Substantial Change

[Ref]

I filed for a decrease in CS and BM decided to counter sue for Modification of Visitation and Contempt. We just got done with Modification of Visitation last year (to increase it).

She is also claiming that I do not deserve a decrease in CS but only a temporary decrease until I get a new job. She claims I have a history of unemployment and she believes I am going to try to be unemployed for a long time due to this history. I have been employed fully for 11 years. I only was unemployed in 1993 because I left the military and it took about 5 months to find a civilian job. I have no college degree and there is no way I will make the kind of money I did at my old job. All the jobs online ask for a degree and offer about half of what I was making for salary and estimated commissions.

She is claiming the substantial change in circumstances since last year, for the modification of visitation is that our daughter is 15 this year. Her first arguement is that I fly my daughter back to her home too late and if there is a weather problem, she may be stuck at the connecting airport.

SD will no longer be required to fly as an unaccompanied minor, so those protections can no longer be in place. I actually never sent my daughter home so that her plane would land later than 9pm (most of the time the flights are before 4 pm). She did have a problem with one of the last flights due to a thundestorm, but I flew her back the next morning. There was no chance of her getting stuck at the airport. I did book her on a late flight to fly to me recently, but my ex's argument is regarding flights to her for some reason.

She also argues that at 15, my daughter would like to work in the summer time and the fact that I have her for substantially all of summer, this is not possible. She also states that my daughter misses her friends. My arguement is that she can work while she is with me in the summer and all of her family except her mother are here where I live and she deserves to have a relationship with them. She also has friends here. I have a printout of a blog page that she says that she will miss them when she returns to her mom's home.

She also states that my daughter needs more than one week from the time school starts to reacclimate herself to living with her mother and prepare for school. She is asking for my summer break to be reduced only 1 week this year but to decrease more and more as my daughter gets older.


She also wants to decrease the 3 day weekends that I have my daughter to half of what I received last year. She states that they are disruptive to my daughter to have her fly to see me on those times and the frequecy of the 3 day weekends lately have caused undue stress. I have had my daughter away from her mother's town for a three day weekend 2 times over the past 11 years. The first I flew her to Orlando to go to Disney with me and my wife in 2003. This was a 30 minute flight. I had her fly to my home for Labor day 2004. That is it.

It actually states in our parenting agreement that I have my daughter for certain holidays that are a part of the 3 day weekend but it does not include the weekend attached. I have to spend all weekend visitation at her mother's location with 7 days notice. It seems obvious that she is asking for me to have my visitation reduced for no reason. I don't even have rights to the long weekends anywhere but at my ex-wife's city.

She is sueing me for contempt over two matters. The first is regarding her July 4th visitation this summer. As with my long weekend visitation, she has to have the weekend in my town. She has the holiday from 9am the holiday day to 9am the following day. She informed me that she was flying my daughter back Friday mid-morning and returning her after 8pm Tuesday. Initially I told her that she could not fly daughter down but had to spend the weekend here. BM flipped out and sent daughter for summer vacation with the tickets anyway and a letter stating how much she will miss her and hopes that I wont make her stay with me.  She also sent her with a copy of the Parenting agreement and $70 cash.

I thought about it and agreed to send her down to be with her mother. The only conditions I made was that daughter's flight times change so that I wont miss as much work and so that she wont miss that much camp. I explained that I paid for camp and that I was concerned about losing my job. I sent my ex this letter by FedEx. She refused to accept it. I sent her a copy in an two emails and she blocked my address. I sent her a certified letter and she refused to sign for it. I left her two messages and she refused to return my call. Later she left me a message stating that she had every right to refuse all letters and not communicate with me.

She is now sueing me for contempt over the full price of the tickets and  for make-up visitation.
 
She is also sueing me for contempt about our itinerary clause in our parenting agreement. It states that if our daughter spends over 24 hours away from either of our homes, that the parent she is with must tell the other the place daughter will be staying, phone, and who they will be with. She states that I refuse to give her this information, particularly regarding a trip we made during last summer.

I have copies of the notices that I sent FedEx to my ex-wife. One of the FedExs she refused to accept. I sent her an email to back that one up, but the email was blocked. I have proof of 3 out of 4 of the trips I have taken my daughter on. The one she specified is the one I have no proof for. I called her to let her know that we were going out of town. She had refused all other mail and email, so I had no choice but to simply leave her a message. She states that she had no way of contacting daughter as a hurricane rolled through her state. She called our home, my cell phone and my daughter's cell phone that day. Daughter called her back within 24 hours of her first message.

She has never informed me of when my daughter was away for over 24 hours. I have about 20 counts of contempt that I have been holding back on filing for the sake of peace, but I think I am going to stick her with them now. Some are really easy (court ordered money), others are soft like the itinerary issue.

1. Should I prepare myself to prove my employment for the past 11 years?

2. Would the fact that she lied about that enough to effect the outome of my CS case?

3. Is the fact that my daughter is 15 and able to fly alone this year enough for a substantial change? The fact that she wants to work? The fact she misses her friends?

4. Do you think stating that my daughter can continue to fly as an unaccompanied minor until she is 17 as long as BM pays the fees acceptable middle ground to keep my ex from worrying about our daughter getting stuck at an airport? (my daughter has been flying since she was 7 years old. She knows the airports better than the flight attendants that watch her sometimes) I would hate to do this to my daughter, but if it shuts up mom....

5. Will the fact that our parenting agreement does not allow for long distance longe weekends put an end to her requesting that my holidays get cut in half?

6. Do you think I have enought to stiffle the July 4th contempt. (I acted in good faith)?

7. How does it look that I only called BM regarding the trip rather than FedEx or emailed her based ont he fact that she refuses all communication?

8. I know I can get several contempts against her. Should I go for all of them, even the softer ones like the itinerary and the fact she doesn't notify me when our daughter is ill?

Thanks
Ref

[socrateaser]

>1. Should I prepare myself to prove my employment for the past
>11 years?

Couldn't hurt.

>
>2. Would the fact that she lied about that enough to effect
>the outome of my CS case?

Nope, but it will hurt her credibility with the judge, when you bring it to the court's attention.

>
>3. Is the fact that my daughter is 15 and able to fly alone
>this year enough for a substantial change? The fact that she
>wants to work? The fact she misses her friends?

That was three questions. (a) Just because she's able to fly unaccompanied, doesn't mean that you can't still use the service to protect the child during a flight that's not non-stop. And, this issue is irrelevant to proving a substantial change; (b) This could be a change IF she ACTUALLY obtains employment. If not, then there's no change in circumstances, merely a change in mental state. As you say, she can work while she's with you -- it's only a summer job, so there's no issue with a carryover into the school year; (c) This is an issue. Frankly, if the child doesn't want to come visit, then you're gonna lose, if she decides to testify. The judge will probably want to appoint a GAL to determine the child's interests. You need to have a heart to heart with the kid and find out what she really wants, before you start throwing your money and resources away trying to maintain a situation that she's gonna hate being a part of.

>4. Do you think stating that my daughter can continue to fly
>as an unaccompanied minor until she is 17 as long as BM pays
>the fees acceptable middle ground to keep my ex from worrying
>about our daughter getting stuck at an airport?

This is irrelevant. It's a typical rant from a person who doesn't think before she writes.

>5. Will the fact that our parenting agreement does not allow
>for long distance longe weekends put an end to her requesting
>that my holidays get cut in half?

The court must determine if there's a substantial change. So far, I'm not reading any facts proving this, therefore, you should get a dismissal, UNLESS the child wants to testify that she doesn't want to spend summers with you.

>6. Do you think I have enought to stiffle the July 4th
>contempt. (I acted in good faith)?

I need to read the EXACT text of the allegation for contempt, and then read your EXACT defense. Your paraphrasing of the issue is not sufficient for me to make a reasoned determination.

>7. How does it look that I only called BM regarding the trip
>rather than FedEx or emailed her based ont he fact that she
>refuses all communication?

See #6.

>
>8. I know I can get several contempts against her. Should I go
>for all of them, even the softer ones like the itinerary and
>the fact she doesn't notify me when our daughter is ill?

If you can prove them up, then go for it, if only to get her to withdraw hers.

[Ref]

I'll get back to you about the "exact wording" that you need. In the mean time, I have acouple of quick questions.

I have always told my daughter that when she is 15 we can discuss the summers. I am perfectly fine with some flexibility. I would rather be able to work with my daughter between the two of us and not have the court limit the time I just got rights to having last year.

My exwife states that she would like to have my daughter have an extra week at home this year (she will likely get anyway because I am planning a honeymoon around then) and she did not specify how much time that she wants my summer visitation reduced in later years only that she wants it to be less and less as my daughter gets older.

1. Would it be helpful for me to approach the judge by saying that I am willing to work with my daughter so that her time may be adjusted as she gets older, but would like to maintain the ablility to have the final say?

My ex wife has a record of simply trying to limit my time and I have no confidence that if I lose that right that I will ever be able to be on her good side enough to see my daughter for any additional time I would request after the visitation is limited.

2. Is there a better way to approach it, in your opinion?

3. When would my ex have to specifically state how much time she wants to shave off my summers?

4. When would my ex's lawyer have to tell me that my daughter might be testifying?

Thanks Soc

Ref

[socrateaser]

>1. Would it be helpful for me to approach the judge by saying
>that I am willing to work with my daughter so that her time
>may be adjusted as she gets older, but would like to maintain
>the ablility to have the final say?

I think that you will get farther with "Your honor, my primary concern is in advancing my child's best interests and nothing else, so if my daughter really doesn't want to spend time with me, while that would sadden me enormously, because i believe that I have some value to provide her that her mother cannot, I will not allow my personal wants to interfere if the child's interest are not well served."

The objective is to get the judge to think, "This guy's not thinking about money or how much losing custody will cost him. He actually cares about the kid. And, the mother's obviously trying to squash his time, because she wants mo' money. So, screw her."

Get it?

>2. Is there a better way to approach it, in your opinion?

See above.

>
>3. When would my ex have to specifically state how much time
>she wants to shave off my summers?

After she shows the substantial change, and I don't think that's happened, so you may never get that far.

>
>4. When would my ex's lawyer have to tell me that my daughter
>might be testifying?

The child won't be allowed to offer oral testimony at the preliminary hearing, so the testimony would come as a sworn affidavit from the child, or an affidavit from a therapist/counselor, etc., which would almost certainly result in the court ordering a GAL to find out what's really up.

If your child were to tell you that she doesn't agree with her mom's view, then you could testify in court that you spoke with her and that the mother's position is not the child's. Then, there would just your word against the mom's, which would be insufficient to get a new hearing on custody.

Better yet would be to get the kid on tape saying "I want to go to dad's for summer." I don't really know if this is true, so you could be spinning your wheels. Kids are difficult to figure, especially in their teens. Bottom line is if daughter finds a boyfriend in proximity to her mom, then you're toast. If she finds one during summer while with you, then mom is toast.

[Ref]

As it relates to July 4th -

PARENTING AGREEMENT:


Hours of Shared Parenting:
Hours of shared parenting for Memorial Day, July 4 th , Labor Day, Mother's Day, Father's Day, and school planning days, shall be from 9:00 a.m. until school begins the following morning (if in session), or otherwise at 9:00 a.m. the following morning when the child is returned to the PRP, or day care, if applicable.

Weekends -

Upon minimum of 7 days notice, but with as much notice as is possible, Father can exercise weekend visitaion in [Mother's town].

(This next part is from the standard agreement which the only modification for long distance was as stated above.

Weekends:

The Secondary Residential Parent (SRP) shall be entitled to alternate weekend parenting time commencing on the first (1 st ) Friday following a hearing addressing parenting time, mediation, or such other times as the parties may agree in writing. Said parenting time shall start Friday from the time school recesses, or one (1) hour after school if the child(ren) needs to retrieve personal items from home (the one [1] hour does not apply if the secondary parent supplies all necessary clothing, accessories, etc.) or it starts otherwise at 6:00 p.m. if due to work related reasons the Secondary Residential Parent (SRP) is unable to start parenting time after school recesses. Parenting time continues through Monday morning. If school is in session, the child shall be taken to school by the Secondary Residential Parent (SRP). If school is not in session, the child shall be returned to the Primary Residential Parent's (PRP) residence, or day care (if applicable), by 9:00 a.m. Once the child(ren) is/are picked up, it is the Secondary Residential Parent's (SRP) responsibility to house and care for the child(ren) during this time period unless the Primary Residential Parent (PRP) agrees that the child(ren) should be returned early

Summers:  The PRP shall have the same weekday and weekend visitation, as well as communication rights, during the summer as the SRP has during the year


MOTION FOR CONTEMPT

The former husband refused to all the Former Wife to exercise her weekend with [Daughter] for the Fourth of July in the year 2005.

Even though the Former Wife paid for airplane tickets and gave the Former Husband more than adequate notice of the fights so that [daughter] could fly home from Pennsylvania for the holiday and the preceeding week-end, the Former Husband refused to honor the Former Wife's visitation rights.

The Former Wife should be reimbused for the price of the air fair and should be allowed make-up visitation.

FACTS

1. The tickets had flight times of 11am on a Friday and DD was returning at 8:30pm on Tuesday.

2.  I told BM that DD was not going to fly down to Florida for July 4th because she is to follow the same rules as I do and she will have to spend her weekend time in PA. I offered to help her with finding lodging and car rental. In a letter that I sent FedEx with her signature.

3. I changed my mind and offered to allow DD to fly to Fl under 2 conditions. (1) The flight times be changed so I don't have to miss work on Friday (we live 2 hours from the airport and my company was going south at that point) and return DD on Monday Night so that she wouldn't miss camp. (2) She agree to change out parenting agreement to also allow me to see DD outside of her town as she can see DD outside of mine. I sent this offer by FedEx and she refused it (I have the returned sealed envelope). I sent her 2 emails (I have them certified delivered and record that she blocked my addy). I left her 2 messages (one telling her that I had FedEx hold the letter an extra day at the facility so she can pik it up and respond).

She also wrote me a letter and left me a voicemail that says that she doesn't need to respond to me at all and she has every right to not communicate with me.  (Parenting Agreement: Decision Making: Each party has a right to confer with the other pertaining to all major
decisions affecting the welfare of their child(ren))

4. As far as payment and make-up visitation goes. BM owes me about $600 for not showing up at a deposition (court ordered), and various travel expense that our ageement states that we are to share. I ask months ago for her to pay me back (the original order was over a year ago). She stated in a letter (also months ago) that she is backing the July 4th ticket costs out of that.  She also asked , prior to the contempt charge, that she be able to use time off Thanksgiving or Xmas as make-up time. I forwent my Thanksgiving visitation this year (only flights would bave been Thanksgiving day and that would have been crappy to do to DD). I left a message for my ex (I recorded it as well) stating that I didn't think she was entitles make-up visitation, but if it makes her happy she can consider this it.

As it Pertains to Itinerary

PARENTING AGREEMENT

Trip Itinerary:

Each parent has the right to know the whereabouts of the child(ren) when parenting time will be exercised in a different locale other than the home. Should either parent have the child(ren) away from their normal residence for a period of more than 24 hours (e.g. for a trip or vacation) then such parent shall provide the other with an itinerary of where the child(ren) will be staying providing addresses, telephone numbers of each location, the length of the stay, the name of all persons who may provide care for the child(ren) during the stay, the departure date, and the date of return/arrival. In case of an emergency involving the child(ren) and in the best interest of the child(ren), each parent is encouraged to communicate with the other(unless prohibited by Court order) when he or she will be traveling away from home for less than 24 hours. The parties should provide the other parent with telephone number(s), pager, voice mail, or a third party so that the parent may contact the other parent if there is an emergency involving the child(ren).

MOTION FOR CONTEMPT

The [] County Shared Parenting Schedule requires Former Husband to provide itineraries for trips the he and [daughter] take during the time she is with him for visitation.

The Former Husband has refused to do so and the Former Wife has no way of contacting [daughter] during the trips that [daughter] takes with Former Husband.

The last time this occurred is when Hurricane Dennis was off-shore; the Former Wife has no means of contacting Former Husband and [daughter] had her house been damaged or if other huricane-related conditions made it necessary for her to contact them.

FACTS:

1. I had taken DD on 4 trips since the last modification. I sent the first 2 notifications by FedEx with her signature. The third was this Hurricane Dennis trip. The fourth I sent a FedEx and an email stating that I was not sure how to contact her about these things because she rejects my letters so I an sending a FedEx and an email to hope it gets through.

2. As far as the Dennis vacation goes, BM refused at least 3 communications by FedEx and Certified letter that I had sent. I was put in the position of calling her and leaving her a message. I do not have anything to support that I did call except a record that the call was made on our phone bill. (I am hoping that the judge will see my past attempts and see her rejection of written communication and see that I had to do that) Also, we were only planning on being out of town for about a day. If we did not hit traffic on the way home, we actually would have beaten the 24 hour mark. We left Sat. Afternoon and returned Sun evening.

3. BM left a message on my home machine asking daughter to call her back Sat afternoon. She called again Sat eveing asking that DD call her the next day. BM called DD's cell phone (which I bought her) and left her a message (I did not know) on Sunday am. She left our home machine a message on Sunday am. stating that I was keeping DD from calling and questioning my character adn stating that she called DD's cell. She then called my cell and left a message equally as rude. About 9:30am I checked my messages and found that she called. I told DD to call her mom right away and she did. All the calls on Sunday were within minutes of each other. From the time of the first message to the time DD called her, no more that 20 hours passed.

4. I have given her my home phone, work phone, cell phone, and several email addys to contact me. She also has DD's cell phone. She refuses to give me anything (even her work phone incase of an emergency while DD is with me) except her home number.

Those are the 2 contempts. I guess my only question is

1. What do you think?

Thanks for all your help
Ref

[socrateaser]

>>1. What do you think?

Re the first contempt, I don't see where the orders give the mother the right to any holiday time during summer vacation. There's wording about weekend and weekdays, but not one word about holidays. If this is true, then you're not legally obligated to turn the child over at all for July 4, in which case there's no contempt.

If there's something in the orders that I'm missing, maybe it's because you didn't post it, but I'm not seeing anything in what you have posted that gives mom grounds for contempt.

Re the second contempt, you evidently have the returned certified mails, hopefully unopended, so that you can question the mom on the witness stand as to why she refuses to accept your written itinerary notices.

You don't have to testify at a contempt hearing, and hopefully you haven't sent the court any written responses to allegations made by the mother.

The  burden is on the mother to prove BEYOND ALL REASONABLE DOUBT, that you have willfully and with conscious disregard, violated the court's orders. This means that she must prove beyond reasonable doubt the negative that she never received any itinerary. You can simply ask her to explain why she doesn't accept the certified mail itineraries, and then ask her that in view of the fact that she habitually fails to accept your certified mail, how does she expect to EVER know of any itinerary that you provide.

Note, you don't have to prove that you sent her or called her anything. She must prove that you didn't and she must do it beyond all reasonable doubt. This is impossible, unless you have written something about it to her or to the court in which you have admitted not sending an itinerary.

Have you shot yourself in the foot?

[Ref]

I haven't responded at all.

I think this may be the part that I am missing in trying to be brief:

PARENTING AGREEMENT

Holidays and Other Parenting Times: In odd-numbered years, the SRP shall have Memorial Day, the Thanksgiving holiday, as well as Martin Luther King, Jr. Day, and the PRP shall have July 4 th , Labor Day, and President's Day. In even-numbered years, this schedule is reversed.

Does this change matters at all?

[socrateaser]

>I haven't responded at all.
>
>I think this may be the part that I am missing in trying to be
>brief:
>
>PARENTING AGREEMENT
>
>Holidays and Other Parenting Times: In odd-numbered years, the
>SRP shall have Memorial Day, the Thanksgiving holiday, as well
>as Martin Luther King, Jr. Day, and the PRP shall have July 4
>th , Labor Day, and President's Day. In even-numbered years,
>this schedule is reversed.
>
>Does this change matters at all?

OK, well, the orders clearly show that it's 9am July 4 to 9am July 5, and if the tickets required the child be away from you for a longer time period then you aren't in contempt for failing to honor them, because that's not what the orders demand. As you say, the mother was welcome to come to your home and take the child for the day.

So, if I understand the orders correctly, then:

1. I would put her on the stand and have her read the orders to the court.
2. Then I would haver her read me the flight times of the airline tickets that she bought.
3. Then I would say, "The flight times of the tickets that you purchased don't fit within the time allowed in the order do they?"
4. Then I would ask her why she didn't come to PA and take the child for the day?
5. Then I'd excuse the witness and ask for a judgment of not guilty on this count.

[Ref]

SUPPLIMENTAL COUNTER-PETITION FOR MOD

1. There has been a substantial and material change in circumstances that warrent a decrease to the Former Husband summer visitation and to the number of three-day week-ends during which the parties' child [daughter], flies to Pennsylvania for visitation with the Fomer Husband to wit:

    a. The frequency with which [daughter] has traveled to the Former Husband's for three-day week-ends has proved disruptive to the child and her need for a routine;

    b. There is insufficiant time at the end of the summer when [daughter] returns from the Father's house for the child to become re-acclimated to living with her mother and to get ready for the beginning of the school year.

   c. The problem is made worse by the fact that the Former Husband arranges for the child's return to [mother's town] to be as late in the day as possible;

   d. [daughter] has stated that she would like to work duing the summer and spend more time with her friends;

  e. [daughter] cannot do this is she spends all but three weeks of the summer in Pennsylvania with the Former Husband;

2. Next year [daughter] will be 15 and will be old enough to fly without airline accompaniment.

3. The Former Wife is concerned, since the child will no longer need airline accompaniment, that the Former Husband will book the child on the last flight out of Pennsylvania and that if the leg of the flight form Atlanta to [mother's town] is cancelled, [daughter] will be stranded, by herself, late at night at the Atlanta airport.

4. The Former Wife requests that the time on which the child is to return to her Primary residence at the end of Former Husband's visitation be specified to be early in the day so that there is no risk that [daughter] will be stranded, alone, in the airport.

Wherefore the Former Wife respectfully requests that the Court modify summer visitation to begin two weeks after school is out for the summer and ending two weeks before school resumes and as the child gets older, to shorten the Former Husband's summer visitation so that [daughter] can work; to require [daughter] be returned home to [mother's town] at the end of the Former Husband's visitation on a mid-day flight; terminate at least one-half of the three-day weekend visitations that the Former husband is allowed; and require the Former Husband  to pay the Former Wife's attorney's fees and costs.

FACTS:

1. Daughter has only flown to PA once on a three day weekend subsequent to the last modification. Before that I flew her on a long weekend to Disney World (30 minute flight from BM's home) in 2003.

2. According to the Parenting Agreement, I am not allowed any 3 day weekends (as you saw on this thread). I am allowed only several holidays that happen to be attached to the weekend. I can take the weekend attached only in BM's town with 7 days notice, so effectively, I have to have the holiday there too.

3. Currently I have the 15th day after school lets out through to 7 day s prior to the beginning of school.

4. I have never put daughter on a plane that arrived anytime later than 8:50 pm. 90% of the flights I have returned her landed prior to 5pm. I have all the ticket stubs since 1998.

5. I don't even know what to say about her needing more than a week to become re-acclimated to living in the home she is at over 80% of the time. The IF she is at the airport and IF there is a problem with the connecting flight their MIGHT be a chance DD gets stranded.



Again my only question is, what do you think?


Thanks for all your time on this. I REALLY appreciate it.


Ref

[socrateaser]

>Again my only question is, what do you think?

I think you need to find out what your child really wants, because at 15, if she really doesn't want to come visit, the court won't force her and you will be wasting a load of time in court fighting a losing battle.