Preparing for court

[brodrzy]

The question is this, Respondant has defeated, impaired,  impeded or prejudiced the rights or remedies of the petitioner in that:

1) Any thoughts in how to answer?

PS, I would never do this from scratch, I am so not qualified but thanks for
thinking so highly of me! :) Happy Labor Day!:D

[socrateaser]

>The question is this, Respondant has defeated, impaired,
>impeded or prejudiced the rights or remedies of the petitioner
>in that:
>
>1) Any thoughts in how to answer?

The elements of contempt are: (1) a valid and enforceable court order exists, (2) the defendant knew of the order, and (3) the defendant willfully and with conscious disregard, violated the order.

You must state the ultimate facts, which if proven beyond all reasonable doubt, will cause the court to find contempt. So, for example, if you are stating that the other parent interfered with your visitation rights by taking the child on a 21 day vacation, then you would say something like:

"Between ??/?? and ??/??/????, Respondent took the parties' minor child on a vactation, in direct violation of the court's prior order granting visitation to Petitioner during the same time period."

The above statement shows when the contempt occured, and generally how the order was violated. Then, at trial you must prove:

(1) that the order existed prior to the alleged contempt (reference to judgment/order in the court file),

(2) that the other parent knew of the order (reference to the notice of entry of final judgment/order sent by the court, or service of process containing a copy of the order on the other parent, or the letter from the GAL informing the parent that the vacation would violate the order, or the other parent's signature on the order if stipulated to by the parties, or the signature of opposing counsel on the order approving it as to form, which demonstrates that by the law of agency, if the party's attorney knew of the order, then so did the client).

(3) that the other parent actually went on the vacation, by testimony of a third party who from personal knowledge knew that the trip occured, or receipts, checks, statements, itineraries, etc., showing that the trip occurred (all are discoverable from the other parent).

However, remember that although you can discover receipts, etc., you cannot call the other parent to testify against herself, either in person or by affidavit. She has an absolute right to remain silent throughout the entire process, and she can argue law, as long as she doesn't testify as to the facts.

[brodrzy]

In a chat log, the BM tells the child that she is going to be missing a visitation, the child protests, but the Bm tells her she is going to any way, plus the bm suggests that dh could get "physical" with her (He is not abusive, at all!)
The child is aware of parental controls on the computer, it just hasn't been explained in detail. The mother is not aware of this obviously.

1) Can this be submitted for contempt or to modify visitation?


2) Can you modify an order so that fines or some other consequence can be imposed for missed visitation?


We really don't want to have to go to court again for a third time. Thanks, BD

[socrateaser]

>In a chat log, the BM tells the child that she is going to be
>missing a visitation, the child protests, but the Bm tells her
>she is going to any way, plus the bm suggests that dh could
>get "physical" with her (He is not abusive, at all!)
>The child is aware of parental controls on the computer, it
>just hasn't been explained in detail. The mother is not aware
>of this obviously.
>
>1) Can this be submitted for contempt or to modify
>visitation?

Under NY law it is a felony to intercept a "telegraphic" communication unless at least one party to the communication knows of the interception. This law never contemplated the existence of parental controls on personal computers, but the actions of typing information back and forth between parties across a wire is substantially the same as a traditional telegraph communication.

So, when you say that the child knew of the parental controls but that it hasn't been explained in detail, well, now you're splitting a very fine hair, because if what you are saying is that the child doesn't realize that every keystroke is being recorded, then there is no consent of either party, and your revelation of this communication may subject you to criminal charges.

As to the substance of the chat log, it doesn't prove that the vacation took place -- it only proves that the parent intends to take the vacation, and that the child knew this, which could go towards demonstrating the mother's desire to frustrate cooperation and to cause mental distress to the child. But, those are issues for a modification of custody hearing, not for a contempt hearing.

Either way, I cannot advise you to use this information, because if I'm wrong, you're in huge trouble. You must consult with a NY attorney.

>2) Can you modify an order so that fines or some other
>consequence can be imposed for missed visitation?

Theoretically, yes, but I doubt that the court would ever order such a draconian system. The court will want to retain discretion over the sentence on a contempt finding.

[brodrzy]

Thanks again Socrateaser, you are the Guardian angel of Non-Custodial Parents everywhere! I"ll let you know how it turns out! BD

[brodrzy]

Just a recap, We are pro se and my dh is taking his ex to court for Contempt and Modification of visitation. Our pretrial conference is Sept. 19. Our evidence is Emails that cancel counseling appt's and visitation dates, matter of records showing visitation was missed and phone calls blocked, affidavits from the softball coaches and the police station clerk. We can't afford a lawyer.

1) What is the procedure for filing evidence?

2) Is it true that they won't even look at it on this court date?

3) Is it up to us to send copies to her attorney?

Thanks BD

[socrateaser]

>1) What is the procedure for filing evidence?

If you have filed a motion, then you should have supplied copies of the evidence that you intend to introduce at the hearing, as part of your affidavit in support of your motion.

If you failed to do this, then you could file a Supplimental Affidavit in Support of your motion with the relevant facts and evidence that you intend to offer. You do not need to include a witness list, however you must subpoena the witnesses and file the return of service on each subpoena with the court.

>
>2) Is it true that they won't even look at it on this court
>date?

The contempt matter and the visitation matter are different, and each requires different proofs and different hearings. If you have provided evidence to the court, the court will certainly read it, and may rule on your motion to modify visitation immediately (unlikely, but possible). The court will absolutely not rule on the contempt, unless the other parent admits the substance of the contempt in open court -- which won't happen if she is represented by legal counsel.


>3) Is it up to us to send copies to her attorney?

You are required to serve the other party with a copy of your motion, which would include copies of your supporting evidence. Generally, attorneys will attempt to examine each other's evidence and try to stipulate to the admissibility of evidence not reasonably in dispute, so as to save themselves and the court, time at trial, otherwise wasted in authenticating evidence.

Attorneys will also trade witness lists, and in many jurisdictions, the court requires the attorneys to sign and submit a joint memorandum of matters still in dispute, along with a reasonable estimate of the time necessary to present their respective cases, so that the court knows how to schedule its time.

I must tell you that the kind of questions that you are currently asking me, strongly suggests that you are not prepared to represent yourself in court because you do not understand the process. You should reconsider hiring an attorney.

I know -- you can't afford it. However, in my opinion, you can't not afford it, if your goal is to get any substantial relief.

[brodrzy]

I know what you are saying is true, however my husband has already put out 25,000.00$ to be a part of his daughter's life. I do feel like David trying to sley the giant, but it is either pro se or quit. We will never quit on our children. Thanks again for your help and patience. BD

[brodrzy]

I have  a pretrial conference on Monday for Contempt and Modification. The main things I want minimally are phone contact, counseling for me and my daughter, and more visitation time. I am representing myelf, so I am very willing to compromise.

1) What kind of questions should I be prepared for at this hearing?


2) Is it reasonable to insist that a list of her teachers, her cell phone number and extracurricular activities be supplied by email within 24 hours?


3) Are they likely to support the reinstatement of counseling?



4) Is it likely that they will support reinstating visitation despite the child's age 15 / choice ?

Thank you Socrateaser!

 
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[socrateaser]

>I have  a pretrial conference on Monday for Contempt and
>Modification. The main things I want minimally are phone
>contact, counseling for me and my daughter, and more
>visitation time. I am representing myelf, so I am very willing
>to compromise.
>
>1) What kind of questions should I be prepared for at this
>hearing?

The judge will want to know basically what your complaint is and whether or not there's any opportunity for settlement, and also, how long you reasonably believe will be necessary to make your case, whether you intend to have witnesses appear, any unusual exhibits, etc.

>2) Is it reasonable to insist that a list of her teachers, her
>cell phone number and extracurricular activities be supplied
>by email within 24 hours?

That is ordinarily an issue for a discovery request, which if objected to would be followed by a motion to compel discovery. The issue has no place at the pretrial hearing, although if that's primarily what you're looking for, then telling the judge could get you an order compelling discovery immediately, so it's probably worth a shot.

>3) Are they likely to support the reinstatement of
>counseling?

No point in speculating. Ask and see what the judge says.

>4) Is it likely that they will support reinstating visitation
>despite the child's age 15 / choice ?

Same answer as above.