Question About Response

[Lyrael924]

Dear Soc,

Our case is being heard in Clackamas County, Oregon. Original order was entered in Hawaii with no visitation entered, CP (mom) and child (9 on the 7th of January) now reside (since some point in late July) in Montgomery County, Pennsylvania, and I (NCP)reside in Illinois.

We filed a motion for an OSC in November, and mom was served in December. She filed a response with the court on January 9th. Our hearing is scheduled for January 27th. I am not sure how or if I should respond before the hearing, in writing. Here is the exact wording of her response, with names removed and broken into small paragraphs for readability:

"To Whom it May Concern:

I, Mom, am contesting the motion served to me by Dad. Before the appointed court date in Oregon on January 27, 2006, I will be a legal resident of Pennsylvania. The state of Oregon will have no jurisdiction over my son or myself.

Mr. Dad has stated in his petition that he has not had a relationship with his son for four years and that is only partially true. He has not had a relationship with his son in almost 9 years by his choice. I have allowed supervised visitation against my better judgement. I am able to count on one hand the number of times he chose to see his son even when we lived 10 minutes away.

Being physically and emotionally abusive to myself and my son during our brief relationship, I participated in a government study for battered and abused woman suffering from PTSD after leaving my relationship with Mr. Dad. The Hawaii courts found it to be a benefit for my son and myself to change my son's last name so that we could hide and live a safe life without the fear of him.

Mr. Dad suffers from being bipolar and having a borderline personality disorder. He has threatened my life on  numerous occasions and has threatened to kidnap my child and take him "where no one could find him." There is a police report filed in Hawaii over the matter. Mr. Dad was discharged from the military because of his emotion problems. Mr. Dad is very unstable and should not be left alone with any child.

In Mr. Dad's statement he states my son may be experiencing abandonment, and or confusion because of not having a relationship with his biological father but in reality my son, thank God, was very young and has very few memories of Mr. Dad or his family. It is only when my son is reminded does he know who he is.

Being that the petitioner is a virtual stranger the request that have been made are outrageous. In Mr. Dad's chosen inexperience with children and his mental and emotional disabilities, he seems to be unaware that 9-year-old children do not fly on airplanes by themselves. Nor do they spend weeks away from the only parent they know to live with a strange man and his family. Mr. Dad seems to be more concerned with his own wants than with my sons well-being.

I am sympathetic to how depressed and unhappy Mr. Dad is with his life but it is unfair to put that kind of pressure on a child. It is too much to live up to and it is not his fault. If my baby was not living with me I would do everything in my power to see him everyday, talk to him every night and be a real, steady part of his life no matter what.

In the last 8, almost 9 years now we have heard now we have heard from Mr. Dad maybe twice a year and that includes phone calls he says he'll make or presents he says are in the mail but never show up. There are many witnesses to this fact and there is no excuse for it.

The reason Mr. Dad has waited until now to be a part of my son's life is that I have been recently married and after all this time my son has a real father who talks to him, plays with him, makes sure his homework is done and most importantly, is consistent and reliable - two things Mr. Dad is unable to offer my son.

I hope the court takes these things into consideration. There is a judgment on file in Hawaii where my son and myself were born and lived most of our lives. I do not have the funds to travel to Oregon for the court date on January 27, 2006. I am no longer a resident of Oregon and I had only lived in Oregon a few months. I have a full time job and an apartment with a 1 year lease here in PA where my son attends school with his friends.

We have lived in Pennsylvania for 6 months and this is our home. I ask that the court decline jurisdiction. My son is happy, healthy, and stable. Please don't disrupt his life after all this time.

Sincerely,
Mom
Mom's address"

Any mistakes in grammar/spelling are hers. In our motion we asked for alternating Christmases, Thanksgivings, and Spring Breaks, and two consecutive weeks in the summer to be increased one week per year until summer parenting time reaches 6 weeks. Our justification for the motion was as follows (sentence before the semicolon is part of the form from Clackamas County courts:

"I want to change parenting time because I believe the change is in my child's best interests. The specific reasons I want the change and believe the change would be best for my child is:

Son has not had any real relationship with me for the past 4 years, except by telephone calls and birthday and Christmas presents, and may be experiencing feelings of abandonment or confusion because I am not in his life. If I was allowed visitation with Son, he would understand that I do love and care for him, and the time I was away from him was not his fault.

Being able to see me and he would finally be able to meet his two younger brothers, ages 3 and two months. [note: ugly grammatical error in the papers that I JUST noticed there]

When he was 3, he was too young to travel alone, and visitation would have had to take place with his mom. Since our relationship was so strained, this would have led to even more tension and stress placed on him. Furthermore, the school that Son attended in Hawaii had a year-round trimester schedule with very short breaks. In Oregon (and Pennsylvania) he attends a public school, with the regular breaks that would allow him to travel to Illinois to visit me.

Son needs to know that I am his dad, and I love him. He is finally old enough to leave his mom for visits, and travel with my or by airplane alone. I would like to work at reversing the pain and confusion this separation has likely caused him, and to have a consistent presence in his life.

When I attempted to work out visitation terms with Ms. Mom in a telephone conversation on the 14th of July, at 7:00pm, she stated that she did not want and would not consent to a legal agreement regarding visitation. She stated that she would not appear if a court proceeding were to be filed, and stated that she would move to South Carolina and keep Son's location a secret.

To my knowledge, this move has not yet taken place, and no date was provided that it would take place. Whenever I attempted to arrange visits with Severin in the past, Ms. Mom requested that I pay transportation costs for her as well, so that she could accompany Severin. She stated in our telephone conversation on July 14th that I would not be allowed to speak with Severin on the phone until I had a court order that required her to allow contact with him.

After searching for the past 3 months with no information from Ms. Mom as to the health, safety, or location of my son, I learned she and Son had moved to Pennsylvania in mid-July. I was not aware that they had moved until late August, after I attempted to serve Ms. Mom with notice of the hearing previously granted by this court.

I am re-filing this action in Oregon because Son and Ms. Mom have not resided in Pennsylvania long enough to make that Severin's home state, and Severin's grandmother, Grmadmother's Name, and aunt, Aunt's Name, still reside in Oregon. I do not know if Ms. Mom intends to make Pennsylvania her permanent state of residence."

Wow, I hope that was okay to post.

My questions are these:
1) Is her responce likely to be viewed as very credible by the court, even in her absence (although I am sure that it will)?
2) Should we respond to her response in writing before the hearing date?
3) Should we move to dismiss the case and refile in Pennsylvania, or go through with the hearing on the 27th?

Thanks for any help you can give me.

[socrateaser]

>My questions are these:
>1) Is her responce likely to be viewed as very credible by the
>court, even in her absence (although I am sure that it will)?

If the mother was served within the physical borders of the State of Oregon, then she is subject to the Oregon court's jurisdiction. The court could relinquish jurisdiction on grounds of forum inconveniens (inconvenient forum), if it finds that there is very little evidence in Oregon concerning the child's health and welfare.

Your argument is simply that mother will continue to frustrate your access to the child by moving from one jurisdiction to the next, and that the court should not permit her to do so, without credible evidence that the child will suffer greater harm by giving you an opportunity to maintain a relationship with the child, then would exist if the court were to prevent it.

>2) Should we respond to her response in writing before the
>hearing date?

If you choose to file another pleading, it would be styled as a "Petitioner's Reply to Respondent's Response to Petitioner's ______" (whatever you named your original pleading).

There really isn't any reason for you to respond, if the mother was served within the physical borders of Oregon, and you have proof of service filed with the court.

You will get a hearing if you don't reply. If you do reply, the court may just decide to use your reply as a justification for not holding any hearing. But, you could reply, stating what I expressed above, and then you could suggest that you would be amenable to a telephone hearing, in order to relieve both yourself the other parent from the obligation of a phyiscal hearing, but that if the court determines that Oregon is not an appropriate forum for the action, then you would ask that the court not dismiss this action, unless the mother agrees to specifically submit to the jurisdiction of Pennsylvania for a final determination of this matter.

The object of the above is to make you appear reasonable. Obviously, Pennsylvania is closer to you, so it may save you money and time in the future. But, you don't want to let the mother off the hook, because she may just leave her current claimed residence as soon as you file in PA.

>3) Should we move to dismiss the case and refile in
>Pennsylvania, or go through with the hearing on the 27th?

See above.

[Lyrael924]

Dear Soc,
Thanks for wading through all that. Unfortunately, although the initial registration that opened the case was served in Oregon, this motion was served in Pennsylvania after service in Oregon failed as she had moved.

1) Are we SOL, or should we respond as you suggested?

[socrateaser]

>Dear Soc,
>Thanks for wading through all that. Unfortunately, although
>the initial registration that opened the case was served in
>Oregon, this motion was served in Pennsylvania after service
>in Oregon failed as she had moved.
>
>1) Are we SOL, or should we respond as you suggested?

If you can prove that he child was a resident of Oregon for six months, then you could hold her to Oregon jurisdiction based on the provisions Uniform Interstate Child Custody and Enforcement Act. Otherwise, I'd say you're probably SOL, and that you should voluntarily dismiss your motion and file a petition in PA.

This assumes that you know where the mother is and that you can serve her in PA.

You can still ask that Oregon not relinquish jurisdiction until the mother accepts PA jurisdiction, so as to prevent her from continuing to avoid a court resolution of this issue. But, in the end, you're not likely to be able to hold her to Oregon, because the court simply has no interest in any of the parties -- no one lives in Oregon.

So, this time, you will register your current order in PA and simultaneously move for a new custody determination. Then, you will serve both the notice of the registration and the motion for custody, so that the mother is on notice of both. Her response to the Oregon Court will provide you with evidence of her intent to make PA her permanent residence, so that if she bolts again, the PA court will force her to return

[Lyrael924]

 I was going to call and request a copy of his school records, although I could also stop by the school when I go there. I know which school my son went to, and I have his birth date, social security number, and a certified copy of his birth certificate with me listed as his father.

1) Would school records be credible proof?
2) If I brought copies of his school records showing that he was enrolled long enough to make their residency 6 months, since the sheriff's return on the failed service reflects when they moved away from Oregon, would that be proof enough of their residency?
3) Do you suggest calling and requesting the records, or showing up in person to make copies?

Again, thanks so much for your help.

[socrateaser]

>1) Would school records be credible proof?

Yes.

>2) If I brought copies of his school records showing that he
>was enrolled long enough to make their residency 6 months,
>since the sheriff's return on the failed service reflects when
>they moved away from Oregon, would that be proof enough of
>their residency?

Yes,  assuming that the court accepts the records as evidence without a witness from the school to testify to their authenticity. I would say that the records are admissible under the business records exception to the hearsay rule, but, the court could refuse to admit them.

>3) Do you suggest calling and requesting the records, or
>showing up in person to make copies?

I suggest that you get a copy of the records from the school and make certain that they prove what you think they prove (six month residency), and then if they do, then you subpoena duces tecum the custodian of records from the school to appear with the records at the hearing. That way, the court cannot fail to admit them into evidence.

Even if you do all of this, the court still has the ability to waive jurisdiction in favor of PA. It's just not a slam dunk. But, if you go to the trouble of subpoenaing the school, the court will see how serious you are and may decide that enough is enough and assert jurisdiction.

It's real tough call, and depends on the particular judge, and his/her opinion of your credibility. The mother has placed your mental state at issue, so you may want to have available evidence to show that you're not a danger or otherwise unstable, just in case the judge wants to see something. I wouldn't offer it up voluntarily unless I were asked.

Also, the mother has made certain allegations in her responsive affidavit, which if untrue, are probably so defamatory that you could actually sue for the injury. Of course, if she has no assets then you'll be wasting your time, but the letter is pretty negative.

I must tell you, that in spite of the amateurish nature of her response, I believe that the mother may have been coached by an attorney, because she has managed to set out facts that could reasonably be used by the court to waive jurisdiction, i.e., you're nuts, she's not, she's running to escape your evil nature, you've made no contact with the child, etc.

I'm not saying any of this is true, just that the mother seems to have covered all the bases while simultaneously reading like she is poor and ignorant.

If this was all done just by accident, then she is accidently quite clever.

[Lyrael924]

Soc,
Thanks again for all of your help. Unfortunately, none of this makes any mention of the fact that the mother and I lived together through her pregnancy and until my son was 9 months old. She, I, and Severin moved to Illinois to a house my parents bought us, and then after 3 months she flew with Severin back to Hawaii for a "vacation." She decided not to come back, NOT because there was any abuse, but because she had no friends and family in Hawaii.

I was NEVER abusive to my son or to her, physically or emotionally, and the police report she refers to was made by her regarding some remarks I supposedly made to a friend of hers. No charges were ever filed in the matter, and there has never been any sort of domestic violence proceeding of any sort between us. In fact, until a few years ago, she even had Son send me pictures he had colored, Father's Day cards, etc. I also have letters she wrote during the time she was gone that do not even allude to her not coming back.
I was honorably discharged from the military on 10% disability for depression, not the disorders she mentions.

1)What is credible evidence of my sanity and stability?
2) Should I lay before the court a letter she wrote dated 2 days before she left because it characterizes and relates to the relationship? She mentions and I quote "I would never keep Son from you, you're too important."
3) Are personal letters admissable evidence?
Oh, and most important 4) Can I find the procedure for a subpeona somewhere in the Oregon civil procedures? I have never served one before, and am not sure how to do that.
4) If I choose not to sue for defamation, will that "count against" me somewhere down the line? I don't want to sue my son's mother unecessarily.
Thanks again,
A Grateful Dad

[socrateaser]

>1)What is credible evidence of my sanity and stability?

Eval from a psychologist stating that you're reasonably within the norm. A standardized test like the "Minnesota Multiphasic Personality Inventory" (MMPI-2) would be good, but you'll need an expert witness to explain the results.

>2) Should I lay before the court a letter she wrote dated 2
>days before she left because it characterizes and relates to
>the relationship? She mentions and I quote "I would never keep
>Son from you, you're too important."

That would be great. Especially, because it indicates that she's not really afraid of you at all, and that contradicts her affidavit, and pretty much blows her credibility out of the water. I assume that this letter is signed by the other party. If not, then you could have an authentication problem. But, if so, then you're golden. I wouldn't bring the letter out until the other parent actually alleges that your mental state is suspect. Then you can cross examine her by offering the letter to impeach her testimony and she'll look like crap.

PS. Don't use phrases like "lay before the court." You sound like you're living in the 18th Century, and if you do that in court the judge will laugh at you. You "offer" evidence -- simple as that.

>3) Are personal letters admissable evidence?

If they're from the other parent, absolutely. That's called an evidentiary admission, and if it's against the other party's interests, then it's up to that party to explain. A letter from a third party witness, who's not available for testimony is hearsay, and generally inadmissible, unless there are "circumstantial guarantees of trustworthiness" (legal magic words that basically mean that the judge finds something about the evidence makes it appear authentic and not reasonably likely to be falsified. ;-))

>4) Can I find the procedure for a subpeona somewhere in the Oregon civil procedures? I have never served one before, and am not sure how to do that.

Call the court clerk and ask him/her to issue you a "subpoena duces tecum" in blank. The clerk will stamp it and send it to you. Then you can fill it in and have it served on the "Custodian of Records" for NAMEOFSCHOOL. I recommend personal service, even though technically you can serve by certified mail, because your time is quickly running out They need to be served at least 15 days prior to trial.

See ORCP Rule 55 (http://www.leg.state.or.us/ors/orcpors.htm).

>5) If I choose not to sue for defamation, will that "count
>against" me somewhere down the line?

Nope. It's an issue for a civil court, not a family court, so a different judge would hear it under entirely different circumstances.

[Lyrael924]

>Eval from a psychologist stating that you're reasonably within
>the norm. A standardized test like the "Minnesota Multiphasic
>Personality Inventory" (MMPI-2) would be good, but you'll need
>an expert witness to explain the results.

Well, if I was independently wealthy, I would definitely retain and expert witness. Although if I had the money for an expert witness, I would probably have a lawyer as well, and wouldn't be stumbling around pro se like this. :) But an eval I can probably do.

>
>That would be great. Especially, because it indicates that
>she's not really afraid of you at all, and that contradicts
>her affidavit, and pretty much blows her credibility out of
>the water. I assume that this letter is signed by the other
>party. If not, then you could have an authentication problem.
>But, if so, then you're golden.

The letter is signed by her, and obviously matches the signature on the prior order, of which a certified copy is on file with the court.

I wouldn't bring the letter
>out until the other parent actually alleges that your mental
>state is suspect. Then you can cross examine her by offering
>the letter to impeach her testimony and she'll look like
>crap.

How will I do that if she definitely doesn't show for the hearing?

>PS. Don't use phrases like "lay before the court." You sound
>like you're living in the 18th Century, and if you do that in
>court the judge will laugh at you. You "offer" evidence --
>simple as that.

Sometimes being pro se is extraordinarily embarassing, but thanks for the heads up.
>

>
>If they're from the other parent, absolutely. That's called an
>evidentiary admission, and if it's against the other party's
>interests, then it's up to that party to explain. A letter
>from a third party witness, who's not available for testimony
>is hearsay, and generally inadmissible, unless there are
>"circumstantial guarantees of trustworthiness" (legal magic
>words that basically mean that the judge finds something about
>the evidence makes it appear authentic and not reasonably
>likely to be falsified. ;-))

Hmmm. Well, then, I guess I will bring along Priya's mother's letters as well. Maybe the judge will find some circumstantial guarantees of trustworthiness.

>Call the court clerk and ask him/her to issue you a "subpoena
>duces tecum" in blank. The clerk will stamp it and send it to
>you. Then you can fill it in and have it served on the
>"Custodian of Records" for NAMEOFSCHOOL. I recommend personal
>service, even though technically you can serve by certified
>mail, because your time is quickly running out They need to be
>served at least 15 days prior to trial.
>
Well, since 15 days before the 27th is today, I guess we will have to do without the subpeona. Crappy, but reality. I would have to receive the mail from Oregon to Illinois, and then mail it back. If I could turn back time...bleagh.

1) How can I cross-examine her if she doesn't show at the hearing? (she did say in her response that she wasn't coming)

2) Should I request the subpeona anyway, even though it is technically too late?

3) Do you suggest I offer the letters at the actual hearing or mail them to the court with my response to her response?

Thanks for your help, Soc.

[socrateaser]

>How will I do that if she definitely doesn't show for the
>hearing?

If she doesn't show, then you introduce the letter as part of your case, and don't worry about impeaching her, because your letter is an admission against party interest and if she's not there, then the letter will stand as her words, unexplained, which favors you.

>>Call the court clerk and ask him/her to issue you a
>"subpoena
>>duces tecum" in blank. The clerk will stamp it and send it
>to
>>you. Then you can fill it in and have it served on the
>>"Custodian of Records" for NAMEOFSCHOOL. I recommend
>personal
>>service, even though technically you can serve by certified
>>mail, because your time is quickly running out They need to
>be
>>served at least 15 days prior to trial.
>>
>Well, since 15 days before the 27th is today, I guess we will
>have to do without the subpeona. Crappy, but reality. I would
>have to receive the mail from Oregon to Illinois, and then
>mail it back. If I could turn back time...bleagh.

Oregon law requires that witnesses make every possible effort to comply with a subpoena, even if it's not timely served, so you can still serve it, and the school will have to find an excuse to not show. Then you can offer the court your copies in lieu of the school not showing up. Worth a shot.

>1) How can I cross-examine her if she doesn't show at the
>hearing? (she did say in her response that she wasn't coming)

You can't, but she can't defend herself, and she'll look like crap.

>2) Should I request the subpeona anyway, even though it is
>technically too late?

Yes, see above.

>
>3) Do you suggest I offer the letters at the actual hearing or
>mail them to the court with my response to her response?

"Reply", not "Response." Motion->Response->Reply->Response to Reply->Reply to Response, etc., ad infinitum.

And, you only file "copies" with the court, not originals. You bring originals to the hearing. Anyway, this is a crap shoot. I would hold back anything else, if you think there's any chance that she will send an attorney to represent her, which is still possible. If you want to bet that neither she nor anyone else will show up, then I'd put everything into a Reply.

It's pretty much a coin toss, based on the facts of the case. I'll leave it up to you.