Re: Teenage Boys - Contempt of Court

[SFMedic]

Dear Soc,

I have an upcoming court date for a Contempt of Court motion, regarding denial of visitation from the Mother.  This has been going on since July 31, 2005, the case is scheduled for a 1hr block of time.  Mother / Kids lives in WV and I reside in MD, court hearing is in MD.  
Both of us so far has been Pro Se, unless the Mother show's up this time with an attorney.

Children, both boys, are now 14 and just recently 16, as of Dec 4th last year.

On Dec 7, 2005, we attended a pre-trial conference, where we were scheduled for our Jan 20, 2006 hearing, for the 1st Contempt motion, and was also told to have any amendments or pleadings filed no later than 3 Jan 06.  

I contacted the court house today, and was informed they received as of today, a letter from the Mother, requesting a telephone conference during the court trial for one of her witnesses (WV Social Worker).

This Social Worker from WV will be testifying for the Mother, to provide I guess (for lack of a better term) explanations as to why the Mother continues to deny my scheduled visitation.

This same Social Worker was suppose to submit a written report for the Nov 18, 2005 hearing regarding a temporary protective order, which was dismissed due to "insufficient evidence".

The findings from the MD case worker was, there was no basis for the complaint, and feels this is nothing more than a discipline issue, I'm strict and the Mother let's them do whatever they want.  The MD Case Worker will be testifying on my behalf, he actually offered and approached me about this during our pre-trial conference.

There has "never" been an issue or documented report of abuse, the Mother is using this as a means to interrupt, if not, stop my visitation.

On Dec 27, 2005, I filed another Contempt of Court motion, 3rd motion filed, since Oct 11th, regarding denial of visitation for the Thanksgiving and Christmas holiday

1.  Question:  Given the fact that the issues of visitation is taking place in MD, would the WV Social Worker have any jurisdiction regarding the issues surrounding the Contempt of Court motion?  

2.  Question:  I was also told by the court house, a Judge is reviewing the case file as we speak.  Should the Judge allow this phone conference as a witness and evidence, how would I best approach this, isn't this something I could "object" to during the court date?

3.  Question:  Even though the Nov 18th temporary protective order was dismissed, to date, I never received a written report, neither has the court house, I've periodically reviewed the case file.  Is this something I should persue through the Mother / Social Services, or do I just wait until the court date and see what the Judge has decided?  

4.  Question:  I was under the impression both parties were to notify each other in advance as to who their potential witness will be?  Is this something that is not strictly adhered to by the Judge, because of being Pro Se?

5.  Question:  During the Dec 7th pre-trial conference, the Mother was warned of sanctions being brought against her, should she continue denying my visitation (believe it when I hear it) in my Contempt motion, I've requested a reversal of custody, knowing it's a long shot, what other "sanctions" could I request, if I'm asked by the Judge as an alternative?

thanks...

[socrateaser]

>1.  Question:  Given the fact that the issues of visitation is
>taking place in MD, would the WV Social Worker have any
>jurisdiction regarding the issues surrounding the Contempt of
>Court motion?  

I would file a written motion to supress the testimony of the social worker unless that witness appears in person at trial, on grounds that it is not fair for you to be forced to cross examine an adverse witness over the phone where the court cannot assess the witness' visual demeanor and credibility, and where the witness cannot be subject to the court's contempt powers if he/she refuses to answer or misleads the court in some way.

This is not a civil action, it is for criminal contempt and all the witnesses should be in the courtroom, not hiding in a different jurisdiction.

>2.  Question:  I was also told by the court house, a Judge is
>reviewing the case file as we speak.  Should the Judge allow
>this phone conference as a witness and evidence, how would I
>best approach this, isn't this something I could "object" to
>during the court date?

See above.

>
>3.  Question:  Even though the Nov 18th temporary protective
>order was dismissed, to date, I never received a written
>report, neither has the court house, I've periodically
>reviewed the case file.  Is this something I should persue
>through the Mother / Social Services, or do I just wait until
>the court date and see what the Judge has decided?  

Nope. If it was dismissed, the dismissal should be in the court records, and you can therefore refer to it by number and produce a copy if necessary at trial. The other parent cannot defend the contempt on grounds that you were subjected to a temporary order that was dismissed. The dismissal demonstrates that insufficient grounds were available to demonstrate that you were any danger to the child, so if anything the dismissal helps you and hurts your ex.

Her only defense to witholding visitation is proof that you are an imminent danger to the child. Otherwise, she should have filed a motion to modify visitation so that she wouldn't need to violate the court orders.


>4.  Question:  I was under the impression both parties were to
>notify each other in advance as to who their potential witness
>will be?  Is this something that is not strictly adhered to by
>the Judge, because of being Pro Se?

Probably not, but you can definitely object to any witness offerred by the other parent to advance her defense as not discovered prior to trial and ask for either a continuance plus costs for your wasted time while you prepare to meet the witness' testimony, or ask that the court refuse to allow the testimony as a discover sanction.

>5.  Question:  During the Dec 7th pre-trial conference, the
>Mother was warned of sanctions being brought against her,
>should she continue denying my visitation (believe it when I
>hear it) in my Contempt motion, I've requested a reversal of
>custody, knowing it's a long shot, what other "sanctions"
>could I request, if I'm asked by the Judge as an alternative?

Filing costs, and any costs of preparing evidence for trial. Transportation costs for missed visitation and for future visitation. Or, you could hire an attorney and then ask the court to order the other parent to foot the bill, although you'll have to come up with the up front retainer.

[MixedBag]

Given my personal recent experience for your question number 1.  (I am pro se).

We too had a situation that was opened by DHR in AL and WV.  The incident happened in AL, the child lived in WV.  Jurisdiction for court is WV.

AL said that WV had the lead because the child lives in WV.

WV said that AL had the lead because the incident happened in AL.

Both states insisted (for a while) that they did not have jurisdiction to take the lead.

In the end, AL took the lead because they agreed to apply the same standard that police officers do -- jurisdiction is where the incident happened.

I brought the final report on original letterhead to court as proof that the case was closed out with no finding.  It was not accepted into court as evidence by the judge.  He said "There's a proper way to get it admitted into evidence and this is not the way."  I have since figured out what he meant and how to do that in the future.  Then I testified about what happened because I was the ONLY one there.  EX's testimony was accepted understanding that it was "hearsay" because EX could really only testify what my son told him.  Son was not allowed to testify (because EX didn't follow proper procedures to ask the court to allow a minor to testify).  EX had to admit that he was not present during the incident.

We had to submit a list of witnesses 10 days to the court prior to the court date.  We had to exchange evidence 10 days prior to the court date.  All of this was outlined in what I believe was called a "Scheduling order" by the judge issued after our pre-trial conferences were over.  If the person wasn't on the witness list, they weren't allowed to testify, period.

I know -- different judges, different jurisdictions different rules.  I totally agree with Soc's answer about having the WV Worker not testify unless they are willing to come to court and face you.

And I have a question about #3:

WHO issued the temporary protective order that was dismissed on November 18th?

[SFMedic]

Dear MixedBag / Soc,

Regarding the initial temporary protective order, it was initiated by the Mother and filed against me in the state of MD.  The hearing for the P.O. was also held in the same jurisdiction that the current Contempt of Court action is taking place.

Regarding the report, I was not given a copy of it, a week following the dismissal of the case, I went to the court house, requested the case file to ask for a copy, and was denied because it's a "sealed" document. The only way I can obtain a copy, is by sending a request to the judge stating the reason for the request, then wait and see what his decision will be.

I was at the court house this past Friday afternoon, to hand carry a written response to the Mother's motion (petition) for the tele-conference testimony, which at first was turning into a three ring circus.  Because they (clerk of court) were looking at my response as a "new" motion and was being told it would be at least 18 days before it would be reviewed and processed for action, standard time frame for new motions.  Until I kept insisting it was only a response to the Mother's motion, that I was never made aware of and that I wasn't properly notified by not ever being served notice (certified mail).

Of course, I filed out a basic certificate of service letter head from the records office, for my case file and mailed out my response same day, to the Mother via certified mail.

Since the time of my initial Contempt of Court motion (Oct 11, 2005) I have filed two more, one on Dec 7th and another on Dec 27th.  Still waiting for a response regarding the last two.  All three motions have to do with the same issue "denial of visitation".  

The last two motions center around denial of visitation, regarding specific dates for the "Thanksgiving and Christmas" holiday period, that are already stated in my current court order.

So I'll get to go through all of this two more times again, yippie..!

1.  Question:  Can I introduce the same evidence for the upcoming two other Contempt of Court motions, should the Judge not impose any sanctions against the Mother for the Jan 20th hearing and she continues to deny my visitation between now and the time of the new scheduled hearings?

2.  Question:  Is there a specific way of how I should word my request regarding a copy of the Social Workers report that's in the case file?

thanks...

[SFMedic]

Dear Mixed Bag,

My apologies with not being more clear with my reference regarding the case file, I was referring to the "court" case file.

Regarding my additional "Contempt of Court" motions, I too was under the impression of them being "combined" into one.  Initially prior to my being served with the temporary protective order, I had already filed a "Enforce and Modification" for visitation and a "Contempt of Court" motion.  Both motions were combined by a "Judge", to be heard on the same date (Dec 7th)

I then attended the Dec 7th pre-trial conference, under the mistaken impression that something would take place regarding the Mother being found in contempt of court.  Instead what happen was the "Master" turned around and separated the two motions.

The 1st Contempt of Court was scheduled for Jan 20th, the 2nd & 3rd, as I said previously, still a wait and see.

The "Enforce & Modify" was rescheduled as a pre-trial conference for April 25th, and then of course having to wait to see what the Master / Judge will figure out as an actual court hearing.

As it stands still haven't seen my boys since July 31st.  What was interesting, is three nights ago I called, the Mother answered, she was polite, I asked to speak with the children, and they were the same way, as if nothing ever happened.  Of course I tend to think this only took place, because of our upcoming Jan 20th hearing.

The Mother has spaired no expense with telling the children everything that's been going on with the court documents, so I'm always made out to be the bad guy for pursuing this situation through the courts, as if I have much of a choice in the matter anyway.

They've been turned against me from day one of taking any action through the courts.

Thanks...

[socrateaser]

>1.  Question:  Can I introduce the same evidence for the
>upcoming two other Contempt of Court motions, should the Judge
>not impose any sanctions against the Mother for the Jan 20th
>hearing and she continues to deny my visitation between now
>and the time of the new scheduled hearings?

Under the doctrine of Res Judicata, a party who fails to raise all claims related to the same transaction or occurence, is barred from later raising those claims in a subsequent action. So, if you have multiple motions that raise different issues based on the same set of facts, then you need to ask the court to hear them all as part of the same claim, but requesting that the court consolidate those motions, on grounds that if they are not consolidated, they may be barred. You could probably do this with a letter to the court explaining the problem, designating the file numbers for the motions, and copied to the other parent or parent's attorney.

Similarly, under the doctrine of Collateral Estoppel, a party who has an opportunity to fully and fairly litigate a particular issue on the merits in a prior action is barred from relitigating that issue in a different claim, unless the underlying facts have changed, the burden of proof is lower, or the stakes are higher. So, if you have two motions for two different claims, such as for contempt followed by enforcement of visitation, and you need a decision on the same issue, then you can relitigate the issue because the burden of proof for visitation enforcement is lower than the burden for contempt.

>2.  Question:  Is there a specific way of how I should word my
>request regarding a copy of the Social Workers report that's
>in the case file?

Specific, I don't know, but you could write this:

(assumes that you are petitioner)

Petitioner, YOURNAME, pro se, hereby appears and moves that the court order unsealed, the __________, sealed by the court on ??/??/????, on grounds that information contained therein concerning _________ is relevant to proof of the issue of _______, currently before the court in Petitioner's motion for ______, set for hearing on ??/??/????, and because Petitioner has no other independent means of proving this issue.

Dated _____,

By: __________
YOURNAME
Petitioner, Pro Se

[SFMedic]

Dear Soc,

Thanks for the previous response, and my questions are a follow-up.

1.  Question:  Does the "denial of details" make a difference with regards to the 2 other contempt of court motions, receiving an actual hearing with a judge?

2.  Question:  Based on the "denial of details" would you recommend my making a request to the Judge to have them consolidated during the time I'm present for the Jan 20th hearing?  I know you said previously to submit a letter to the court, the problem is, the Master from the Dec 7th pre-trial motion stipulated any amendments or pleadings were to be submitted to the court no later than 3 Jan 06.

Here are the "details" and "dates" for the following contempt motions, still waiting on a decision from the courts regarding the last two motions.

#1  filed 11 Oct 05 - "Defendant has violated standing court order by refusing to bring both children to designated meeting place (Hancock, MD) during scheduled weekends and holidays, i.e. (Labor Day).  Defendant has denied telephone access to children and has refused to encourage or return phone calls from messages left on answering machine".  

*** Appropriate relief - furnishing 50% transportation as per the standing court order, return to standing visitation schedule, visitation with children during 2005 Thanksgiving per court order.

#2 filed 07 Dec 05 - "defendant continues to violate standing court order for over 4 months, in light of the findings and verdict, that was rendered from two previous motions (Nov 18th and Dec 7th) along with the willful, and deliberate discounting of recommendations, made regarding visitation resuming immediately from Judge Xxxxx and Master Xxxx"

*** Appropriate relief - That this Honorable Court pass an order finding the Defendant in contempt and that custody of the minor children be granted to the Plaintiff.

#3 filed 27 Dec 05 - "Defendant has made it a matter of habit, through the willful and conscious disregard with ignoring a valid and enforceable standing court order, by denying specific periods of scheduled weekend and holiday visitation with the childre, during the period of the 2005 Thanksgiving (Nov 23rd - 27th) and Christmas (26 Dec 05 - 02 Jan 06) holiday period".  

*** Appropriate relief - That this Honorable Court pass an order finding the Defendant in contempt and that custody of the minor children be granted to the Plaintiff.

3.  Question: I'm concerned both of my boys will probably be asked to testify on behalf of their Mother.  The youngest is now 14, will turn 15 on Feb 20, 06 and the oldest just turned 16 on Dec 4, 05.  Is the only thing I can do is object and request of the Court / Judge that they provide testimony in chambers?

4.  Question:  Would it be a bad move on my part to ask the Judge / Court that the boys are removed from the court room before the proceedings begin?  I realize all I can do is ask, and the Judge may very well turn me down, I just personally would not want them present in the first place, especially if they are not testifying.

5.  Question:  Would it be to my advantage with asking the court if I could summarize the events of the case that caused me to submit the contempt motion in the first place?

6.  Question:  If I'm denied a chance to offer a summary, would it make sense to offer my personal testimony first, before calling any other witness, as a matter of my testimony being part of the court record and the Judge having an opportunity to know what I've done for my children leading up to the  Jan 20th court hearing?  Was wanting to offer my own personal testimony without having or trying to make the same points through cross-examing the Mother, given that I only have an hour in court.

thanks...

[socrateaser]

>1.  Question:  Does the "denial of details" make a difference
>with regards to the 2 other contempt of court motions,
>receiving an actual hearing with a judge?

You must prove each individual incident of contempt. If you use the facts for one contempt, then you can't use it for some other contempt, because once it's tried, retrying the facts would be double jeopardy, because contempt is a criminal action, so you only get one shot at the defendant, unless the facts prove something else other than contempt, or the facts prove two different contempts, i.e., denial of parenting, and failure to provide the children's current residence address (for example).

>2.  Question:  Based on the "denial of details" would you
>recommend my making a request to the Judge to have them
>consolidated during the time I'm present for the Jan 20th
>hearing?  I know you said previously to submit a letter to the
>court, the problem is, the Master from the Dec 7th pre-trial
>motion stipulated any amendments or pleadings were to be
>submitted to the court no later than 3 Jan 06.

If you're using the same facts to prove contempt during the same transaction or occurrance, then you need to have them consolidated, and the judge should understand this.

>#1  filed 11 Oct 05 - "Defendant has violated standing court
>order by refusing to bring both children to designated meeting
>place (Hancock, MD) during scheduled weekends and holidays,
>i.e. (Labor Day).  Defendant has denied telephone access to
>children and has refused to encourage or return phone calls
>from messages left on answering machine".  
>
>*** Appropriate relief - furnishing 50% transportation as per
>the standing court order, return to standing visitation
>schedule, visitation with children during 2005 Thanksgiving
>per court order.
>
>#2 filed 07 Dec 05 - "defendant continues to violate standing
>court order for over 4 months, in light of the findings and
>verdict, that was rendered from two previous motions (Nov 18th
>and Dec 7th) along with the willful, and deliberate
>discounting of recommendations, made regarding visitation
>resuming immediately from Judge Xxxxx and Master Xxxx"

This is not gonna cut it at trial. You need to prove each and every occurrance during the four months that you allege to be contempt, and you must do so beyond all reasonable doubt, or you lose. You can't just make a vague reference.

>*** Appropriate relief - That this Honorable Court pass an
>order finding the Defendant in contempt and that custody of
>the minor children be granted to the Plaintiff.

This isn't appropriate relief. Appropriate relief is make up time and monetary sanctions to encourage the other parent's cooperation.

>#3 filed 27 Dec 05 - "Defendant has made it a matter of habit,
>through the willful and conscious disregard with ignoring a
>valid and enforceable standing court order, by denying
>specific periods of scheduled weekend and holiday visitation
>with the childre, during the period of the 2005 Thanksgiving
>(Nov 23rd - 27th) and Christmas (26 Dec 05 - 02 Jan 06)
>holiday period".  

Just make sure you can prove each individual allegation of contempt  beyond reasonable doubt.
>
>*** Appropriate relief - That this Honorable Court pass an
>order finding the Defendant in contempt and that custody of
>the minor children be granted to the Plaintiff.

Appropriate relief would be a finding of a substantial change in circumstances affecting the child(ren)'s best interests, and a new custody hearing, and perhaps change of primary custody, but, frankly primary is a Hail Mary.

>3.  Question: I'm concerned both of my boys will probably be
>asked to testify on behalf of their Mother.  The youngest is
>now 14, will turn 15 on Feb 20, 06 and the oldest just turned
>16 on Dec 4, 05.  Is the only thing I can do is object and
>request of the Court / Judge that they provide testimony in
>chambers?

Hope that they are asked to testify. You should ask the court to find and conclude that mother's bringing the children to testify is a substantial change in circumstances and warrants a new custody hearing.

>4.  Question:  Would it be a bad move on my part to ask the
>Judge / Court that the boys are removed from the court room
>before the proceedings begin?  I realize all I can do is ask,
>and the Judge may very well turn me down, I just personally
>would not want them present in the first place, especially if
>they are not testifying.

No, it would be good. If the kids were testifying against the mother, it would be impossible, because in a criminal action, the defendant has a constitutional right to confront all adverse witnesses. But, if the kids are testifying for the defendant, then there's no constitutional impediment.

>5.  Question:  Would it be to my advantage with asking the
>court if I could summarize the events of the case that caused
>me to submit the contempt motion in the first place?

No summary. You must prove the precise facts of each and every individual contempt beyond all reasonable doubt. Don't even ask, because the judge will look at you like you've just grown a third eyeball.

>6.  Question:  If I'm denied a chance to offer a summary,
>would it make sense to offer my personal testimony first,
>before calling any other witness, as a matter of my testimony
>being part of the court record and the Judge having an
>opportunity to know what I've done for my children leading up
>to the  Jan 20th court hearing?  Was wanting to offer my own
>personal testimony without having or trying to make the same
>points through cross-examing the Mother, given that I only
>have an hour in court.

What you've done for your children is irrelevant to proving your ex's contempt, so it's inadmissible, unless the judge allows it. If I were judge, I wouldn't, because it would be a waste of time.

As for cross examining the mother, unless the mother is an idiot, which is possible, she won't testify and you can't cross examine her because in a criminal action she can't be compelled to testify against herself.

If mother is represented by counsel, I guarantee that mother won't testify.

[SFMedic]

Dear Soc,

I just contacted the court house, and I've been informed a response has been sent in the mail.  Informing me that my 2nd and 3rd "Contempt of Court" motions "were not necessary, as I'm already scheduled for hearing on Jan 20th, regarding the contempt motion filed on Nov 8th".

1.  Question:  I'm not sure if this is a good thing or bad thing, could this mean they are being rolled up into one or they have been completely discarded for whatever reason?

Regarding my memorandum relating to the Mother's request for a telephone conference as witness testimony, it didn't marry up with the court case file in time (shocker), and will be forwarded tomorrow with the postponent office and then transferred to a chambers Judge for review.

Apparently the Mother's motion has not been ruled either at this time.  An FYI, we attended a hearing on Dec 7th with a Master, who had both of us sign a statement which stipulated any "amendments or pleadings" were to be filed NLT 3 Jan 06.

2.  Question:  The Mother's petition arrived at the court house on 5 Jan 06, based on the document we signed, and my memo responding was filed the following day, shouldn't it automatically be dismissed based on missing the agreed upon deadline date set forth by the Master?

Thanks....

[socrateaser]

>1.  Question:  I'm not sure if this is a good thing or bad
>thing, could this mean they are being rolled up into one or
>they have been completely discarded for whatever reason?

Be prepared to prove all the contempts in all of your motions. The defendant is on notice, and it's up to her to ask for more time.

>2.  Question:  The Mother's petition arrived at the court
>house on 5 Jan 06, based on the document we signed, and my
>memo responding was filed the following day, shouldn't it
>automatically be dismissed based on missing the agreed upon
>deadline date set forth by the Master?

You can definitely argue this point and you will probably win. If the issue were about the admission of some substantive evidence or witness, and you wanted to exclude based on a time deadline, you would probably lose, because courts must do substantial justice and keeping relevant evidence out on a technicality doesn't usually happen. The court would give you a continuance so as to provide you more time to prepare, in such a case.

But, on a telephone hearing, I'd say that the other parent's late filing would control, assuming that the Master is aware that the pleading is late -- which may not be the case.