Continuance?

[janM]

We're in Ohio.

My exgf gave me custody in '02. We agreed to no CS and she said she'd give me money on her own, which she didn't. I filed for CS in early '03. The case is handled in juvenile court as part of the custody case.

A couple of contempt hearings later, they found her in contempt and gave her a month in jail, suspended, provided she start paying that month. Two weeks later they ordered her to a job find program. She started a job but didn't tell them. They caught up with her, she quit (always claiming illness).

Last spring she got a job and had her wages garnished 3 weeks before she quit again. Those were the only payments ever.

Last fall there was to be a hearing, she called in saying she had no way to get to court, but she was working so the asst. pros. atty. told me to let them know if payments stopped. I never got one cause she quit within the week.

Six weeks ago we went back to court to enforce the original jail sentence because of non payment and non notification of job status. She was given the address of the public defender, which I don't think she even applied for, as her husband makes too much money, and told to come back in 45 days. She was supposedly getting her medical records.

She told my mom a couple weeks later she had an atty but I don't know if it was true.

She told my gf last week that she was going to ask for a continuance so she could get an atty. She has had 6 weeks to do that. Hearing is this Thursday.

1. I know you don't read tea leaves, but do you think she'll get one? Hasn't she had adequate time to find a lawyer?

[socrateaser]

>>1. I know you don't read tea leaves, but do you think she'll
>>get one? Hasn't she had adequate time to find a lawyer?

She is entitled to legal counsel under the 6th Amendment. If I were judge, I would point to the first attorney who showed his/her head in courtroom while your gf was present and I'd appoint that person to represent her. Then I'd tell her that the hearing would be continued for 30 days and that if she shows up with anyone other than the appointed attorney, that the hearing would go forward without legal counsel, and that would be the end of the matter.

But, it's up the judge in your case, not me -- he/she could just as easily rule that enough time has been given, and now it's time for the trial.

Medical records, even records that strongly suggest mental illness, may not be sufficient to overcome the contempt, but the judge would be unlikely to try to interpret the records without the presence of a psychiatrist expert to explain them.

[janM]

LOL, I didn't mention that some of her records are psychiatric...they are, some are for physical complaints.

I doubt she can afford to get a dr in to testify. I hope the magistrate makes it go forward. There are only 15 minutes allotted for the hearing.

Thanks.

[janM]

Court sent me a notice today. She had filed with them for the continuance.

DENIED.

:)

[janM]

Court was this morning.

BM showed up without an attorney but with a stack of medical records.

There was a hearing officer from CSEA who testified as to the arrears, how much is supposed to be paid every month, how many payments have been made and for how much.

BM got on the stand and said she can't work because she can't stand or sit for too long, she is bipolar, she has multiple "conditions" etc, that her hubby can't pay the support for her because he has CS to pay for his son etc. (he shouldn't have to), that she applied for SS/disability or whatever, they said she was disabled but hubby makes too much.

The assistance prosecutor said she'd need a continuance to go over all the records and told BM twice that she had asked for doctor's notes several times over the years and they weren't sent.

So, we go back in about a month.

1. Could the atty subpoena BM's doctors to verify/interpret the records?

2. If it can be proved that BM cannot work due to whatever illnesses she has, but cannot get assistance, what then? Who will pay the support? Is she off the hook?

[socrateaser]

>1. Could the atty subpoena BM's doctors to verify/interpret
>the records?

Yes, if the defendant put her medical history at issue by testifying, then the state can test the evidence and seek to impeach it. She should not have testified, because she has now waived her 5th Amendment privilege against self-incrimination. Bad move.

>2. If it can be proved that BM cannot work due to whatever
>illnesses she has, but cannot get assistance, what then? Who
>will pay the support? Is she off the hook?

Inability to pay (due to physical/mental illness) is an affirmative defense to not paying support. However, the BM's absence of an expert witness to explain the medical records is actually grounds for them all being excluded as inadmissible hearsay.

The public prosecutor is giving the defendant a HUGE break that is not justified, and which in my opinion violates the ethical duty to zealously represent the government's interest.

Anyway, the answer is that if the DA fails to effectively challenge the reports, and the judge allows them into evidence, then it's possible that the parent will not have to pay support.

However, if the DA does his/her job, the mother is headed for either jail or community service -- neither of which will get you any money, unless mother has assets that can be seized and sold. If so, then the court could order sanctions in your favor and you could end up getting money from the other parent's new spouse (I think you mentioned that there was a new spouse).

This outcome is a very very rare event, but it does occasionally happen, and it's why I generally advise that people with kids, and who pay support for those kids, shouldn't remarry until their support obligations are all terminated.

[janM]

Court was this morning.

BM showed up without an attorney but with a stack of medical records.

There was a hearing officer from CSEA who testified as to the arrears, how much is supposed to be paid every month, how many payments have been made and for how much.

BM got on the stand and said she can't work because she can't stand or sit for too long, she is bipolar, she has multiple "conditions" etc, that her hubby can't pay the support for her because he has CS to pay for his son etc. (he shouldn't have to), that she applied for SS/disability or whatever, they said she was disabled but hubby makes too much.

The assistance prosecutor said she'd need a continuance to go over all the records and told BM twice that she had asked for doctor's notes several times over the years and they weren't sent.

So, we go back in about a month.

1. Could the atty subpoena BM's doctors to verify/interpret the records?

2. If it can be proved that BM cannot work due to whatever illnesses she has, but cannot get assistance, what then? Who will pay the support? Is she off the hook?

[socrateaser]

>1. Could the atty subpoena BM's doctors to verify/interpret
>the records?

Yes, if the defendant put her medical history at issue by testifying, then the state can test the evidence and seek to impeach it. She should not have testified, because she has now waived her 5th Amendment privilege against self-incrimination. Bad move.

>2. If it can be proved that BM cannot work due to whatever
>illnesses she has, but cannot get assistance, what then? Who
>will pay the support? Is she off the hook?

Inability to pay (due to physical/mental illness) is an affirmative defense to not paying support. However, the BM's absence of an expert witness to explain the medical records is actually grounds for them all being excluded as inadmissible hearsay.

The public prosecutor is giving the defendant a HUGE break that is not justified, and which in my opinion violates the ethical duty to zealously represent the government's interest.

Anyway, the answer is that if the DA fails to effectively challenge the reports, and the judge allows them into evidence, then it's possible that the parent will not have to pay support.

However, if the DA does his/her job, the mother is headed for either jail or community service -- neither of which will get you any money, unless mother has assets that can be seized and sold. If so, then the court could order sanctions in your favor and you could end up getting money from the other parent's new spouse (I think you mentioned that there was a new spouse).

This outcome is a very very rare event, but it does occasionally happen, and it's why I generally advise that people with kids, and who pay support for those kids, shouldn't remarry until their support obligations are all terminated.

[janM]

Yes, she is married, and he apparently had excellent credit before they married. Now they have lost the trailer he owned, and I think the only thing they own is his truck. They filed backruptcy a couple years ago. They live with a friend. DH makes good money but pays support for his child.

Yet she cried to the court that they could not afford an attorney, and dh can't pay the support himself, they have a hard time keeping a roof over their heads (?) for their kids (she has custody of neither one, my son or their daughter together, she's with dh's parents).

Sigh.

Thanks for the reply.

[janM]

BM was again without an attorney.

After she gave her "reasons" for not working, the assistant prosecuting atty challenged her medical records, one or two of which had black marker through some of the text. BM claimed the doctor did it. Atty had her hold it up to the light, where you could make it out, but apparently BM's eyes weren't good enough to read it.

It was brought up that a (former) friend had given or loaned BM $4000 for child support. She had called the atty to ask if it was legit and found out the money was not paid to CSEA. She wouldn't give her name and wouldn't testify but we know who it was.

Atty also brought up BM's many ER visits and the times she was refused drugs and that she "doctor-hopped" to get them. And when BM pointed out her application for SS on the stack of papers, atty said, Yes, they prove that your husband takes home a good amount of money, you have no bills in your name, and no children in the home.

In the end, the magistrate found that though she may have medical or mental issues, she had no proof that she couldn't work, and said that she has had too many chances, and he imposed the original 30 day jail sentence.

It only took 2 years since she was found in contempt.