Child Abuse and Modifying Visitation

[medolyns]

I know I've asked about this a couple times, but I'm still trying to figure out the smoothest way of doing this.

The divorce decree and all court orders in this case were issued in a New York State court. I live in Colorado and have custody of the minor child. The order gives the NCP, currently living in New Hampshire, summer and holiday visitation three times a year, plus a never-used right to visitation in my area with reasonable notice.

Social Services in my county has issued a founded report of sexual abuse against the NCP--inappropriate touching--and recommended only supervised visitation pending treatment etc.

The abuse took place where NCP used to live in Massachusetts; the police have completed their criminal investigation, and the detective in charge has called and told me that the DA will leave it up to me whether or not to prosecute. According to her, I can call up the DA and say, "Go ahead, let's do it," any time before the seven-year statute of limitations runs out. A conviction would ruin NCP's career as a physician and imperil NCP's immigration status.

Social Services says they cannot (or will not) file a "Dependency and Neglect" petition to prevent NCP's unsupervised contact. It is unclear whether this is because NCP is not a Colorado resident or because the abuse took place out of state or because the child is safe with her CP, me. I have asked if this is because they don't consider the offense (fondling) serious enough--they have assured me it has nothing to do with the severity of the offense. They consider this a case that should be acted upon; they believe the child has to be protected.

Given the extremely high estimates I have been quoted so far (I live in a very rural area with few choices in family law attorneys) for domestication of my New York State case and modification of the order, I am considering going pro se--thus my earlier post.

The only purpose of domesticating my decree here would be this modification. I will probably not stay in Colorado over a year longer, and really would just as soon leave the case in NY.

But I wonder if there is an even easier alternative. NCP has declared at least twice--to the police and to an adult child--that she does not want to see the minor child any more. NCP spent a huge amount of money on the custody battle four or five years ago--firing one attorney who told her she had no choice but to settle and finding a firm willing to spend as much money as she would give them. She ended up hiring back the previous attorney to negotiate the post-trial agreement, which gave her less than she could have settled for. Although communication and relations have been bad since then, NCP has never gone back to court, and all evidence suggests she sees the legal arena as a place she can't win.

So I am thinking of writing a letter to NCP, suggesting that my attorney in NY write up a stipulated change in the visitation order, following the recommendations of Social Services. I would emphasize that I wouldn't like to see her go to jail or have career problems, but that the authorities will not accept her "I don't want to see her" as sufficient and the visitation order will have to be changed.

Knowing NCP, I think there is a decent chance of this appealing to her. It has to be a letter, because she will not let me get a word in edgewise on the phone. I will write in her native language, which she and I spoke together, so that it will seem more informal than previous letters I've written about issues that came in during visitation.


1) Can NCP and I stipulate such a change to the parenting plan, and can we file it with the court of the old state without changing jurisdiction?

2) Is there any possible harm in me writing such a letter to NCP? What are the possible dangers? May I eventually post the English draft for your comments?

[socrateaser]

>1) Can NCP and I stipulate such a change to the parenting
>plan, and can we file it with the court of the old state
>without changing jurisdiction?
>
>2) Is there any possible harm in me writing such a letter to
>NCP? What are the possible dangers? May I eventually post the
>English draft for your comments?

Let me suggest an entirely different tack. Suppose you simply refuse to permit visitation? The other parent cannot enforce the order in NY anymore, because neither parent lives there, so NY has lost jurisdiction. So, the other parent must domesticate the order in CO in order to enforce his visitation rights.

And, if that happens, then you can just call up the MA DA and say "File the charges." This will result in the parent's visitation being immediately, and probably permanently restrained -- and it will provide you with the required defense to the contempt of not wilfully disregarding the court orders, but rather acting to safeguard the child from a known pedophile.

However, if you tell the other parent in a letter that you will file criminal charges if the parent attempts to excersize visitation, then that would be criminal extortion on your part, so you don't want to write that letter.

The better move is to say nothing, and just refuse to permit the exercise of visitation.

Could you get your NY attorney to do a stip for the other parent's signature? Sure. But, if you try to hold your advantage over the parent's head, you will be in as much hot water with the authorities as the other parent. Also, your attorney cannot aid you in the commission of a crime, so if he/she knows what you're doing, he/she can't write the stip, and must withdraw from representing you (at least those are the ethical rules -- whether your attorney would dance around with them is unknown).

[medolyns]

Thanks very much for the response. It gives me a lot of food for thought, so I'll have to think it over--I know I'll have more questions later.

[medolyns]

Based on long experience with NCP and her relationships with family members including her children, my guess is that she will probably choose to ignore the child for several months or longer. She is not making phone contact currently, made no attempt to exercise Easter visitation, and will probably make no attempt to exercise summer 2006 visitation or, possibly, the next Thanksgiving and spring visitations.

However, she tends to re-initiate contact with ostracized family members (her mother, sister, sons) after a year or two or three. I think it very possible that she could simply call up in spring 2007 or 2008 and say that she'll be taking her summer visitation as it is in the court orders. She might wait even four or five years--the old court order would feel like a Sword of Damocles hanging over the child's head. (NCP has a long memory and will exact serious punishment the next time she has the child in her care unsupervised.)

By summer 2007 we will almost certainly no longer be living in this county (where the child abuse report was issued and where the therapist who first reported and who has been working with the child in the subsequent months lives) or even in CO. Obviously the report of founded child abuse gets older each year as well.

I also worry that we cannot depend upon the policy of the DA's office remaining exactly the same over the next seven years. (The child is nine and a half years old.)

1) Given this information and these considerations, does the strategy of waiting for NCP to try and exercise visitation seem risky?

2) Does this leave domestication and modification--done pro se or by a local attorney, but moving as quickly as possible--as the only sensible alternative?

[socrateaser]

After giving this some further thought, I think if I were representing you, I would call the other parent and state as follows:

"I am attorney for ____. My client has asked me to attempt to negotiate a stipulated agreement with you, limiting your access to your minor child ____, except under supervised visitation. My client has thus far refused to disclose the reason for this request, but has suggested to me that you would be amenable to it, as an alternative to a litigated resolution of the current circumstances.

Would you be interested in this solution?"

And, then just see what happens.