Re: Teenage Boys - Court Date

[SFMedic]

Dear Soc,

As of this morning, I had a meeting with a CPS case worker, regarding alleged physical abuse against my two teenage Son's (14 & 15) y/o.  The case workers opinion is that there is no bases of "proof" regarding physical abuse taking place.

I informed the case worker, the date the protective order was filed had coincided with the same date, regarding the notice we both received, regarding the Contempt of Court motion that is already scheduled for a court date.  That the Mother was doing this as a means of retaliation for things not going her way.  This has "never" taken place before, and my previous court motions, were already filed since Aug 22nd.

I still have a court date to attend this coming Friday, regarding the protective order.

He also informed me, my Son's may be testifying in person in front of the judge.

1.  Question:  Should the case be dismissed, which I'm hoping it will be and the kids are present in court, doesn't my visitation continue to resume at that point?

2.  Question:  If the kids are present, standing court order states this year I have them for the Thanksgiving holiday, my court papers specifically state visitation begins the Friday before the holiday, if the children are off from school, which they are all next week.  Technically, I should be able to leave the court room with the children, to begin my holiday visitation?

3.  Question:  If the Mother interferes with my visitation (leaving with the kids), would this be grounds for "contempt of court", regarding the same motion (Contempt of Court / Enforce/Modify Visitation) which I already have a court date scheduled for Dec 7th?

4.  Question:  If the boys are present to testify, is it unreasonable to ask the judge to interview them separately and in his chambers?  What would you recommend?

5.  Question:  Is there any other preparation I need to do prior to my court date this coming Friday?  I have pictures to share with the judge that cover the dates (time frame) of the alledge abuse, where they are doing different activities with myself and other family members.  


Thanks..!!!!

[socrateaser]

>1.  Question:  Should the case be dismissed, which I'm hoping
>it will be and the kids are present in court, doesn't my
>visitation continue to resume at that point?

It's at the Court's discretion.

>2.  Question:  If the kids are present, standing court order
>states this year I have them for the Thanksgiving holiday, my
>court papers specifically state visitation begins the Friday
>before the holiday, if the children are off from school, which
>they are all next week.  Technically, I should be able to
>leave the court room with the children, to begin my holiday
>visitation?

Assuming your case is dismissed, then yes.

>
>3.  Question:  If the Mother interferes with my visitation
>(leaving with the kids), would this be grounds for "contempt
>of court", regarding the same motion (Contempt of Court /
>Enforce/Modify Visitation) which I already have a court date
>scheduled for Dec 7th?

You can avoid this issue if you ask the judge to verbally instruct that your visitation is to begin immediately. Do this, the second that the judge says "dismissed," i.e., "Your honor, according to my current visitation order...ya da ya da. In the interest of avoiding any new issue, would your honor please instruct Ms. X that my visitation is to begin immediately?"

>
>4.  Question:  If the boys are present to testify, is it
>unreasonable to ask the judge to interview them separately and
>in his chambers?  What would you recommend?

I recommend that you let the judge handle the questioning. I also recommend that you hire an attorney, but you already know that.

>
>5.  Question:  Is there any other preparation I need to do
>prior to my court date this coming Friday?  I have pictures to
>share with the judge that cover the dates (time frame) of the
>alledge abuse, where they are doing different activities with
>myself and other family members.  

It's impossible for me to advise you without my reading the precise allegations and reviewing the evidence that you have. If this is a contempt hearing or some other quasi-criminal restraining hearing, etc., then you have no obligation to testify, and depending upon the allegations, you may be wise to not testify at all, and merely argue law and cross examine witnesses.

I'm sorry, I just don't remember the facts of your case or history, so I can't give you specific advice unless we start over again.

[SFMedic]

Dear Soc,

The following are the circumstances regarding my case:

I have two teenage boys (14 & 15) y/o, the oldest will turn 16 this Dec 4th.  I live in MD they with their mother live in WV.

On Aug 22nd, I filed a motion to "Enforce & Modify Visitation".  The mother refused to bring the children for scheduled visitation, it's now been 3 1/2 months, since I've had a scheduled weekend with my children.

The last time we were in court was Nov 28, 1994, to "enforce and modify" regarding my oldest son who was 5 then, receiving psychiatric treatment for "acid refulx" and "separation anxiety" from the mother, during my scheduled weekends.  The case was found in my favor, and I essentially received what I asked for.

On October 25th, I filed a "Contempt of Court" motion, due to denial of visitation.

On October 28th, I received notice from the court, that the "mother's motion requesting change of venue", was denied, and we have a scheduled court date for Dec 7th regarding the "Enforce & Modify Visitation".

On Nov 3rd, I received notice regarding the "Contempt of Court", that a court date would also be scheduled for Dec 7th, combined with the "Enforce & Modify Visitation".

On Nov 3rd, the Mother filed a "Protective Order" against me, alleging my physical abusing the children and herself as well (during our marriage) during this entire summer visitation, which was a total of 3 separate 10 day periods, the last time I had them for visitation was on July 31st.

On Nov 10th, I received a phone call from a social services case worker informing me of the protective order, this is how I found out, they couldn't locate me, because I'm Active Duty military.

On Nov 14th, I took part in a home visit interview with the case worker, I was informed his report would reflect there was "no proof" that physical abuse had taken place.  I explained how I've never had a protective order brought against me regarding either the children or their mother, and how this was all fabricated because the mother didn't get what she wanted with her change of venue request.

The case worker informed me that my children may be brought down by the mother to testify in front of the judge.  I was informed also if the children are to resume visitation with me, the mother has expressed fears of them running away from my home, this has never happened in the past or has ever been an issue.

The case worker was also showed pictures taken earlier this year, where the boys and I are wrestling with each other, all of us with chessy smiles on our faces the whole time.  Not to mention, pictures of different activities with other immediate family members through out the 3 weeks of summer visitation.

I informed the case worker, this all center's around their school grades and after school sport activities.  I tie their school grades into them wanting to switch weekends with me to attend after school sport events, school dances and such.  This is something that has been in effect since they started 6th grade, as an incentive to maintain at least a "C" average and completing their homework.  I showed some of the letters that have been sent to the mother recently and in the past, regarding this issue.

On Nov 18th, I have a court appearance regarding the protective order.

1.  Question:  Shouldn't it be a no brainer to the judge, given the dates and circumstances, the mother filed the protective order as a means to try and smear my name, by filing bogus charges in an attempt to terminate my visitation?

2.  Question:  What would be the best way to approach and present this to the judge?  I will be Pro Se during this time, I feel confident the protective order should be dismissed, based on the case workers interview.

3.  Question:  Assuming the case will be dismissed, will this have any bearing regarding the Dec 7th "Enforce & Modify Visitation" and "Contempt of Court" trial date?  Could I use this (case worker report) as evidence of deliberate "alienation" or "further frustrating my scheduled visitation" on the part of the mother?

4.  Question:  If and when the children do runaway (hoping they don't), besides contacting the police, informing them of a runaway child, what else should I do or could I do regarding this issue? How could this effect my continued visitation?

5.  Question:  Regarding this Friday's court date, if the Mother brings other witnesses (close friends / family members) to testify, couldn't I say their testimony is all heresay, considering I haven't been around any of them for at least 4 years if not longer?

Thanks....

[socrateaser]

>1.  Question:  Shouldn't it be a no brainer to the judge,
>given the dates and circumstances, the mother filed the
>protective order as a means to try and smear my name, by
>filing bogus charges in an attempt to terminate my
>visitation?

Under federal mandate, the burden of proof for a protective order is by a preponderance of evidence, and  the other parent need only show that it is more likely than not that she is "afraid" of being "emotionally" abused, and the order will remain in place.

Regrettably, the only sure fire way of beating one of these things is to submit to a polygraph and offer it into evidence. You can offer to do this this at the hearing and it may motivate the judge to become suspicious of your ex's testimony.

Also, while you have given me a very detailed series of events above, you are not telling me exactly what is alleged in her affidavit for the TPO, so I still can't tell you whether there's any other way to defeat it.

>2.  Question:  What would be the best way to approach and
>present this to the judge?  I will be Pro Se during this time,
>I feel confident the protective order should be dismissed,
>based on the case workers interview.

The case worker may not be present, nor her report. The protective order is inadmissible hearsay without the case worker's presense, and if you wanted the case worker at the hearing, then you would have had to subpoena him/her to appear.

This is also true for the children. You have no guarantee that the kids will be at the hearing, unless you have checked the court file and you see a return of service of subpoena for them.

I doubt that they will be brought to testify -- it's incredibly easy to keep a TPO in force without any testimony from anyone other than the other party.

>3.  Question:  Assuming the case will be dismissed, will this
>have any bearing regarding the Dec 7th "Enforce & Modify
>Visitation" and "Contempt of Court" trial date?  Could I use
>this (case worker report) as evidence of deliberate
>"alienation" or "further frustrating my scheduled visitation"
>on the part of the mother?

It could, but it depends upon the actual charges. And, I think you assume too much.

>
>4.  Question:  If and when the children do runaway (hoping
>they don't), besides contacting the police, informing them of
>a runaway child, what else should I do or could I do regarding
>this issue? How could this effect my continued visitation?

If the kids don't want to be with you to the point where there is a reasonable likelihood of them running away, then I'd say you have a serious problem that requires some counseling. A court would probably stop your visitation completely or make it supervised, until you could show why the kids apparently dislike you so much.

>5.  Question:  Regarding this Friday's court date, if the
>Mother brings other witnesses (close friends / family members)
>to testify, couldn't I say their testimony is all heresay,
>considering I haven't been around any of them for at least 4
>years if not longer?

"Hearsay" is an out of court statement by someone other than the declarant offerred to prove the truth of the matter asserted. If the witnesses appear, then their testimony is not hearsay, because they are the declarant and they're saying it in court (unless they are testifying to something that someone else said outside of court -- in which case, that would be hearsay).

Your objection is actually "unfair surprise" if ANY witness appears who was not provided to you on a witness list in advance of the hearing, and your motion is that the court either continue the hearing until you have had an opportunity to fairly prepare to meet their evidence, or that the court exclude the witness' testimony.

What EXACTLY is being alleged for this protective order?

[SFMedic]

Dear Soc,

>>What EXACTLY is being alleged for this protective order?

Child abuse block was checked off, with relief for the mother and minor children checked off, detaining against will checked off, and other.

Details as follows: pulling hair, poking, pushing over a chair.  various times the last time being on or about July 31st (when boys were returned from visitation) father has hit, poked or pulled hair of minor children constantly on visitations.  the adult has threatened and or hit the children and knocked him over a chair, another incident he pulled older son's hair or poked him in chest.

On July 31st, I was on the road taking the boys back to our designated meeting place, and the day was for the most part a normal day like any other.

These accusations are totally blown out of proportion.  As I've stated before, I have pictures of wrestling with the boys, where some of these things actually took place during that time and it was all in fun, with no problem, and again, the case worker seeing pictures of this.

Two different times, when the children were much younger  (8 & 9) they were spanked on the bottom for doing something to the other where they got hurt.

Just last week, I obtained copies of medical records for both children going back to March 04 to present, to demonstrate to the case worker, there was nothing filed or reported regarding myself.  The records did show my youngest son sustaining some minor injuries during sports related activities at school or during a time he was with his mother.

1.  Question:  If there was any truth to this, why wouldn't the Mother or any other self-respecting parent not file some type of charges immediately?

Thanks...

[socrateaser]

>1.  Question:  If there was any truth to this, why wouldn't
>the Mother or any other self-respecting parent not file some
>type of charges immediately?

That's a good question to ask the other parent under oath.

If, as you say, the mother's complaints are ONLY that you are abusive the children, then unless the children testify, then the mother's case is entirely hearsay, and you should immediately state a hearsay objection to every single statement by her that starts with the words, "My son said...", or the like.

If the judge overrules your objection, you should say, "Your honor, a hearing for a TPO is quasi-criminal in nature, because once the order is in place, I can be arrested merely on the claim by the other parent that I am violating the order. Under the U.S. Supreme Court ruling in Crawford v. Washington, hearsay evidence such as what is being offered by the other parent, is an inadmissible violation of the confrontation clause of the U.S. Constitution, because the witnesses, my children, are available to testify. Therefore I reinstate my hearsay objection."

Even if you are ultimately overruled, you should politely object to each and every hearsay statement by the other parent about what the children" said.

Obviously, if the kids show up to testify, then you need to use the unfair surprise objection, that I already provided. However, don't allow yourself to be tricked, because just because the kids are in the courthouse, doesn't mean that the mother's statements about what the kids said, isn't hearsay -- it is. You object and remind the court that the children are readily available and that the other parent shouldn't be permitted to advance any of your children's testimony.

Once again, the most persuasive thing that you could say to the judge would be, "Your honor, Petitioner's allegations are fabricated for the sole purpose of punishing me because I have attempted to enforce my visitation rights under the existing custody orders. I would be happy to offer to continue this hearing, and submit to a polygraph exam on Petitioner's claims of abuse, on the condition that if I pass the exam, that Petitioner be ordered to reimburse me for its costs, and on the further condition that Petitioner also submit to a polygraph as to whether or not her allegations are true."

This would put the entire ball in your ex's court. Judges know that almost no one can fool a polygraph examiner, so anyone who offers to submit to an exam, immediately raises a very weighty argument suggesting that the other party is misrepresenting the allegations.

[SFMedic]

Dear Soc,

Great news..!!!  The protective order was dismissed.  We both were at court Pro Se.  The judge had specifically told the mother there is no reason he could see why my visitation should be denied or why she's been denying it for the past 3 1/2 months. The mother also brought the children, which didn't have to testify, their testimony was taken during a 20 minute recess by the MD CPS case worker, because Social Services from WV never faxed a report to the CPS case worker prior to trial.

The judge instructed her there is no reason for my visitation to not resume immediately.  He also made a comment how he noticed my "Contempt of Court and Enforce & Modify Motion (Dec 7th)" were rolled up in one.  The Judge went on to say, "it was obvious there were some behind the scenes discipline issues taking place".  How the children would naturally side with the parent who was less strict than the other.  The mother responded how she couldn't make them get into the car and brought down, the Judge responded "then it sounds like you have some discipline issues in your home, the children are teenagers and cannot just decide on their own when they feel like coming"!

He warned the mother, he could only rule on the proctective order, but that if she continued to deny my visitation, and when we come back to court, I could end up being awarded additional time for the number of days I've missed, and how she could end up having the boys put in foster care through a "CINA" (not sure of the spelling?), which I'm assuming would mean I may be awarded custody?

As the mother was being told this by the Judge regarding the case being dismissed, she started to self-destruct in the court room.  As the mother was passing through the court doors into the hallway, I asked about resuming my visitation, she turned towards me and yelled "go to hell" and took off with the children.  When she made this comment, it was in front of my entire extened family, who was made to wait outside during the court proceedings (they were potential witnesses).  I asked about resuming my visitation, because I'm to have the boys for the Thanksgiving holiday.

If I don't see the children during Thanksgiving, my next scheduled visitation is not until Friday (Dec 9th) of the week we go to court (Dec 7th).

Yesterday, I mailed a letter to the mother and the courts that said the following:

Dear Xxxxx,

   I'm writing with regard to the ruling and circumstances that took place, during our November 18th court date, involving the dismissal of the protective order and resuming my visitation.

   I would like to be able to resume visitation with Xxxx Xx. and XX without further litigation.  We would like to work with the boys, to rebuild our family, without any additional hardships or stress on either side.

   I would hope that your response in the hallway, with regard to resuming my visitation, was due to emotions running high on the day of our hearing.  I would ask for your cooperation, by allowing me to resume my scheduled visitation, per the standing court order, so that the boys are able to enjoy, the Thanksgiving holiday with our family.

   I would like to pick up the boys on Wednesday evening (Nov 23rd), at our designated meeting place, the "Little Sandy's Truck Stop" on I-70 exit 3 no later than 6:30 pm.

   I can be reached at the following numbers home: XXX-XXX-XXX or cell: XXX-XXX-XXXX.    I look forward to hearing from you ASAP regarding this matter.  If not, I will assume you are continuing to deny my scheduled visitation, and attempting to further alienate the boys from me, as well as their extended family.

1.  Question: Can the results of the protective order be used in anyway during the Dec 7th pre-trial conference?  If so, how is the best way to present to the Judge?

2.  Question:  If the mother still refuses my visitation for the Thanksgiving holiday (officially starts Weds evening at 6:30 pm), and doesn't respond back in anyway to my letter, what would be the best way to present that to the Judge?

3.  Question:  Can the comment she made in the hallway be used at all during the Dec 7th pre-trial conference?

4.  Question:  Should I be denied the Thanksgiving holiday, I plan on asking the Judge for Thanksgiving for next year 2006, would this be an unreasonable request?  I've missed 31 days so far.

5.  Question:  Given the number of days missed, I will also ask for the entire summer versus my current 5 weeks which is broken up time, currently I can only take 2 wks consecutive time, which the mother always complains about doing the drive.  Would this be an unreasonable request?

6.  Question:  Any other recommendations or areas I should covered would be greatly appreciated.  

Thanks....

[socrateaser]

Congrats (but, don't get cocky). It never ceases to amaze me how parents (both fathers and mothers) use their kids as weapons and shields to avoid having to take responsibility for their own failures in life.

>1.  Question: Can the results of the protective order be used
>in anyway during the Dec 7th pre-trial conference?  If so, how
>is the best way to present to the Judge?

Yes, get a transcript of the record and the minute orders from the hearing.

>2.  Question:  If the mother still refuses my visitation for
>the Thanksgiving holiday (officially starts Weds evening at
>6:30 pm), and doesn't respond back in anyway to my letter,
>what would be the best way to present that to the Judge?

If she doesn't show at the truck stop, I would drive to the home with a friend and a video recorder and tape yourself attempting to assert your visitation and the argument that will almost certainly ensue (you could use just a dictation recorder also, as long as you have it in plain sight and let the ex know you're recording the transaction -- make sure you get the time and date and location on the tape.

Then you can just playback in court and the judge will probably have had enough.

>3.  Question:  Can the comment she made in the hallway be used
>at all during the Dec 7th pre-trial conference?

She didn't say you're never gonna see the kids again, but it does show that she doesn't care what the kids hear related to her opinion of you, and that shows she will not hesitate to act to undermine your relationship with the kids. Now, was there anyone who heard the remark who is not family or friend who will testify to it? If not, then you're wasting your time, unless the mother admits in court to having made the comment in front of your children.

>
>4.  Question:  Should I be denied the Thanksgiving holiday, I
>plan on asking the Judge for Thanksgiving for next year 2006,
>would this be an unreasonable request?  I've missed 31 days so
>far.

I think you should be moving for a change in custody if she refuses you for Turkey day. It's apparent that the judge has had enuf of this, so I would jump on the next big contempt.

>5.  Question:  Given the number of days missed, I will also
>ask for the entire summer versus my current 5 weeks which is
>broken up time, currently I can only take 2 wks consecutive
>time, which the mother always complains about doing the drive.
> Would this be an unreasonable request?

Wait till after Thursday before considering what you want, because I have a hunch you may be able to get a lot more.

>
>6.  Question:  Any other recommendations or areas I should
>covered would be greatly appreciated.  

No, you're doing pretty well. Just love your kids and things should continue on that route.

[SFMedic]

Dear Soc,

In advance, thanks for the valueable insight.  Regarding taking responsibility, I'm well aware, regardless if it's my standard visitation taking place, or having to resort to fighting for change of custody, some serious family counseling will be needed, to assist for as much as possible a stable transition to take place.

>>If she doesn't show at the truck stop, I would drive to the home with >>a friend and a video recorder and tape yourself attempting to assert >>your visitation and the argument that will almost certainly ensue (you >>could use just a dictation recorder also, as long as you have it in >>plain sight and let the ex know you're recording the transaction -- >>make sure you get the time and date and location on the tape.

1.  Question: The Mother lives in Morgantown, WV, should I go to her door with a Sony Handycam at the ready, and a tag along friend, don't I run the risk of finding myself arrested for trespassing on her property?  Is the intent of my coming to her property, besides picking up the children, hoping she'll contact the authorities, so I can have a written statement (Police Report) of my presence, just asking for clarification?

>>She didn't say you're never gonna see the kids again, but it does >>show that she doesn't care what the kids hear related to her opinion >>of you, and that shows she will not hesitate to act to undermine your >>relationship with the kids. Now, was there anyone who heard the >>remark who is not family or friend who will testify to it? If not, then >>you're wasting your time, unless the mother admits in court to >>having made the comment in front of your children.

2.  Question:  Yes there were other individuals, the MD CPS case worker was well within ear shot, and actually witnessed her storming out of the court room into the hallway, along with the Rabbi, who's been assisting me through the whole process.

3.  Question:  Even though the MD CPS case worker witnessed and heard the statement being made, and knowing I would have to supeona him to be present, couldn't the mother just turn around and claim he's a tainted witness regarding his testimony?

4.  Question:  The MD case worker, made a comment after the mother left, how it didn't dawn on him, during the past 14 1/2 years the boys have been with me for scheduled visitation, there has never been a time or incident where the mother filed a complaint or report, regarding the initial Protective Order, is this also something I could or should bring up during the pre-trial conference?

Thanks....

[socrateaser]

>1.  Question: The Mother lives in Morgantown, WV, should I go
>to her door with a Sony Handycam at the ready, and a tag along
>friend, don't I run the risk of finding myself arrested for
>trespassing on her property?  Is the intent of my coming to
>her property, besides picking up the children, hoping she'll
>contact the authorities, so I can have a written statement
>(Police Report) of my presence, just asking for
>clarification?

Criminal trespass requires some intent to do a criminal act. Picking up your kids doesn't satisfy, therefore, while you could be sued in civil court for trespass, you aren't gonna get arrested, unless you do something stupid.

You need to have a certified copy of your court order. Ideally, that order would be registered in WV, that way a local sheriff could actually force your ex to transfer the kids to you. But, let's face it, you don't want an altercation. What you want is your kids, and if your ex won't turn them over with a smile, then you want a recording of her frown for a judge to view and find her in contempt, and then reverse custody.

>2.  Question:  Yes there were other individuals, the MD CPS
>case worker was well within ear shot, and actually witnessed
>her storming out of the court room into the hallway, along
>with the Rabbi, who's been assisting me through the whole
>process.

The caseworker and/or the Rabbi are the witnesses whom you want subpoenaed to appear at the 12/7 hearing, asuming that they  agree to have witnessed the incident as you describe it.

>3.  Question:  Even though the MD CPS case worker witnessed
>and heard the statement being made, and knowing I would have
>to supeona him to be present, couldn't the mother just turn
>around and claim he's a tainted witness regarding his
>testimony?

Judges get paid to judge witness credibility. Who do you think the judge will believe, the mom or the caseworker (or the Rabbi)?


>4.  Question:  The MD case worker, made a comment after the
>mother left, how it didn't dawn on him, during the past 14 1/2
>years the boys have been with me for scheduled visitation,
>there has never been a time or incident where the mother filed
>a complaint or report, regarding the initial Protective Order,
>is this also something I could or should bring up during the
>pre-trial conference?

"Couldn't hurt."