RE: Teenage Boys - Out of State - Visitation

[SFMedic]

Dear Socrateaser,

Today, I received a formal response from my "ex" who resides in (West Virginia) to my motion for "modification and enforcement of visitation", and I reside in (Maryland).  My boys are 14 and 15 y/o, 14 months apart in age.

The "ex" is trying to change the jurisdiction of the case and bring it back to "WV" instead of "MD".  The divorce decree, and previous motion of visistation enforcement from 10 years ago were both initiated and granted from "MD".

The change of jurisdiction is being based on it creating a financial hardship for her, due to the following:

1.  Having to make a 4hr trip

2.  Having to obtain child care (babysitter) for her 10 y/o Son

3.  Having to take off of work

4.  Boys having to take off from school

5.  Because both minor children have resided in the State of West Virginia all or most of their lives

6.  The jurisdiction is more than 100 miles from children home and is inconvientant for things such as witnesses, school, Doctors etc.

7.  To file motions and petitions with MD attorney's warrents that I take off work for such meetings as attorney's or court dates

8.  I am the main support system for my youngest Son and this is a burden on me financially.

9.  When I have to go out of town for court session, I must find child care for youngest Son.

10.  This is no longer in the best interest of all 3 of my children due to traveling, myself missing work and children missing school


She states since the order, circumstances have changed and the order is no longer in the best interest of the children because: "Wishes of the children are that they can have the last few years of childhood to play in sports, go to dances, work, and not to have the threat of inappropriate disciplinary action"

I would add, the children pretty much do what they want at their Mom's house, regarding their school grades, there is no type of punishment or discipline taken.  Compared to my house, where as at first, not playing tv/computer video games are taken away, if failing grades continue, then special events are not allowed if they happen to fall on a Friday that is my visitation weekend.  In the past, I have changed and rotated weekends with the Mother, providing they kept up their grades.

To date, both boys have failing grades, oldest has two "Fs" and a "D", and youngest has an "F".  Oldest is playing sports right now, which is Son's / Mother's primary focus of attention.

The questions I have are:

1.  What is the likelihood of jurisdiction being changed considering we were married and divorced in MD, and I have once before (10 yrs ago) filed a modification / enforcement order and none of this was an issue then?  Boys respectively will be 18 in 2 and 3 years from now.

2.  Do I have the option of filling some type of rebuttal to her stated reasons for wanting to change jurisdiction, if so, what is the proper format?

3.  The same reasons the Mother is stating would also apply to myself regarding child care, as I have a 10 wk old infant.

4.  Regarding Witnesses and/or Doctors, is there a procedure for requesting and obtaining any "verified proof" of names, dates, places and times, if so, what is the proper format?

5.  Regarding the Mother having to take off of work and the kids out of school, wouldn't it be the same thing taking place, even if the jurisdiction of the case was changed or am I looking at this wrong?

6.  What difference would her youngest son (previous marriage) make a difference regarding the jurisdiction, when I would have to find someone to babysit my infant child as well?

7.  If and when this goes to court, could I still anticipate having some type of visitation with my two Sons, even if on a limited basis?

Thanks..!!!!

[socrateaser]

>The questions I have are:
>
>1.  What is the likelihood of jurisdiction being changed
>considering we were married and divorced in MD, and I have
>once before (10 yrs ago) filed a modification / enforcement
>order and none of this was an issue then?  Boys respectively
>will be 18 in 2 and 3 years from now.

Extremely high likelihood that MD will give up jurisdiction, at least as to the modification issue, because as alleged, most of the current witnesses and information regarding the children is no longer available in MD. The fact that your ex has financial and time related issues, however, is irrelevant, but the other issues are more than sufficient to permit a jurisdictional change.

If you were merely enforcing your current orders, then you would probably obtain enforcement in MD. But, as for modification, you're gonna lose this round.

>
>2.  Do I have the option of filling some type of rebuttal to
>her stated reasons for wanting to change jurisdiction, if so,
>what is the proper format?

You can file a "reply" to her "response" but what I would suggest is that you not waste your time, and that you voluntarily withdraw your motion to modify, and ask that the court simply deal with the enforcement issues, or, that you simply file a petition to modify and enforce in WV.

>3.  The same reasons the Mother is stating would also apply to
>myself regarding child care, as I have a 10 wk old infant.

This issue is irrelevant, both for you and for her. The court will ignore it in both of your circumstances. Unfortunately, your ex's other allegations are sufficient to win.

>4.  Regarding Witnesses and/or Doctors, is there a procedure
>for requesting and obtaining any "verified proof" of names,
>dates, places and times, if so, what is the proper format?

You're not clearly explaining what information you seek, but if you seek info from the other parent, then you serve on that person's attorney, a discovery request for production, or a request for interrogatories. If you seek information from a third party, then you must subpoena them to produce the information. If the witnesses live outside of MD, then you must file a petition for a foreign deposition, and this gets very complicated, so if this is the case, then you would be better to file your petition for modification in WV, which will permit you to directly reach the various witnesses, assuming that the witnesses live in WV.

>
>5.  Regarding the Mother having to take off of work and the
>kids out of school, wouldn't it be the same thing taking
>place, even if the jurisdiction of the case was changed or am
>I looking at this wrong?

Irrelevant.

>
>6.  What difference would her youngest son (previous marriage)
>make a difference regarding the jurisdiction, when I would
>have to find someone to babysit my infant child as well?

Irrelevant.

>
>7.  If and when this goes to court, could I still anticipate
>having some type of visitation with my two Sons, even if on a
>limited basis?

You haven't provided me with enough facts with which to reasonably evaluate your case -- any comment on my part would be pure guessing at this point.

[SFMedic]

Dear Socrateaser,

The Mother in question does not have an attorney, she is "pro se" at this time.

You recommended a withdrawl of the current motion and go ahead and refile just an "enforcement" motion, how exactly is that done in terms of the procedure or format?

Would the enforcement motion have a better chance of standig up in court or can the Mother still try and change jurisdiction back to "WV" with myself being in "MD"?

If I withdrawl the motion and resubmit, she also has to be reserved, and I have to wait another 60 days I take it?

Thanks....

[socrateaser]

>Dear Socrateaser,
>
>The Mother in question does not have an attorney, she is "pro
>se" at this time.
>
>You recommended a withdrawl of the current motion and go ahead
>and refile just an "enforcement" motion, how exactly is that
>done in terms of the procedure or format?

I would just show up for the hearing and tell the court that you would be willing to withdraw your current modification request if she withdraws her request to move the jurisdiction, and that the court should proceed only on the enforcement issues. The judge would ask her if she agrees, and if she does, then that's that. If not, then you can still ask for the court to rule on the enforcement issues, even if it dismisses your mod for improper venue.
>
>Would the enforcement motion have a better chance of standig
>up in court or can the Mother still try and change
>jurisdiction back to "WV" with myself being in "MD"?

There's really no legal justification for a dismissal of your enforcement action for improper venue, so I don't see this as a realistic move for the court. Although, being that you're both pro se, the judge may do it, because, there's no attorneys watching who will call bullshit on the judge and report him/her to the state disciplinary authority.

>If I withdrawl the motion and resubmit, she also has to be
>reserved, and I have to wait another 60 days I take it?

Don't do that. Do what I just said. It will save you hassel. I thought you were represented or she was, but as you're not, this is gonna be sort of a free for all in the courtroom anyway.

[SFMedic]

Dear Socrateaser,

Question: Regarding the Judge / Master deciding to rule in favor of "change" in venue and reporting him/her to the State disciplinary authority, is this something I could confront and bring up with the Judge /
Master during trial or only an attorney can site this?

Question:  Is this something that could be appealed to a higher level within the family court system, if so, what would I need to do in order to prepare for this eventuality?

Thanks....

 

[socrateaser]

>Dear Socrateaser,
>
>Question: Regarding the Judge / Master deciding to rule in
>favor of "change" in venue and reporting him/her to the State
>disciplinary authority, is this something I could confront and
>bring up with the Judge /
>Master during trial or only an attorney can site this?

You can bring it up, but it's just gonna make the judge even more annoyed. Point being that if the judge intends to violate your rights, he's not gonna care about your knowledge of the law -- he's basically challenging you to try to stop him. I still don't see this as real likely, so don't get yourself all rev'd up for something like this.

>Question:  Is this something that could be appealed to a
>higher level within the family court system, if so, what would
>I need to do in order to prepare for this eventuality?

Nope. You'd need to appeal to the MD Court of Appeals, and that would be a profound waste of time, because you really don't have any legal grounds. You're trying to fight a losing battle. Your train is headed for WV, so you may as well get on board now.

[SFMedic]

Dear Soc,

First off, I wanted to say thanks for your candor with regards to my previous post, questions and your responses to them, they have been insightful, not to mention your responses to other forum members within your group.

I have several questions based on previous responses you have offered to others.

1.  Would filing a petition for Contempt of Court based on "Denial of Visitation" be of any use in relation to my visitation being denied by the Mother?  It's been since July 31st that I last had any visitation with them. This being done as a separate matter from the "Enforcement and Modification of Visitation" petition already on file.

2.  Would submitting a petition for a hearing, with regards to my motion for an "Enforcement and Modification of Visitation" be prudent or should I wait to see what will take place next from the court?

3.  In my previous postings, I forgot to explain, part of the reason for filing the "Enforcement and Modification of Visitation", was to try and consolidate my summer visitation time, currently it's 5 wks in the summer, with only 2 weeks consecutive time, which amounts to 10 days straight for any given (1wk Summer Visitation Period), bringing the boys back on a Monday and picking them up again on Friday of that same week for a given weekend visitation.  Which would amount to a lot back and forth, with the Mother complaining about the number of trips she would have to make versus the boys just staying for the entire time.

4.  The Mother claims bringing the boys down for visitation anymore "is not in their best interest" (from WV to MD), would the "burden of proof" as to why that is be more so with the Mom to prove why this is the case?
Mind you, the boys previously were already brought down by her for 3 weeks this summer before things had changed and I was cut off from them.

5.  The Mother's counter-claim to my motion of "Enforcement of Modification of Visitation" has to do with them attending sports and school dances in spite of having "failing school grades".  Is this (failing grades) something I could bring up in court as the basis for why they are punished - restrictions placed from my end and this in itself is what is considered and listed in the Mother's counter-claim as "inappropriate disciplinary action"?  Could I use their report cards and progress reports as proof of why this has taken place, how the mother has not initiated any after school tutoring for either one in relation to their grades?  Would any of this really matter at all with the Judge?

6.  If my current court order is changed by the Judge, as in reducing my visitation in someway, is it reasonable to assume that I might still have some visitation time if not during the school year, maybe during the summer or should I expect to not seem that at all anymore?  They are currently 14 & 15 y/o, oldest to turn 16 y/o this coming Dec 05.

Thanks....

[socrateaser]

Your thinking is somewhat muddled, so let me try to clear things up:

Winning in court is not what you see on Judge Judy or the People's Court. The judge in a real courtroom has no time, and no interest in entertaining an audience. The judge just wants to get through the case load and then go home -- like anyone else who has a day job.

Your goal is to set out a simple statement of a claim/dispute that the judge has authority to resolve, and then place against it evidence/testimony that is believable as what you claim it to be, and that tends to prove or disprove some element of your claim.

If you prove each element, then it becomes the other party's job to try to discredit your evidence sufficient to make your proof no longer believable.  If the other party has a similar claim, then they need to do the same as you for their claim and you need to make their evidence no longer believable.

 So, take your claim and set out your evidence and then ask yourself if you were the judge, (1) is there enough evidence here to support this claim; (2) if there is, do I believe the evidence after hearing both sides of the story?

If you answer yes to #1 and #2, then you win your claim. Otherwise, you lose. Same for your opponent.

That's the whole banana.

[SFMedic]

Dear Soc,

As of two weeks ago the Mother has received through certified mail and first class mail answers to her motion for change of venue and also my requesting a hearing to modify / enforce my standing court order.

Since that time my two boys are now completely refusing to talk with me at all over the phone, to include the mother, who is also refusing to talk with me about what is going on with them day to day, especially where their schooling is concerned and after school extracurricular activities.  So at this point I'm systematically and deliberately being kept in the dark by the mother.

The Mother had stated we have nothing to talk about until we go to court.

I'm still waiting to find out if there will be a scheduled court date/hearing.

Besides keeping and maintaining a log of my phone calls, is there anything I can no in terms of being proactive?

Thanks...

[socrateaser]

>Besides keeping and maintaining a log of my phone calls, is
>there anything I can no in terms of being proactive?

I don't know how you answered, but it's obvious that you've scared your ex and she's gonna use that fear to influence your kids.

There's really not much you can do. And, in many cases there will never be anything you can do. Frankly, sometimes, the only solution is to tell your kids that you love them and you'll always be there if they need you, no matter what, and then just pay your support and go on with your life, and hope that once they're adults, that they will want to reestablish the relationship.

You may be in that situation.