Need help with temporary custody issue

[Blackcandt]

My ex-wife and myself share physical custody of our three children. I recently found out of abuse going on in the home in which the children reside with her. I took all three children to a Psychologist and she testified in court for me as well. The judge confirmed the abuse and stated that since she is a district judge the only way that she can hand over custody to me would be if she had evidence that my ex knew about the abuse and let it go on. So she gave my exes custody to her parents until our Circuit Court hearing. So now I share custody with the grandparents. They are trying to take over everything in the meantime and there is no judge that can hear my case until April 21st.  Any suggestions?

[socrateaser]

>My ex-wife and myself share physical custody of our three
>children. I recently found out of abuse going on in the home
>in which the children reside with her. I took all three
>children to a Psychologist and she testified in court for me
>as well. The judge confirmed the abuse and stated that since
>she is a district judge the only way that she can hand over
>custody to me would be if she had evidence that my ex knew
>about the abuse and let it go on. So she gave my exes custody
>to her parents until our Circuit Court hearing. So now I share
>custody with the grandparents. They are trying to take over
>everything in the meantime and there is no judge that can hear
>my case until April 21st.  Any suggestions?

Yes. Follow the mandatory posting guidelines if you want a response in the future. This is a short post so I'll cut you a break, and because I'm feeling good from vacation.

You need to prove to the court that the child's best interests will be served by your being awarded custody. The grandparents should not be preferred unless they first demonstrate that the child will suffer some harm by custody not being granted in their favor.

You need an attorney, as there are Constitutional rights in play here, and your success in asserting them may prevent the judge from playing fast and loose with the law -- which appears to be his/her leaning at the moment.

[Blackcandt]

Thank you for your reply. We actually do have an attorney and according to everyone in this small county he is the best.  As you can tell I am  new at all of this. Our hearing is for April 21st. We received a motion from her attorney today that state wanting to delay our court date:

"The Respondent has, this date, mailed to the Petitioner interrogatories, which must be answered prior to any hearing herein in order to be used by the Respondent."

"Finally, Respondent states that the Petitioner is not prejudiced by this motion, because, in so far as custody and visitation the Petitioner is in the same situation as he was prior to this litigation."

1.  How hard is it to get a court date delayed due to these statements?
2.  I assume if we answer his interrogatories then there should be no issue to delay. correct?

[socrateaser]

>1.  How hard is it to get a court date delayed due to these
>statements?

Not hard at all. The requirement for a delay is to show good cause and demonstrate that the other party's interests will not be prejudiced as a concequence. The motion apparently does both, by arguing that interrogatories are required to make the Petitioner's case, and arguing that Respondent's circumstances are unchanged.

>2.  I assume if we answer his interrogatories then there
>should be no issue to delay. correct?

Well, it would require a new motion on Petitioner's part stating that the attorney has had insufficient time to prepare after receiving the interrogatories.

If I was objecting to the continuance as currently proposed, I would argue that the interrogatories are irrelevant, as the question is merely whether or not the Petitioner has actually been deprived reasonable opportunities to visit with the child.

If not, then there is no case, because the threshold issue under the U.S. Supreme Court decision of Troxel v. Grandville is whether or not there are facts which demonstrate that the custodial parent is not acting in the child's best interests by depriving the grandparent of access to the child.

So, if the parent is not depriving the grandparent of access, then there is no way that the grandparent can overcome the constitutionally required presumption that a parent acts in his/her child's best interests, and therefore the Petition must be dismissed as failing to state as failing to state a claim for which relief may be granted.

In other words, neither the grandparent nor the child is yet harmed by any action by the parent, nor is there any imminent threat of injury. And without an injury or imminent threat thereof, there is no judiciable controversy, therefore the case must be dismissed, because courts cannot review hypothetical cases -- only real cases and controversies may be heard by the court.