Gratitude for your help

[DecentDad]

Hi Soc,

Today was biomom's big hearing to modify custody and eliminate overnights in my home and drastically reduce my contact with child.

I owe you a huge THANKS most of all for warning me not to return to court anytime soon (even with merit) until well after our ordered parenting conflict classes (biomom filed for sole custody before they even began).

We started today with opposing counsel getting her butt reamed for filing this and fueling the on-going litigation.

From there, OC argued her distorted dribble about me, interrupted at one point with judge saying, "Yeah, yeah, I know you think Dad's all evil.  But you're not addressing how sole custody will change anything."

I just took notes on her 5 minute intro, I argued point by point.  Started by saying I got his message loud and clear a few months ago that he wanted us to work harder on resolving conflict ourselves, so I was surprised at this action that came before the conflict classes even started.  He agreed that that's what he wanted.  Judge listened to all my counterpoints without comment.

I think his mind was made up before we started, so I had the easy job today.

Within 10 minutes from start to finish, judge denied biomom everything she sought.  No discussion of my affirmative relief requested, and I didn't wanna push it so I just thanked him and skeedaddled.

So one question...

1. Can biomom go back and request sole custody again on the same platform as she just did (e.g., argued stronger)?  If something is dismissed (with no mention of whether it's with or without prejudice), does she get to argue it again some other time?  Or did she blow her shot until something else major happens?

And, once again, THANK YOU.  Big weight gone from my shoulders (until next time biomom hires a new attorney).

DD

[socrateaser]

>1. Can biomom go back and request sole custody again on the
>same platform as she just did (e.g., argued stronger)?  If
>something is dismissed (with no mention of whether it's with
>or without prejudice), does she get to argue it again some
>other time?  Or did she blow her shot until something else
>major happens?

You're the prevailing party, so you get to write the findings and orders after hearing, unless the judge already scratched something out at the hearing (very doubtful).

So, get an FL340 form, fill it out, check "not applicable" on lines 3-6, and on line 7 (other orders), check "as attached," then attach a page stating the following (I don't remember who's petitioner or respondent so I'm gonna assume that your ex is Respondent):

Other orders: All relief requested by Respondent is hereby denied, with prejudice.

Then send to opposing counsel within 5 days, with cover letter for approval as to form.

Maybe your opponent will want to fight over the wording, and it will cost your ex some more dough.

[DecentDad]

Hey, thanks for that.

Opposing counsel did ask at the end if it was dismissed with or without prejudice.  Judge didn't really answer the question, only said something like she (the attorney) knows what's needed to modify post-judgment orders.

So, absent a statement of with or without prejudice, it's presumed "with"?

Thanks again, for all your help.

DD

[socrateaser]

>Hey, thanks for that.
>
>Opposing counsel did ask at the end if it was dismissed with
>or without prejudice.  Judge didn't really answer the
>question, only said something like she (the attorney) knows
>what's needed to modify post-judgment orders.
>
>So, absent a statement of with or without prejudice, it's
>presumed "with"?

The judge was telling the attorney that she needs clear and convincing evidence of a change in circumstances, and that what's been submitted thus far ain't even close.

I have a new idea. Use this wording:

"Other orders: The court finds that the evidence submitted does not demonstrate a substantial change in circumstances affecting the child's best interests, therefore the motion is hereby denied."

A "denial" is not the same as a "dismissal," because a denial means that the court has actually considered the merits of the evidence submitted and found it lacking, whereas a dismissal means that the court is terminating the procedings without necessarily considering the merits of the evidence, e.g., party has failed to state a valid claim, or the statute of limitations has run, etc.

Dismissals are usually without prejudice before trial has commenced, and with prejudice afterwards, but the court has discretion in either situation. But, a denial is like a judgment -- it's over.

So, let's see if we can get opposing counsel to think that her motion was dismissed before trial, i.e. without prejudice, when it was really denied, i.e., with prejudice.

You say banana, I say banana. But, denial and dismissal are not exactly the same thing -- and maybe your ex's CFLS attorney will be too busy to concentrate on the precise wording of the order.

[DecentDad]

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