visitation issue

[robey]

Case began in SC where divorce decree and custody order were implemented. Joint Custody with primary physical custody being with the mother. Mother moved child to Maryland. I moved to Virginia to be closer to daughter. Jusrisdiction was in South Carolina.

Have filed 4 motions against mother for contempt of court for blocking visitation. On all occasions we came to an agreement which entitled me to more time with child and court order became more stringent.

Now mother trying to get my vistation reduced by taking daughter to a therapist. Mother hopes therapist will testify in court and judge will modify custody order and reduce my visitaiton.

Issue with visitaion now is this...I sent certified letter notifying mother I intended to visit with the child a weekend in January. Motther says they have plans and child can't come. Court order reads...

Once Plaintiff gives thirty (30) days notice regarding any weekend or summer visitation, Defendant shall be required to ensure that the child is available for the requested visitation, and Defendant shall not have veto power over the Plaintiff's selections absent exigent circumstances.

Before I was able to file contempt charges against mother for doing this. (in South Carolina) But, now therapist says Maryland courts would not agree and that would be squashed in court because it is not in the childs best interest to come to my house that weekend because mother has  plans and the child knows about them and really wants to be there. She says this because court order also has attached to it the Parent's Bill of Right's which states...

Both parents agree that they will be integrally connected in all decision and aspects regarding the child including, but not limited to, their medical, dental, religious, educational, and recreational activities, however, reasonableness requires that should there be any disagreement between the two parties regarding the child's best interest in any particular field, after reasonable opportunity for consultation with the father, the mother shall make the ultimate decisions regarding the child's best interest in these areas.

And from that the therapist and mother state that is is in the child's best interest that she not come visit me because they have plans at the mothers house that the child really wants to attend.

1.  Is therapist true in saying Maryland courts will not see this as a contempt charge?

Hope I wrote this post correctly...thanks!!!

[socrateaser]

>Before I was able to file contempt charges against mother for
>doing this. (in South Carolina) But, now therapist says
>Maryland courts would not agree and that would be squashed in
>court because it is not in the childs best interest to come to
>my house that weekend because mother has  plans and the child
>knows about them and really wants to be there. She says this
>because court order also has attached to it the Parent's Bill
>of Right's which states...

>Both parents agree that they will be integrally connected in
>all decision and aspects regarding the child including, but
>not limited to, their medical, dental, religious, educational,
>and recreational activities, however, reasonableness requires
>that should there be any disagreement between the two parties
>regarding the child's best interest in any particular field,
>after reasonable opportunity for consultation with the father,
>the mother shall make the ultimate decisions regarding the
>child's best interest in these areas.
>
>And from that the therapist and mother state that is is in the
>child's best interest that she not come visit me because they
>have plans at the mothers house that the child really wants to
>attend.
>
>1.  Is therapist true in saying Maryland courts will not see
>this as a contempt charge?

The therapist, unless he/she is a lawyer, is engaged in the unauthorized practice of law, because he/she is applying law to facts and reaching a legal conclusion, by interpreting the events surrounding your visitation request in accordance with the court order. You could report that person both to the State disciplinary agency for attorneys as well as to the disciplinary agency for therapists, and maybe even to the local district attorney.

Secondly, if you are stating that the court order that instructs the mother regarding the 30 days issue and that mother shall have no veto power, ALSO contains some boilerplate text that contradicts that express order, then a Maryland court will uphold the express order in favor of the boilerplate, because that is obviously what the court intended.

If the court order with the "no veto" clause is in an order made subsequent to the one that contains the boilerplate, then the boilerplate has been overruled and you don't have to worry about it, as long as you make sure the court is aware of the timing of the two orders.

I'm not sure if I'm on target with all of this, but if I am, then you should simply smile at the therapist and move forward with your complaint, becuase you're right and the therapist is wrong.

[MixedBag]

get a copy of Divorce Poison.

In the book, Dr. W. specifically gives your example (when a parent makes plans on the NCP's time) as something that should NOT be done by the CP.

I was in a similar boat -- and I now have the final decision making authority too as to "when" I get time with my son (but I only have to give two weeks' notice).  Dad gets the final say on all other matters not otherwise detailed in the order.

Good luck!

[robey]

I told the therapist I would file contempt charges against the mother if she blocked the visitaiton. She said if I took it to court the judge would probably rule in the mothers favor. And she(the therapist) felt it was in the best interest of the child for her to be with her mother that weekend. (the child went to the therapist and said she wanted to be with mother that weekend because of the plans the family had made). Guess she would testify in court for the mother that she thought it was in the child's best interest to be with the mother that weekend.

The "veto power" is in the Final court order. The GAL also attached a "Parent's Bill of Right's to that final order(at the same time the Final Order was done). The Final order reads...

The parties agree to be bound by the attached Bill of Rights.

It is in this Parent's Bill of rights that states as follows

Both parents agree they will be integrally connected in all decisions and aspects regarding the child, including, but not limited to, their medical, dental, religious, educational, and recreational activities, however, resonableness requires that should there be any disagreement between the two parents regarding the child's best interest in any particular field, after resonable opportunity for consultation with the father, the mother shall make the ultimate decisions regarding the child's best interest in these areas.



 Which one overrules the other?

[socrateaser]

> Which one overrules the other?

I am assuming that the 30 notice issue is also contained in the final order. If so, then the court's express orders in this area (30 day notice, no veto power) overrule the Bill of Rights. The point is that the judge evidently made some specific orders to deal with a problem that he recognized existed in the parent's relationship with each other, and then the GAL added some crap to the final order, that inadvertantly contradicts the court's express orders. This is bad draftmanship, but it should be obvious to any judge, as long as you make certain that the judge is aware of the facts and what was originally done, that the court's express orders were intended to be controlling.

As for the therapist testifying as to what the child said, I doubt it, but even so, the mother evidently has a history of contempts found on this same issue, and you can introduce all of them against her in a new contempt hearing. That will suggest that mother is habitually in contempt of court, which will weigh heavily against her.

Bottom line really is what the child wants, and I doubt that anyone really knows what that is at this point. But, if you honestly believe that the child is being manipulated, then you should file the contempt and try to get another feather in that cap. I would bring the therapist into court as a hostile witness for your case and ask her about her contention that South Carolina is stricter on enforcing visitation rights than is Maryland. If you set it up right, you could get the therapist to really put his/her foot in it, either by admitting to practicing law without a license, or to effectivelly stating that the Maryland Court System is a place where justice is not done. In which case, the judge will completely discredit every word of the therapist's testimony, and you will win by impeaching the only neutral witness for the defendant.

[robey]

Yes, "no veto power" was put into place because mother would continually deny visitations. Now she says she can't live with me only giving her 30 day notice and her having no veto power. So she is using a therapist to get around what the courts ordered. She schedules activities for the weekend I choose after I send notice taking that particular weekend, then asks me to choose another weekend.


We came to an agreement before we ever went before the judge. GAL was on my side, mother didn't want to go to court and argue case so she agreed to give me more and more visitaiton each time we went. So there are no contempt charges. And I thought you couldn't bring up those past instances where mother blocked visitation if they were dropped/dismissed.



Is this true?

[socrateaser]

>Yes, "no veto power" was put into place because mother would
>continually deny visitations. Now she says she can't live with
>me only giving her 30 day notice and her having no veto power.
>So she is using a therapist to get around what the courts
>ordered. She schedules activities for the weekend I choose
>after I send notice taking that particular weekend, then asks
>me to choose another weekend.
>
>
>We came to an agreement before we ever went before the judge.
>GAL was on my side, mother didn't want to go to court and
>argue case so she agreed to give me more and more visitaiton
>each time we went. So there are no contempt charges. And I
>thought you couldn't bring up those past instances where
>mother blocked visitation if they were dropped/dismissed.
>
>
>
>Is this true?

Proof of contempt requires proof of willful and conscious disregard of a valid and enforceable court order. If the therapist testifies that she doesn't believe that it is in the child's best interests to visit, because the child doesn't want to go, and that the mother acted in accordance with the therapist's advice, then the therapist has just stated that the mother willfully violated the court order, which proves the contempt.

So, I don't believe that the therapist will testify, because it will hurt the mother's case in a contempt hearing.

Your affirmative proof is that the mother makes it a matter of HABIT (legal magic word) to refuse you visitation, using some very predictable repeated pattern of behavior. So, if all of the prior allegations of contempt had some identifiable and predictable pattern of behavior, that culminates in a refusal to permit visitation, then you have evidence of habit and that is admissible. You say that there were four other times that this has resulted in a court action that was dismissed. Thus, this is now the fifth event. If true, and if all events have the same pattern of behavior, then this is admissible to demonstrate circumstantial conformity with past behavior in a criminal action.

Furthermore, if you can show common Knowledge, Identity, Scheme, Motive, Opportunity, Mistake, Preparation, Intent or Plan, in "all" of the past contempt charges, that match with the current event, then this evidence is admissible to prove the mental state of the defendant, which is "willful and conscious disregard for the court's prior orders."

So, it depends on how you put your case together -- there is definitely a way to get that evidence in, despite the fact that prior charges were all dropped.

[robey]

One more question.

I asked therapist to speak with GAL who was appointed to our case in SC. (Appointed when child was ages 3-6) Child is now 8. Therapist says she cannot speak to GAL b/c GAL is not appointed to the case any longer. She could only speak to her if both mother and I sent a release letter allowing therapist to talk with GAL(which mother won't do).

Is this true therapist must have a release from both parents to speak to GAL?

Thanks a million.

[robey]

Thanks for the info. It is much appreciated. I Will check it out.

[socrateaser]

>One more question.
>
>I asked therapist to speak with GAL who was appointed to our
>case in SC. (Appointed when child was ages 3-6) Child is now
>8. Therapist says she cannot speak to GAL b/c GAL is not
>appointed to the case any longer. She could only speak to her
>if both mother and I sent a release letter allowing therapist
>to talk with GAL(which mother won't do).
>
>Is this true therapist must have a release from both parents
>to speak to GAL?

Therapist has a duty of confidentiality to the client, and since the client is in the custody of his/her parents, the client cannot contractually waive the therapist's duty. When the GAL was appointed, the therapist was communicating with a person who had permission of both parties via the litigation and the court order to discuss the child's interests with the therapist.

Now, if there is no appointment, then the GAL is a legal stranger, and the therapist would violate confidentiality rules without consent of the parent(s) with legal authority to determine major issues related to the child's health and welfare. This could actually, not include you, depending upon your actual legal status, i.e., if you only have visitation and not joint custody, then you couldn't consent to the release of info even if you wanted to.

But, the therapist is just covering his/her butt by getting a release from both parents, which is a good idea.

So, the short answer to your question is: "yes."