumstances at all. The father is not returning from active duty -- he's on R&R, i.e., this is a completely temporary situation.

So, a judge would likely rule that you have no entitlement to custody at all, right now. A Sheriff's deputy, would probably say that it doesn't expressly grant you visitation, therefore you don't have any.

>
>2. Wouldn't SHE be in contempt of court if we give in to her
>demands?

I don't see anything that entitles you to any custody in your post, thus far. Does the order actually specify who has physical and/or legal custody? If it does, and the other parent was awarded physical custody, then she wins and you lose, unless you go back for a clarification order.

>
>3. Do you know of anything else we can do?  

See above.

[fight4ss]

Thanks Soc. I'm glad to have some advice, even if it's not what I wanted to hear. It makes me angry that our lawyer didn't look out for our best interests when we had to come up with this last minute agreement.

We're going to have an emergency hearing I think. It seems like that's the only option we have.

Blessings to you!! Thank you!

[socrateaser]

>Thanks Soc. I'm glad to have some advice, even if it's not
>what I wanted to hear. It makes me angry that our lawyer
>didn't look out for our best interests when we had to come up
>with this last minute agreement.
>
>We're going to have an emergency hearing I think. It seems
>like that's the only option we have.

A judge should be pretty sympathetic towards granting you some reasonable visitation, and he/she will probably be annoyed that the child's mother is denying time to a serviceman on active duty who is home for R&R.  The man's out there risking his life for the nation, and he may never see his child again, if he's killed, but the mom doesn't want to permit him to see the child while he has a short opportunity to do so.

Pathetic behavior.