Preparing for court

[brodrzy]

Dear Socrateaser,
We are preparing a petition for violation of visitation in NYS. I had to obtain a Protection order against DH's ex. In the previous order, all visitation is spelled out via email between SD and DH. The ex is stating that there will be no over nights, or visits with me due to having to file charges against her. She is doing it by saying it is the 15 year old child's choice. Counseling has been stopped after a phone call from Mom stating she will not bring SD to counseling, but the counselor refuses to report this to the court unless the court asks her to. All phone contact has stopped as well. At pick up times my DH gets yelled at by his daughters step father. We are pro se, aka to poor for a real lawyer.

1) Do I say the ex is in contempt or just that there is a violation of the order?
Is that up to the judge?

2) Will the court supeona the counselor?

3) Can my husbands visits be denied because of the order of protection?

4) How do you state the stepfathers interference with visitation?

5) What will the judge want to hear as far as evidence?

Thanks, and hope I did it right this time. :) BD

[socrateaser]

>1) Do I say the ex is in contempt or just that there is a
>violation of the order?

Contempt is difficult to prove without objective evidence/witnesses. First you must show that the other parent is willfuly and with conscious disregard, violating the orders of the court. And, you must show that she is doing it beyond all reasonable doubt, so your evidence must be solid a a rock, or you will lose.

In order to assist you further, I need to know the EXACT text of the order that you claim is being violated, and what evidence or witness testimony that you will offer to prove your case. Without both, I can't even guess at your approach.

You can file for an enforcement order, rather than for contempt, but that will merely result in a repremand from the judge, and then you will still be left with having to prove contempt, later when the other parent, almost certainly continues to violate the order.

>Is that up to the judge?

No, it's up to you to plead the correct law and facts and then to prove your case. If you do, then the judge will find against the other parent and spank her. Otherwise you'll walk out wondering how the judge could not find in your favor.

>
>2) Will the court supeona the counselor?

No. That's your job.

>
>3) Can my husbands visits be denied because of the order of
>protection?

Not that I can see, but I would need to read the order of protection and the other custody/parenting time/visitation orders to determine if there's any validity to the mother's position.

>4) How do you state the stepfathers interference with
>visitation?

If your asking me to tell you how to precisely plead the allegation that the stepfather is interfering with your visitation, then I need to know the precise facts and the precise words of the order that you believe he is helping the custodial parent to violate. As a matter of law, the step parent is his wife's partner, and therefore acts as her agent generally, which means he can be held in contempt for knowingly aiding in the violation of the court the order in the same manner as his wife.

>5) What will the judge want to hear as far as evidence?

Video and audio of the stepfather refusing to permit you to take the child would be good. A disinterested third party witness like a police officer would be just as good, if the officer is there at the time that the visitation is denied. Very hard to obtain. You can also hire an off duty officer to witness a custody exchange. Or, a neighbor of the mother would be good.

In some jurisdictions, if you call the police when the parent refuses to permit the visitation, then they will come out to ensure that the "peace" is kept. And, sometimes the custodial parent or stepparent will tell the officer why they are refusing visitation, and then the officer can testify to the fact that the visitation is being willfuly interfered with.

>Thanks, and hope I did it right this time. :) BD

You did good, thank you.

[brodrzy]

Thanks Socrateaser, In regards to question number 1

1.)  Do I say the BM is in contempt or that there is a violation of the order?

We are in NYS. The child is 15. Last year we took the ex to Supreme court for enforcemnt of visitation orders from the Matrimonial settlement agreement of 2000, along with support issues, threatening contempt on the papers. A scare tactic, I was told.  It never went to trial.  This document was verbally agreed upon on April 27th,  and filed on August 24th. The old decree of 2001 is in affect with all other issues

TEXT- VISITATION

The plaintiff will have a regular access schedule every tues from
5:30 PM to 8:30

2 mandatory weekends per month, each weekend consisting of a minimum 24 hour period including one overnight. The scheduling of these weekends shall be scheduled between the child and the father and memoralized by email by the 25th of the preceeding month. Said weekends are only to be missed under the most extreme of circumstances and if cancelled by the child, the time period shall be made up within seven days of the missed or cancelled days.

During the child's summer vacation from school,  mandatory two ten day nonconsecutive day periods which shall consist of four full days and overnights with the father, two full days and overnights with the Mother, and then four full days and overnights with the father. The mother shall have two consecutive or nonconsecutive weeks. 14 days.

Evidence

Emails stating the intention of the child to take an illegal 21 day period, because if dad gets 21 days then mom gets 21 days

Emails stating that overnights will end and all tuesday visits will be out of the house and away from our home because, I pressed charges against her Mother.

Letter from law guardian making it clear to BM that such a vaction is illegal

Matters of record from the police, access denied etc

BM went to softball field where DH was coaching, and took her home because she did't want her to play. We could get an affidavit from one of the other coaches.

Incident where ex called dh a number of choice expletives at pick up time-
Husbands affidavit


Text- Counseling

Ordered, that the father and the child be continued to be enrolled in counseling with XXXX until such time as the counselor recommends otherwise, The mother shall be involved in counseling only as recommende by said counselor.

Evidence

Emails canceling couseling sessions, one stating that DH"S  presence was'nt necessary, allegedly from 15 teen year old daughter.

The counselors admission, that since the BM refuses to bring sd that she is now recommending that counseling is individual, so the child GETS counseling. When dh asked for a letter, she did'nt deny this but stated that a court would have to ask her for one.

Jan 2005 audiotape, from BM that makes it clear that she grills sd about counseling sessions, ex : You are a bold face liar! You lied to XXX(counselor)...Voicemail/public message

Phone contact - TEXT

There shall be reasonable and liberal communication with the child. Telephone contact should be limited to one telephone call per day by either parent to the child, or from the child to either parent.

Evidence

Husband had to go to police station to get phone contact after not hearing from SD in eight days . Matter of record

Ex wife came to police station in a rage, stating that the police clerk helped
Dh trick his daguhter into talking to him. She produced one of our matter of records for missed visitation that she had in her possesion illegally, which the clerk took from her. We can get a matter of record for that too
or an affidavit.

Childs admission that she can't give the number to the father, while at dinner with the grandmother

Third party interference

Text
The parties shall exert every reasonable effort to maintain free access and unhampered contact between the child and each of the parties

Evidence

Email from Step father stating that he refused to facilitate communication between dh and the ex for purposes of visitation. Dated OCT 2004

SF came out to car and told dh that he was causing trouble and that he was making sf hate dh, in front of daughter. Affidavit? No tape :(

SF tried to intimidate me by saying that if I got involved with the dispute,
my marriage would be in trouble, in front of daughter  

Alienation

Niether party shall do any act which will alienate the child from the other ,
or damage the child's opinion as to each respective parent, or which may hamper the free and natural development of the child's love and respect for each parent.

audiotape DH on phone with daughter, daughter asks to go to softball clinic
(Legal if one party is aware) Mother blasts daughter and states she is not a part of her family if she goes

2) Can We just supeona a letter, not testimony from the counselor?

3) Do affidavits mean anything? Is trues that the person has to be willing to testify?

4) Can my husbands visits be hampered by this order of protection?

Text:
It is a no contact order of protection from me to the ex.

It states stay away from me, the home of me,
no communication to me by phone,mail, email, viocemail or other means

refrain from assault , harrassment, stalking, menancing, intimidation, disorderly conduct, interference with victum or designated witnesses of such defense (my husband) and such members of the household- my infant son, step daughter during visitstion

under specify other conditions defendent must observe: except for visitation of child

REMEMBER: Through emails the child is allegedly stating it is her choice!

5) Is the first case going to be a Trial? Can we do contempt in family court? Can we ask for more time if she is found to be in contempt.?

Thanks Soccrateaser, BD

[socrateaser]

OK, when you read this, you will start to understand how difficult it is to obtain a contempt order without sufficient evidence. Don't get mad at me -- I'm just following the law. See comments HACKded below:

>Thanks Socrateaser, In regards to question number 1
>
>1.)  Do I say the BM is in contempt or that there is a
>violation of the order?
>
>We are in NYS. The child is 15. Last year we took the ex to
>Supreme court for enforcemnt of visitation orders from the
>Matrimonial settlement agreement of 2000, along with support
>issues, threatening contempt on the papers. A scare tactic, I
>was told.  It never went to trial.  This document was verbally
>agreed upon on April 27th,  and filed on August 24th. The old
>decree of 2001 is in affect with all other issues
>
>TEXT- VISITATION
>
>The plaintiff will have a regular access schedule every tues
>from
>5:30 PM to 8:30
>
>2 mandatory weekends per month, each weekend consisting of a
>minimum 24 hour period including one overnight. The scheduling
>of these weekends shall be scheduled between the child and the
>father and memoralized by email by the 25th of the preceeding
>month. Said weekends are only to be missed under the most
>extreme of circumstances and if cancelled by the child, the
>time period shall be made up within seven days of the missed
>or cancelled days.
>
>During the child's summer vacation from school,  mandatory two
>ten day nonconsecutive day periods which shall consist of four
>full days and overnights with the father, two full days and
>overnights with the Mother, and then four full days and
>overnights with the father. The mother shall have two
>consecutive or nonconsecutive weeks. 14 days.
>
>Evidence
>
>Emails stating the intention of the child to take an illegal
>21 day period, because if dad gets 21 days then mom gets 21
>days

Intent to commit a future contempt is not contempt. However, if the actual unauthorized vacation took place, and you can prove that it did, then that would be contempt.

>
>Emails stating that overnights will end and all tuesday visits
>will be out of the house and away from our home because, I
>pressed charges against her Mother.

Intent to commit a future contempt is not contempt. However, if the mother ends all Tuesday visits then that would be contempt.

>
>Letter from law guardian making it clear to BM that such a
>vaction is illegal

This is relevant to prove that BM knew that she was violating the court order, assuming that she actually violated it, and you can prove that she did.

>Matters of record from the police, access denied etc

If the officer reports your version of what happened, then it's only proof that you told the officer, not that the events actually took place. If the officer personally witnessed the denial of access to the child, then you have proof of contempt beyond reasonable doubt. Either way, for a criminal contempt, you will need to subpoena the officer to appear and testify as to what occurred, because the mother is entitled to confront the witnesses against her.
>
>BM went to softball field where DH was coaching, and took her
>home because she did't want her to play. We could get an
>affidavit from one of the other coaches.

You will need both an affidavit as well as the coach's personal testimony.

>Incident where ex called dh a number of choice expletives at
>pick up time-
>Husbands affidavit

Not contempt, unless the order prohibits it, and even then, such an order is a prior restraint which is likely unconstitutional, unless the parties both agreed to the order in advance. Either way, you need a witness other than the plaintiff to corroborate – otherwise it's not sufficient proof.
>
>Text- Counseling
>
>Ordered, that the father and the child be continued to be
>enrolled in counseling with XXXX until such time as the
>counselor recommends otherwise, The mother shall be involved
>in counseling only as recommende by said counselor.
>
>Evidence
>
>Emails canceling couseling sessions, one stating that DH"S
>presence was'nt necessary, allegedly from 15 teen year old
>daughter.

If the sessions were cancelled, it's contempt, if not then not. Your proof is the testimony of the counselor that the appointments were cancelled, not an email from the child stating that the sessions would be cancelled in the future.

>
>The counselors admission, that since the BM refuses to bring
>sd that she is now recommending that counseling is individual,
>so the child GETS counseling. When dh asked for a letter, she
>did'nt deny this but stated that a court would have to ask her
>for one.

The counselor has a duty of confidentiality to her patients. A court can order her to testify to what occurred, so you must subpoena her to testify as to the events.

>
>Jan 2005 audiotape, from BM that makes it clear that she
>grills sd about counseling sessions, ex : You are a bold face
>liar! You lied to XXX(counselor)...Voicemail/public message

This isn't contempt, but it may be grounds for a new custody hearing, because it shows that the mother is affirmatively acting against the child's best interests, which is substantial evidence of a change in circumstances affecting the child's best interests.

>
>Phone contact - TEXT
>
>There shall be reasonable and liberal communication with the
>child. Telephone contact should be limited to one telephone
>call per day by either parent to the child, or from the child
>to either parent.
>
>Evidence
>
>Husband had to go to police station to get phone contact after
>not hearing from SD in eight days . Matter of record
>
>Ex wife came to police station in a rage, stating that the
>police clerk helped
>Dh trick his daguhter into talking to him. She produced one of
>our matter of records for missed visitation that she had in
>her possesion illegally, which the clerk took from her. We can
>get a matter of record for that too
>or an affidavit.

This doesn't clearly demonstrate that the mother prevented contact. I would need to read a statement of exactly what took place from the personal knowledge of the clerk, who you must subpoena to testify if you want evidence of this contempt on the record.

This also would be evidence in support of the mother's acting against the child's interests and for a new custody hearing.

>
>Childs admission that she can't give the number to the father,
>while at dinner with the grandmother

This will require the child's testimony. You want to avoid this at all costs.

>
>Third party interference
>
>Text
>The parties shall exert every reasonable effort to maintain
>free access and unhampered contact between the child and each
>of the parties

This sort of order is vague, and is not easily amenable to a contempt action, because of the difficulty in proving what "every reasonable effort" means from an objective observer's viewpoint.

>
>Evidence
>
>Email from Step father stating that he refused to facilitate
>communication between dh and the ex for purposes of
>visitation. Dated OCT 2004

This doesn't clearly show that step father is acting under direction of mother, so no contempt.

>
>SF came out to car and told dh that he was causing trouble and
>that he was making sf hate dh, in front of daughter.
>Affidavit? No tape :(

No proof, so forget about it.

>
>SF tried to intimidate me by saying that if I got involved
>with the dispute,
>my marriage would be in trouble, in front of daughter  

You are not a disinterested third party witness, so your testimony will not be viewed as proof beyond all reasonable doubt.

>
>Alienation
>
>Niether party shall do any act which will alienate the child
>from the other ,
>or damage the child's opinion as to each respective parent, or
>which may hamper the free and natural development of the
>child's love and respect for each parent.
>
>audiotape DH on phone with daughter, daughter asks to go to
>softball clinic
>(Legal if one party is aware) Mother blasts daughter and
>states she is not a part of her family if she goes

Assuming that you are correct in your interpretation of the law for electronic communication interception in your state, then you must have the tape transcribed by a certified court reporter, and then you can offer its contents to the court.

You can also ask the other parent about the incident on the witness stand, and then if the mother says "I don't remember," you can ask the court for permission to refresh the mother's recollection of the incident, at which point you play the tape. Unfortunately, at a criminal contempt hearing, you cannot compel the mother's testimony, because she has a right to not testify against herself. So, this trick won't work.

>2) Can We just supeona a letter, not testimony from the
>counselor?

This is a criminal contempt hearing, so you need the witness' personal testimony.

>
>3) Do affidavits mean anything? Is trues that the person has
>to be willing to testify?

The value an affidavit is (1) in a motion hearing for temporary orders, the court will rule on the basis of affidavits, and (2) at a trial, in case a witness suddenly reverses or forgets their testimony, you can pull the affidavit and ask them, "This sworn affidavit with your signature, states that _______, which is different than what you are stating now. Are you certain that your testimony today is correct?" In short, the affidavit lets you impeach your own witness or at least refresh their memory.

>
>4) Can my husbands visits be hampered by this order of
>protection?

Not really. The order is between you and the other parent, so that only affects "your" ability to be in proximity of the other parent.

>
>Text:
>It is a no contact order of protection from me to the ex.
>
>It states stay away from me, the home of me,
>no communication to me by phone,mail, email, viocemail or
>other means
>
>refrain from assault , harrassment, stalking, menancing,
>intimidation, disorderly conduct, interference with victum or
>designated witnesses of such defense (my husband) and such
>members of the household- my infant son, step daughter during
>visitstion
>
>under specify other conditions defendent must observe: except
>for visitation of child
>
>REMEMBER: Through emails the child is allegedly stating it is
>her choice!
>
>5) Is the first case going to be a Trial? Can we do contempt
>in family court? Can we ask for more time if she is found to
>be in contempt.?

You just asked three questions under the same number. That's a no no. Anyway:

5a. yes.
5b. all courts have contempt powers.
5c. the court will decide a punishment, but you can certainly ask for more time.

[brodrzy]

Socrateaser,
I am not mad, you just saved me a lot of time and work. Sorry about the No
No! I am learning  She did take the illegal vacation.


BD

1) Should we file Violation and Modification of visitation papers based on the ex not acting in the child's best interest?

2) Will the Law Guardian get involved again?

3) Can we get counseling back?

[socrateaser]

>1) Should we file Violation and Modification of visitation
>papers based on the ex not acting in the child's best
>interest?

I think that your best bet may be to file to modify custody on grounds that the custodial parent is clearly acting against the child's best interests. For such a filing, you could use sworn affidavits as proof (depending on jurisdiction, a sworn affidavit may or may not need to be notified (ex: OR = yes, CA = no), rather than actual testimony from witnesses. The only exception is the counselor, who you will need to subpoena in order to obtain her testimony.

Even if your motion failed, you could still file for contempt, but you'll need to subpoena all of the witnesses for that.

>2) Will the Law Guardian get involved again?

You can request that a guardian ad litem be appointed.
>
>3) Can we get counseling back?

Yes, you can request various temporary orders, assuming that the court actually finds your evidence clear and convincing, which is what is necessary for a custody mod.

[brodrzy]

We are going to file modification AND violation as you suggested. Extended visitation time because she is 15 years old, and custody won't be overturned

1) How do we state that dh's rights are being impaired?


2) How old does the daughter have to be, before bm can legally state that
the child is making her own choice?

3) Will it be two different court dates?

Socrateaser, You are awesome! BD

[brodrzy]

Are internet chat lags admissible for either a contempt hearing or modification
of visitation hearing? BD

[socrateaser]

>We are going to file modification AND violation as you
>suggested. Extended visitation time because she is 15 years
>old, and custody won't be overturned.

Are you working with some NY judicial department authorized forms, or are you trying to do this from scratch?

[socrateaser]

>Are internet chat lags admissible for either a contempt
>hearing or modification
>of visitation hearing? BD

Hoo boy.

What are you trying to prove with this log, and what does the log say?