Sigh... here we go again

[DecentDad]

Soc,

Every holiday season, I seem to go through major problems with attempts to cancel exchanges.

Today, biomom left me voicemail and sent me email stating that she is canceling the exchange at 5pm due to daughter being "not well".  Daughter has had the tail end of a cold for a week, normal lingering cold symptoms (i.e., she was with me over the weekend and was a tad stuffy, but not bedridden and had normal energy).

According to biomom's email, she claims she called the doctor (but did not take child to the doctor), who supposedly told biomom that there "will be 10 more days of symptoms".  Based on this, biomom wrote that she "cannot make definitive plans" as to further exchanges or make-up time until she "sees how (child) is feeling" at those times.

Daughter missed school today, per my decision to give her one last day of rest/recuperation-- though if push came to shove, she probably could have made it.  I was supposed to have her back this evening in my care.

Court orders specifically state that I'm to pick up daughter "at 5pm on Mondays" and "at 5pm on Wednesdays".

So, there is no ambiguity in the orders as to either of these days unlike past problems on Fridays that state "after school" as the exchange time.

There are no orders addressing conditions warranting a cancelation of custodial exchange, and daughter was apparently well enough in the morning to handle an exchange to biomom.

I wrote biomom back, not wanting to appear ogre-ish, suggesting we could switch to Tues at 5pm.  I noted if she wouldn't agree, we'd stick with court orders for the Monday exchange.

With no agreement to change it, I showed up at 5pm for the exchange, called biomom to say I was here to pick up daughter, only got her machine.

Recall I did an unsuccessful attempt on contempt in April for denial of phone access (orders found to be too vague for contempt) and biomom arbitrarily telling me when to pick up daughter on Friday (orders found to be too vague for contempt).

Recall that judge has been annoyed with both sides.  In April, he commented while denying contempt that orders should be cleaned up due to being vague.  In May, I had an OSC heard to clarify orders on phone and Friday exchanges,  he got on my case that I'm nitpicking and denied everything.  In June, he spanked opposing counsel for baseless OSC to change custody.  We haven't been back since.

Per his orders, we completed the courthouse's Classes for Bad Parents, and it seemed to have only given biomom new ideas by skimming the "Do Not" behavior column.

Finally, I'm concerned that this is all a set-up to build to denying the exchange this Friday, which anti-Jewish biomom knows is the day of a very special event at temple (consecration) for daughter.

1.  Given the history, at what point would you suggest biomom's behavior is egregious enough that filing contempt is unlikely to result in judge peeved at me?

2.  Ever experienced that a judge finds minor cold symptoms to be reasonable cause to cancel a number of exchanges (as biomom is insinuating she'll be doing)?

3.  If Wednesday exchange is also denied (and daughter is presumably kept out of school by biomom all week for the charade), what are your thoughts on me noticing Ex Parte for Friday morning; asking for immediate exchange of custody (i.e., not CHANGE of custody, but rather compliance) to ensure my custodial weekend occurs so that I could A) take allegedly ailing daughter to pediatrician; B) take daughter to kindergarten (if well); and C) ensure that daughter can attend the important religious event that evening (if well) during my normally scheduled custodial time.

Or any other thoughts on how to respond to this latest for efficient resolution?

Thanks,

DD

[socrateaser]

>1.  Given all this, at what point would you believe biomom's
>behavior to be egregious at arbitrarily canceling exchanges
>that are clearly ordered to occur at 5pm?

Contempt requires willful and conscious disregard for the court's orders. The mother will argue that the child's illness, caused her to be unable to comply and that she was not in conscious disregard of the court order, which will negate the required mental intent, and you won't get the contempt.

So, you may want to just let this one go, because it makes you appear to be more concerned with your exercise of control over the child, than your desire for the child's comfort during a sickness.

I realize that you don't think the child is sick and this is just the latest version of "mom-control."

According to your facts, the mom is offering make up time. Get that recorded if you haven't already. Then hold her to her bargain. That way you will be able to tell the court that you tried to avoid another major battle, but mom is deliberately frustrating your exercise of custody. Talk to the doctor and confirm the diagnosis. Proving contempt will require him/her to testify that the child had nothing but a stuffy head. If the kid ends up with strep or the flu, then you will have egg on your face for starting this fight.

>
>2.  Does court find minor cold symptoms to be reasonable cause
>to cancel a number of exchanges (as biomom is insinuating
>she'll be doing)?

The court will just look at the facts and decide. Remember though, your burden of proof is "beyond all reasonable doubt," and you don't have that -- yet.

[DecentDad]

I hear you on all, thank you.

In the PAST, I always just let it go, so long as mom had offered make up time (i.e., regardless of my opinion on daughter's wellness).

That is not the case at present.

This time, I once again asked her to agree to make up time, else follow court orders.

She thus far refused to agree to make up time and is insinuating in her email that she may not honor any make up time or further exchanges until symptoms subside (up to 10 days, per what she says doctor told her on the phone).  I'm just getting info in the event she follows this route.

I took child to doctor over holiday weekend (because cough symptom had been around for a week), and doctor diagnosed common cold virus, advised that it'll probably disappear within a week, not to worry.  Negative on strep swab.

1.  So, question again... if no make up time, and if mom doesn't take child to doctor or ER for any further diagnosis... is it still "reasonable doubt" that she's not acting with willful disregard for orders if she pursues this approach for X (how many?!) exchanges?

2.  One more question... in the past, this also has occurred after child went to school and had a playdate.  I'd suddenly get a call at 4:55pm saying child is not well enough for the exchange.  Is school attendance and after-school activity enough to beat the burden of reasonable doubt as to condition of the child?

DD

[socrateaser]

>1.  So, question again... if no make up time, and if mom
>doesn't take child to doctor or ER for any further
>diagnosis... is it still "reasonable doubt" that she's not
>acting with willful disregard for orders if she pursues this
>approach for X (how many?!) exchanges?
>
>2.  One more question... in the past, this also has occurred
>after child went to school and had a playdate.  I'd suddenly
>get a call at 4:55pm saying child is not well enough for the
>exchange.  Is school attendance and after-school activity
>enough to beat the burden of reasonable doubt as to condition
>of the child?

OK, think about it. You need to show, beyond all reasonable doubt, that the child wasn't sick at the time of the exchange. How do you propose to do this?

I'm not saying that the child wasn't sick, or that the mom's not guilty, I'm just asking you to present your case. What evidence will you produce to the judge that will persuade him that the child had nothing more than a head cold AT THE TIME(S) THAT THE EXCHANGE(S) WAS/WERE TO TAKE PLACE?

And, remember, the mother cannot be compelled to testify against herself, AND she is entitled to confront all of the witnesses against her, which means that if you want to admit a physician's finding on the issue, then you will have to subpoena him/her to appear and testify, and, since it's a criminal action that you are prosecuting, and you merely want his/her personal observations, he will have to testify without expert fees, and that will piss him/her off, so your witness will be highly uncooperative.

You may be able to prove your case, but not sufficient to obtain the contempt, and that's the trouble. So, put your case together precisely, because I cannot judge without seeing exactly what you intend to offer.

[DecentDad]

Thanks for the scrutiny.  I see your point.

1.  At SOME POINT it's gotta be beyond a reasonable doubt that a child is sick precisely and only at the time of a number of exchanges, yet appears to function normally (e.g., school and extracurricular attendance) on the days of each exchange.  Buy it? If so, how many sequential exchanges is that number?  Three?  Five?  Ten?

2.  If I'm able to talk with child by phone in between the time that mother cancels the exchange (e.g., at 2pm) and the time of the exchange (e.g., at 5pm), and the child sounds fine and energetic on the phone and doesn't cough or sneeze, and the child expresses to me that nothing hurts... and I record that conversation (and announce date/time on the audio recording)... is that valid evidence to introduce to supplement my personal testimony of what I observed (telephonically) of child?  Or would that be hearsay, killed on objection?

3.  If mom's goal is to prevent child from attending the Friday event at temple that is extremely important for my faith and desire to expose child in same... and I'm supposed to pick daughter up at 12pm "after school" on Friday for the entire weekend... and if mom blocks Wednesday exchange too... do you see any legal vehicle to force the Friday exchange?

[socrateaser]

>Thanks for the scrutiny.  I see your point.
>
>1.  At SOME POINT it's gotta be beyond a reasonable doubt that
>a child is sick precisely and only at the time of a number of
>exchanges, yet appears to function normally (e.g., school and
>extracurricular attendance) on the days of each exchange.  Buy
>it? If so, how many sequential exchanges is that number?
>Three?  Five?  Ten?

Nope. You can't prove a criminal charge by inferring from past habit, that a present crime was committed. You must prove the present crime based on present facts. That is, on date and time certain, defendant stole fizzy lifting drink in violation of the statute prohibiting the theft of fizzy lifting drink.

>
>2.  If I'm able to talk with child by phone in between the
>time that mother cancels the exchange (e.g., at 2pm) and the
>time of the exchange (e.g., at 5pm), and the child sounds fine
>and energetic on the phone and doesn't cough or sneeze, and
>the child expresses to me that nothing hurts... and I record
>that conversation (and announce date/time on the audio
>recording)... is that valid evidence to introduce to
>supplement my personal testimony of what I observed
>(telephonically) of child?  Or would that be hearsay, killed
>on objection?

You are offerring the recording to prove only what you heard, i.e, that the child was not sneezing and did not sound congested to you, assuming that the child actually sounds well on the tape, and you are not offering the child's statements to prove the truth of the matter asserted. That's how you respond to a hearsay objection on the tape.

But, the child is too young to testify competently, thus she is an unavailable witness, and this gets very sticky, because in order to have the child's statements in the recording about how she feels admitted, then under the confrontation clause ofthe 6th Amendment, the defenant is entitled to confront the child in court, unless she has had a prior opportunity to test the child's truthfulness.

Now, you could argue that as the child was reasonably within the mother's care at the time of the phone call, that the mother had ample opportunity to test the child's statements as to her condition. However, this is not the same as cross-examining the child under oath, and I think that the judge will not admit the child's statements to prove the truth of the matter asserted. I.e., "I feel good daddy," is inadmissible hearsay.

The judge may infer proof beyond reasonble doubt from circumstantial evidence, which is what your perceptions on the tape will be. But, he doesn't have to. So, what's on the tape needs to be "reaaaaally good sounding," because the judge will be faced with the prospect of saying to himself, "I just heard the kid say I'm fine, but I can't consider that. All I can consider is that the sounds of the child on the tape verify that the father believes beyond a reasonable doubt that the child is well. Do I think that's enough proof?" Thin hair to split.

What you really need is a physician to testify that the recent exam of the child showed nothing seriously wrong and only a head cold.

>3.  If mom's goal is to prevent child from attending the
>Friday event at temple that is extremely important for my
>faith and desire to expose child in same... and I'm supposed
>to pick daughter up at 12pm "after school" on Friday for the
>entire weekend... and if mom blocks Wednesday exchange too...
>do you see any legal vehicle to force the Friday exchange?

You could call the Sheriff and ask for assistance in exercise your court order at the time and place when mother is to exchange the child. That's about it. I just want you to be careful, because if the kid is really sick, then you're ex is gonna have some good evidence of a hostile and angry dad, because the Sheriff will be their as a witness.

[DecentDad]

Police here will only make a report for referral to the D.A.  By past experience, they instruct me to come to the station.... I'm in a big city, and they won't send a unit unless there's an actual confrontation going on.  Realistically, by the time I get assigned to a detective, it's 60 to 90 minutes past the exchange time, useless for proving I was at the exchange.  Report eventually gets bounced back from D.A. with recommendation to pursue civil contempt in family law.  Most of the cops I've dealt with are dads and are sympathetic when they read the orders, but useless.

If I'm reading everything you're saying in a realistic light, biomom has figured out a great way to deny or change custodial time.  And if she does it only eight to ten times a year, she's probably going to get away with it.... especially because she usually calls the doctor to describe symptoms, rather than bring child in for an exam.  I.e., doctor would only testify to biomom's statements.

1.  That's about the crux of the reality?

2.  Is it "reasonable" that the mother assigns herself as a more able caretaker of a sick child than the father?  Or are you saying that the REALITY is, no matter how I approach this, I'll probably lose because the mother will claim daughter was on her deathbed, and all I cared about was the exchange.

[socrateaser]

>1.  That's about the crux of the reality?

No, it's possible that the judge might find the recording convincing. Obviously, if you had a video of the child in front of her house dancing around and mom refusing to turn her over because she asserts that she's sick, then that would be a lot better. And, I'm not saying that evidence of habit can't go to proving conformity with prior behavior. But, it usually won't cut it in being used as the only evidence of a crime. Example: unknown burglar routinely leaves a distinctive pink glove at the scene of crimes (Pink Panther). Defendant (Cluseau) is found with the same pink glove on his person. So, if Mom uses sickness to rule out 10 different exchanges over a 90 day period, then you really have something, because the kid wasn't sick every damn time you wanted to see her, and you can probably prove that the child was in school in between sicknesses. But, if mom's crying that the kid is sick for 10 days straight, then you need a doctor to testify to the exception. you could give in for the first five, and then tell mom, that you're gonna pick up the child and take her to the doctor. Now mom's backed up into a corner, cause if she says no, that means that the kid's not really sick, and if she says yes and the doctor says the kid's fine, then that means that the mother's been lying for the first 5 days.

You need to box mom into a corner. I'm not saying this is easy, just that it's possible.

>
>2.  Is it "reasonable" that the mother assigns herself as a
>more able caretaker of a sick child than the father?  Or are
>you saying that the REALITY is, no matter how I approach this,
>I'll probably lose because the mother will claim daughter was
>on her deathbed, and all I cared about was the exchange.

Don't try to impose your sense of justice on the situation. What matters for contempt is proof beyond reasonable doubt, not what's reasonable -- everything else is bullshit. You need to decide on how important it is to win this issue, and come up with a strategy. Cops catch criminals all the time and prosecutors convict. You just need to put the right trap together.

[DecentDad]

>you could give in for the first five, and then tell
>mom, that you're gonna pick up the child and take her to the
>doctor. Now mom's backed up into a corner, cause if she says
>no, that means that the kid's not really sick, and if she says
>yes and the doctor says the kid's fine, then that means that
>the mother's been lying for the first 5 days.

Okay, perfect approach, thanks.

Boxing her into a corner has historically done well, actually.

Your prior advice to finally let her know (I sent via certified mail) that I'd need to take her 120 day balance owed to doctor from child support worked like a charm.  She paid it.

Thanks again.

DD

[hagatha]

DD,

DH and I had the same problem with SD. Seems she was also conveniently sick only on visit days. Even though she attended school and other activities on those days. And that she was sick at the time of the exchange but not sick 2 hrs later. But since pick up time had passed, it was too late.

One thing we did was call SD several times during the day we were to have her. This helped in 2 ways. One verified that child was or wasn't home. And verified if mother was or wasn't caring for the "too sick" child.

We filed for contempt several times. While the Judge never actually charged her with contempt he did order more time. But because mother refused to follow orders and instances of child being sick increased, Judge finally ordered if child missed a visit due to illness, mother had to produce a Dr. note with exact diagnoses and treatment plan.

Maybe if you can show a pattern of when she is denying visits (ie: during religious ceremonies for your faith) you can request mother produce Dr note for cancelled visits.

Just a thought

The Witch