custody pro se questions

[TJRodolph]

I am the non-custodial father in MN. Never married. Custodial mother moved our son to OH in 2002 (without my consent or court order) one month after she found out I was in a committed relationship with someone (my now wife) (child was 3 1/2 yrs old then).

Original order in 1998 was a child support order giving me reasonable visitation. Mother has continually denied me parenting time, allowing visitation at her discretion. She refused to give me her address after moving to OH.

Two years later I filed for parenting time assistance, pro se. I had no clue where to begin, took me 2 years to figure it out. Went thru mediation unsuccessfully, and had a parenting time investigation. We submitted written statements in lieu of trial. New order gave me more specific parenting time than the investigator recommended.

Since the investigation last year, I found out what school and therapist my son was seeing, and requested records. Mother was reported for abuse by school district. Don't know the outcome, no one will give documentation.

I found out my son has ADHD, is a grade behind in school, in special ed, and has severe emotional and behavior problems and does not get his meds regularly. All the public schools in Dayton are rated at Academic Emergency.

I missed my Oct parenting time because she didn't pay her 1/2 of the airfare, and she denied my Dec time because the flight times interferred with her night work schedule. She wanted child to get on a 6am connecting flight, vs a direct flight. Child is 8, has ADHD and emotional/behavior issues. I paid 100% of ticket.

Order states she is responsible for 1/2 of airfare, but if she does not pay, that it can be reduced from my arrearages. There was about 1.5 yrs when I had a crappy job and she didnt get the full amount every month. However, she has never paid for any travel, not even for the investigation part.

My son told me that he was mad at me becuase I bought the wrong ticket, and that his mother told him that. I gave the mother a 3-month notice of dates and times. Order states for me to make all arrangements and give her a 30-day notice.

I just filed a change of custody motion in MN based on MN Statute 518.17 (continual denial of parenting time can be grounds for custody reversal). 1st hearing is 2/14.

questions:

1. How likely is it for a judge to reverse custody at the 1st hearing?

2. What happens if the mother doesn't show up for the hearing?

3. What are the chances of the judge offering both parties to submit written statements in lieu of an evidentiary hearing since one party lives in a diff state?

4. If judge does offer written statements in lieu of evidentiay hearing, what are the pros and cons of it?

5. If custody is not reversed to me, is there some other solution the judge will suggest or order?

6. How can I file contempt on the mother in the future, since she lives out of state and I have very limited funds.

[socrateaser]

>questions:
>
>1. How likely is it for a judge to reverse custody at the 1st
>hearing?

Unless you have clear and convincing evidence that the mother is engaged in criminal acts that endanger the child, such as traffiking in drugs or child abuse, then the probability is 0%.

>
>2. What happens if the mother doesn't show up for the
>hearing?

You present your case and the judge will probably appoint a GAL with instructions to contact the other parent and find out what's going on. And, you'll probably be charged with at least 1/2 if not all of the GAL's legal fees.

>
>3. What are the chances of the judge offering both parties to
>submit written statements in lieu of an evidentiary hearing
>since one party lives in a diff state?

Initial hearings are almost always held based upon affidavit, however, just because the other parent lives in another state doesn't mean that she doesn't have to physically appear. Howeer, the court has authority to dismiss your action because the child has lived in the other state for more than 6 months, and therefore that MN is now an inappropriate forum. Thus, the court can avoid any decision on the merits of your claims, and force you to go to the mother/child's state to pursue your custody modification.

So, while your "chances" of affidavit is nearly 100%, your chances of prevailing is still nearly 0%.

>
>4. If judge does offer written statements in lieu of
>evidentiay hearing, what are the pros and cons of it?

Judge's don't offer, they just hear and review. You offer. The other party does not have to appear, except in a criminal action, where the defendant must appear in order to maintain the right to be confronted by his/her accusors. In a civil action, however, there's no requirement of physical appearance. All that is required is that the parties be given notice of a pending action "reasonably calculated under all the circumstances to permit a meaningful opportunity to appear and defend."

>5. If custody is not reversed to me, is there some other
>solution the judge will suggest or order?

The judge will either dismiss your case for forum inconveniens (inconvenient forum), appoint a GAL to protect the child's interests if the other parent doesn't show, or order mediation, if the other parent appears.

The judge is NOT simply going to give you custody based on your request, no matter what the other parent does, UNLESS you have credible third party objective proof that the child is in imminent danger of suffering irreparable harm.

>6. How can I file contempt on the mother in the future, since
>she lives out of state and I have very limited funds.

You do it the same as you have done your custody action, only you're filing for contempt. If you file for contempt, then you must have the other parent "personally" served with the motion and you will have to prove your case beyond reasonable doubt, which most pro se litigitants just cannot accomplish, because the burden of production of quality evidence is nearly insurmountable, unless there's a police officer who witnesses the contempt as it is occuring, or the contempt occurs before the judge in the courtroom.

[TJRodolph]

ok.....those are some hard answers....but thank you.

I received a waiver of fees due to my income level from the court, so I think they cannot appoint a GAL to my case. I did not have to pay anything for mediation/investigation with the parenting time assistance case, but the mother did. The mother makes more than I do.

In my last hearing, the judge asked both parties if we would be agreeable to submitting written affidavits in lieu of the evidentiary hearing, which we did.

MN Statute 518.175 states: Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody.


questions:
1. You really think the court would dismiss my action due to inappropriate forum, even when they just ruled on the parenting time order 9 months ago and the mother moved out of state without court order or my consent?

2. Does the statute 518.175 above really not hold any water?

3. What is your opinion of average percentage of pro se litigants that win their case?

[socrateaser]

>questions:
>1. You really think the court would dismiss my action due to
>inappropriate forum, even when they just ruled on the
>parenting time order 9 months ago and the mother moved out of
>state without court order or my consent?

If the court didn't specifically restrain the other parent from moving, ten she was free to move. If it was 9 months ago, the court will wonder why you haven't bothered objecting until 9 months later.

>
>2. Does the statute 518.175 above really not hold any water?

The operative word here is "may." This statute provides the court with discretion to reverse custody as a remedy for proof of contempt. At the moment, you haven't proven contempt, much less even brought a motion for contempt, and assuming that you do prove it, then the court can still order some other remedy. The point is that the court will always err on the side of the child's best interests, even if the custodial parent is screwing the pants of the noncustodial parent, because the child's interests are more important than the parents' to the court, since the child is an innocent pawn.

So, the statute holds water, but the remedy is the most extreme available and it will only be used in the most extreme circumstances, such as when the custodial parent is doing something really annoying and has been warned multiple times and still thumbs his/her nose at the court.
>
>3. What is your opinion of average percentage of pro se
>litigants that win their case?

Percentages are irrelevant to this sort of question. Every person's case is different. If you can prove that the mother has been convicted of child abuse, then your odds in your case rise dramatically. If you can't then your odds suck. Every circumstance will be different, so it's not like tossing a pair of dice where there is only one input (the toss), and 36 possible outcomes (1/36 are the raw odds of any particular outcome). In court there are an almost limitless number of inputs but only two outcomes. And, infinity divided by two is still infinity. So, your question of percentages is a non sequitur (meaningless).

[DecentDad]

Hi,

I can't wait to see Soc's response on his opinion of the average % of pro se litigants.

Here's my experience...

I'm a pro se litigant, and I'm now pretty competent at arguing anything I've PREVIOUSLY experienced in court during the past 4 years, or anything I've PREVIOUSLY watched my own attorney do.

However, every NEW court experience for me (i.e., new type of hearing, new type of court rule, new type of situation) can be just one-step above Keystone Kops.  I may keep my calm and not look like a ninny, but how the heck do I respond to an 1118 motion, when I've never heard of it?!  How do I respond to an objection for Evidence Code 123 (or whatever real number the other attorney cites), when I have no idea what it is?

If you're up against an attorney, and if you have very little experience, I think chances are pretty good that you'll be toast, and it'll happen faster than you can track.  I base this on what I've observed of other cases in the 18-20 times I've been in a courtroom waiting for my own hearing.

If it's just you and the mother, and no attorney, your chances are much better if you have a solid case.  But it'll take much learning on how to present your case, and doing everything technically correct, to prevail.

My two cents.

And I'm sorry you're having a tough time seeing your child.  That's awful.

[TJRodolph]

the other parent moved more than 9 months ago...she moved in 8/02. I filed for a specific parenting time order in 8/04. I only had "reasonable visitation" till the 4/05 order. I admit I didn't know what to do about it and procrastinated, trying to avoid the big confrontation because I didn't think I had a chance.

MN law states that the custodial parent cannot move out of state without court order or other parent permission. Had I filed a motion right when I found out she moved, I might have had more weight. She thumbed her nose at the law back then.

Thank you for the info regarding filing contempts....that sounds like it will be my next step if my custody hearing doesn't go thru as planned.

Mother admits she was reported for child abuse in 2003 by a school district in Dayton Ohio but claims it was unfounded. I was never notified of anything. I suspect that the mother has told BS stories about me to the schools as I cannot get the schools to cooperate with me. I am legally entitled to information regarding my son.

question:

1.  How can I get documentation regarding a report of child abuse by a school district in Dayton Ohio on the mother, even it was unfounded?

2.  How can I find out what school my son goes to, when the District tells me he is not enrolled in any Dayton public school anymore and that is the only info they are allowed to give out?

[socrateaser]

>question:
>
>1.  How can I get documentation regarding a report of child
>abuse by a school district in Dayton Ohio on the mother, even
>it was unfounded?

Under federal law, you are entitled to a copy of all educational records related to your child, unless specifically denied by your custody orders. This report of abuse is a gray area, one could argue not an educational record. However, if you contact the school and just ask for the records and then when you're denied, you then ask for the contact info for the school district's legal counsel, you may just find that the report appears by magic. If not, then you can contact the legal counsel and simply say that you would prefer not to have to file for a foreign deposition with the school district to get this information, because it will waste both your money and the school districts, but if you are forced to, then that's what you'll do, and then ask if there's any way that you can be accomodated in your request.

You'll either get a yes or a no. If it's a no, then you're gonna have to hire an attorney in OH to produce the records.

Oh wait, I'm being dumb. You say that the other parent admits to being reported? If you mean, she admitted this in open court or in an affidavit, then you can serve her with a request for production of documents and ask for the report and if she has a right to obtain a copy, then she will have to get one and provide it to you, or else you can file a motion to compel discovery, and if she refuses, after the court orders her to produce, she'll be sanctioned -- and that's where your reversal of custody remedy may kick in.

>
>2.  How can I find out what school my son goes to, when the
>District tells me he is not enrolled in any Dayton public
>school anymore and that is the only info they are allowed to
>give out?

You serve the other parent an "interrogatory request" in which you ask where the child is enrolled in school. If she refuses to answer, then you file a motion to compel and then if she still refuses the court will sanction her for contempt, just like in the prior scenario.

[socrateaser]

>Hi,
>
>I can't wait to see Soc's response on his opinion of the
>average % of pro se litigants.
>
>Here's my experience...
>
>I'm a pro se litigant, and I'm now pretty competent at arguing
>anything I've PREVIOUSLY experienced in court during the past
>4 years, or anything I've PREVIOUSLY watched my own attorney
>do.
>
>However, every NEW court experience for me (i.e., new type of
>hearing, new type of court rule, new type of situation) can be
>just one-step above Keystone Kops.  I may keep my calm and not
>look like a ninny, but how the heck do I respond to an 1118
>motion, when I've never heard of it?!  How do I respond to an
>objection for Evidence Code 123 (or whatever real number the
>other attorney cites), when I have no idea what it is?

You say, "Your honor, will you please ask opposing counsel to state his/her objection/motion in plain english rather than simply citing a code section. I am reasonably entitled to know the specific issue being raised."

Judge may tell you to go get a law degree, but reality is that most lawyers and judges don't know every code number. I think your opponent was jerking you around with that stuff. Hell, I don't even remember the code sections without looking them up.

[TJRodolph]

Ok, now we're sounding more positive. :-)

I found out about the child abuse in the therapist records that I had to request. The records states that mother told the therapist that she was reported for child abuse by the school district, but that mother claims it was unfounded. Thats it.

The mother admits she was reported for child abuse but that it was unfounded, in a notarized letter that I have a copy of. She does not deny being reported.

Question:
1. How do I serve her with a request for documents? Just like filing a motion?

2. How do I serve her with an interrogatory request? A simple letter that is sent certified return receipt? Is there a form sample available anywhere?

3. Can the court file the contempt if she doesn't respond to the request for documents, or do I have to do that and have her served in Ohio?

4. Whats the best way for a MN dad to get the mom served in Ohio? Do you know of any references to call for this service?

[TJRodolph]

Hi Soc,
don't forget about my questions just above this guys reply....I really want to file a motin to compel discovery and an interrogatory request....just need to know....

1. File a simple motion? Does it need an affidavit with it or can it just be brief on the motion and attach a copy of the therapist record and mom's letter admitting it?

2.  Can I request school of attendance AND child abuse records on the same motion?

3. Once I file the motion in court.....I have to serve the mom her copy....then what happens?

[TJRodolph]

Thanks for your input!

Not sure if I will be up against an attorney or not. Even if she does hire a lawyer, how can they dispute all the evidence I have against her? There is absolutely NOTHING negative she can say about me except that for about 1.5 yrs I had a crappy job and wasn't able to pay my full child support amount. But I have been paying the full amount plus arrears for a couple years now. It would be VERY good if she doesn't have a lawyer, because she always just tries to defend herself rather than think of whats in the best interest of the child.

[socrateaser]

>Question:
>1. How do I serve her with a request for documents? Just like
>filing a motion?

OK, let me preface this by saying that I cannot walk you through your case, step by step, and especially not for free. Second, I am not licensed to practice in your jurisdiction, so even if I wanted to walk you through, I could be in serious hot water for trying to help you.

Now then, a request for production of documents and other tangible things must be "served" on the other party or their attorney of record. The request must be signed by you as your own attorney, and served by some third party adult who will certify that they deposited the request in an envelope and mailed it. Certified mail is better because you have proof, but it is not technically necessary.

There is a time limit, i.e., days before trial that your request must be served by or the other party can refuse to produce. That limit varies by jurisdiction, but usually 21 days is a safe bet (sometimes 15, but I wouldn't count on it). The request needs to be properly formatted and I don't have time to show you even a general format at the moment. If you're having trouble, go to the local law library and maybe they will have sample pleadings. Otherwise, you'll need to hire an attorney to prepare the document, and most won't do it, because that's their thing.

You don't have to file a request for production with the court, but you need to keep a copy of the request for yourself and the original of the certification of service, so as to show the court that it was served in the event that your opponent claims to never have received it, or refuses to respond. In some jurisdictions, certain papers are served using "forms" made by the court system, however requests for productions are almost never part of these forms (subpoenas yes, but not requests for production). Point is, that you will have to research the proper form, unless someone from your jurisdiction who is reading this has a copy of a request prepared by their attorney from some other case that they will provide you as a template.

>
>2. How do I serve her with an interrogatory request? A simple
>letter that is sent certified return receipt? Is there a form
>sample available anywhere?

Same exact answer as above. Note, in some jurisdictions, notably Oregon, interrogatory requests are not permitted and everything is done via notice of deposition and request for production.

Interrogatories are mostly worthless, because attorneys very carefully craft responses so as to provide nearly nothing useful.
>
>3. Can the court file the contempt if she doesn't respond to
>the request for documents, or do I have to do that and have
>her served in Ohio?

She is already bound to your jurisdiction, so for an ordinary motion, you can serve via mail. But, on a contempt motion, where the court has authority to deprive the defendant of his/her liberty interests (aka "jail"), the defendant is entitled to "personal" service so that there is no doubt that they are aware that they are being subjected to a quasi-criminal action with very serious consequences. I don't know whether a motion to compel discovery in your jurisdiction requires personal service, however I'm betting it doesn't. Generally the sanction for failing to produce documents or testimony, is that the party who refuses to produce, cannot bring any evidence to rebut the evidence that they didn't provide, and sometimes their claim or defense is discarded entirely, and in your case, the court could conceivably consider the action contempt, and then hold a separate contempt hearing and then reverse custody.

It gets messy, because the constitutional rights of the defendant in criminal actions deserves extra protection.

>4. Whats the best way for a MN dad to get the mom served in
>Ohio? Do you know of any references to call for this service?

There are private process server companies in every city. Just Google the web for "process servers"

[socrateaser]

>Hi Soc,
>don't forget about my questions just above this guys
>reply....I really want to file a motin to compel discovery and
>an interrogatory request....just need to know....

Don't double post. It may actually cause me to miss your posts. I don't forget about anyone, until I see them ignoring my advice.
>
>1. File a simple motion? Does it need an affidavit with it or
>can it just be brief on the motion and attach a copy of the
>therapist record and mom's letter admitting it?

Every motion needs a supporting affidavit, and if you have evidence, then you reference and attach copies.

>2.  Can I request school of attendance AND child abuse records
>on the same motion?

You're not requesting that stuff on motion, you're serving a request for production, and if she doesn't produce, then you file a motion to compel discovery (followed by a motion for contempt, if she doesn't show at the motion to compel -- if she does, then you can move for contempt right in the courtroom).

>3. Once I file the motion in court.....I have to serve the mom
>her copy....then what happens?

I think you're way ahead of yourself, because you wrote this post before I answered your last one. You don't need a motion for anything at the moment. At least I don't think so, but I could be lost, because I''m losing track of the order of events fast.

Frankly, you need to get yourself a legal practice guide that is specific to MN jurisdiction and learn how the family law process in your jurisdiction operates. You also need to study the local trial/family court rules. Visit your local county law library.

[TJRodolph]

First off, THANK YOU for all your advice thus far, it is MUCH appreciated.

I did some research online, and I can serve the motion via mail, and it only has to be postmarked 17 days prior to the hearing date. I do know how to fill out a basic motion.

I only communicate with the mom via delivery confirmation priority mail, due to our phone conversations not being productive, i.e...she hollars and then hangs up on me. I saved every single letter over the past year and mail receipt proving she received it.

I have requested from her in several letters, to provide me the school info, the doctor info, the therapist info, to no avail. She doesn't even reply to it. I ask for the grandfather's phone number since the court order says she is to immediately provide me it since our son stays at his house more than 50% of the time. She states that her father doesn't want his number given out and that I can just call for my son at her house.

Question:
1. When I file the Motion to Comple Discovery...and in the request section, can I list that I want the info regarding child abuse AND the school info? Or do them as two separate motions?

2. If mom does not respond to motion for documentation or does not show up for the hearing, then what?

3. What exactly is the interrogatory request used for?

4. Since I have requested in writing from the mom (and proof of delivery) with no success,  is filing the motion to compel discovery the next step?

[TJRodolph]

Gotcha.

I would think that my requests to her in writing previously (which I do have proof of mail delivery) would be considered a request for production. She hasn't produced. So I will work on the motion and affidavit.

last question (honest).....
1. If she doesn't show for the motion hearing, do I have to file the motion for contempt or will the judge just order it?

THANKS AGAIN!!

[socrateaser]

>Question:
>1. When I file the Motion to Comple Discovery...and in the
>request section, can I list that I want the info regarding
>child abuse AND the school info? Or do them as two separate
>motions?

Motion to "compel", not "comple" discovery. You ask for what you've been denied and explain why it is, and these are the magic words, "Reasonable calculated to lead to the discovery of admissible evidence." This means that the evidence you seek doesn't necessarily need to be admissible at trial, but only reasonably likely to aid you in finding the evidence that will be admissible. Anything farther out is a fishing expedition. If your request is for information that directly impacts on some issue before the court, then that information is relevant and therefore discoverable.

>
>2. If mom does not respond to motion for documentation or does
>not show up for the hearing, then what?

You haven't even served her with the request for production, so stop trying to get ahaad of yourself. You don't need a motion to compel discovery until the other party has failed to discover within the time required. Then you need to tell them if they don't immediately respond to the request, that you will file a motion to compel. Then if they don't respond, you file.

>
>3. What exactly is the interrogatory request used for?

"interrogatory" means "questions." You ask specific questions, like the name of the witnesses that the party intends to use at trial, or the address and phone number of the child's physicians. Statistical stuff that doesn't permit much evasion is best.

Although, if she doesn't have an attorney, you may be able to squeeze something really juicy out of her by accident, but if you have to compel the answer by motion, the judge may disallow the question, so I'd stick to basic statistical info in the interrogatories.

There are also, "requests for admissions" which are direct questions that the other party must either admit or deny or state that they have insufficient information to admit or deny. Such questions can be extremely useful because if you get an admission, then that issue is conclusively presumed true and the other party cannot introduce evidence at trial to contradict the admission. But, this is rarely used prior to an initial hearing -- it's only for when the case has proceded far enough to merit eliminating any obvious issues that don't need to be tried, and if you spring them early, the judge will get annoyed with you.

>4. Since I have requested in writing from the mom (and proof
>of delivery) with no success,  is filing the motion to compel
>discovery the next step?

You need to "serve" a "formal" "request for production." A simple letter stating that you want some info is not sufficient. This is court, not a high school debate. If you don't play by the rules, you will get your ass kicked by the judge.

[socrateaser]

>Gotcha.
>
>I would think that my requests to her in writing previously
>(which I do have proof of mail delivery) would be considered a
>request for production. She hasn't produced. So I will work on
>the motion and affidavit.
>
>last question (honest).....
>1. If she doesn't show for the motion hearing, do I have to
>file the motion for contempt or will the judge just order it?
>
>THANKS AGAIN!!

The court will order discovery sanctions. Look them up in the MN code of civil procedure. If the other party doesn't show for a motion to compel, the sanctions could be pretty stiff, but I seriously doubt that a reversal of custody will be ordered. Although, if you actually got to this point, you could ask for the court to issue a warrant for her arrest, and temporary custody of the child during the period of incarceration.

That's not what I'd do if there was another attorney, but since there may not be one, the judge might go for it on the theory that someone must care for the kid if the mom's awaiting a contempt hearing from inside a jail cell.

[TJRodolph]

I totally missed this reply till this morning...sorry. I understand a little better now this complicated legal process.....I will do up a request to produce documents re the child abuse, and an interrogatory request for the physician/school info....serve the mom...and wait the 30 days...then send a 2nd request, stating if she doesn't respond that I will file a motion to compel.