Motion to Clarify/Child's Passport/Recording law

[416021va]

Soc, I sincerely hope that you are enjoying your vacation and don't dare to answer this post until you are done.

I am just writing this up because it is fresh on my mind and my memory is poor.

I just filed a motion to clarify my child's existing visitation with me in Virginia. The child lives in Florida. You might think it's petty, but the other parent always finds a loophole.

After doing some reading, I figured it would be best that I motion the court that I be responsible for the child's travel to Virginia and the other parent be responsible for the child's return.

I think I made a big mistake. The other parent may say OK, come and get him to the airport, so that he can see you.

The child generally flies as an unaccompanied minor.

I think I should have done it the other way.

Additionally, the CP has ignored a copy of the certified mail that I sent which contained a copy of the motion to clarify.

The certified mail also contained an amicable request to try and work out the passport issue before I file a motion to try and obtain it for a vacation to the UK.

I figure that the CP ignoring my certified mail could work in my favor.

Finally, the CP is sending me emails telling me that recording them is illegal. (Remember the CP stated in writing that they would be recording me?) I would at least like some law to protect myself as the other parent will be calling the police soon.



My questions are as follows:

1) Can the CP now deny taking our child to the airport because I stated that I was responsible for pickups?

2) Would the CP ignoring my certified mail work in my favor?

3) Could you please provide some law that shows that I can record the other parent since they stated they would be recording me?

4) If I keep filing motions to clarify with the court, will this work against me?

Thanks Soc.

[socrateaser]

>My questions are as follows:
>
>1) Can the CP now deny taking our child to the airport because
>I stated that I was responsible for pickups?

Assuming you win your motion, you write the final order to ensure that the other parent must take the child to the airport, and reasonably facilitate transfer. And, you can do the same thing to the other parent on return, i.e., "Kid's here -- come and get him/her."

This is not the way things should be done, but if you both want to fight over trivia, then it's within your discretion to do so.

>
>2) Would the CP ignoring my certified mail work in my favor?

To prove what?

>
>3) Could you please provide some law that shows that I can
>record the other parent since they stated they would be
>recording me?

If you have written correspondence signed by the other parent stating that they are recording you, then they are impliedly consenting to your recording them. The legal magic words are "reasonable expectation of privacy." As soon as one party states that they are impairing the other party's reasonable expectation of privacy, then the expectation of privacy is no longer reasonable, therefore anyone can record or overhear it.

If you don't have written correspondence signed by the other parent, then you have no proof that they will record, and the judge will find a reasonable expectatin of privacy, which means you can't record, unless you notify the other party of your intent to do so.

Federal law is actually one party, and you could argue that under the "dormant commerce clause," of the U.S. Constitution, a state law that restricts your right to record under federal law, impairs interstate commerce and should be found unconstitutional as applied.

Unfortunately, while this would likely protect you from a criminal violation of FL law, because the State would be charging you with a crime for something you are legally entitled to do under federal law, the FL court could refuse to admit the recording as evidence in FL, on grounds that a family law action does not "implicate interestate commerce, and therefore the Federal Commerce Clause is inapplicable to FL evidence law.

>4) If I keep filing motions to clarify with the court, will
>this work against me?

Yes. The judge will find that you are wasting the court's valuable time, and sanction you for it, or simply deny your motions, on some collateral ground so as to brush you aside (which isn't legal, but it happens if the judge gets annoyed enough).

>
>Thanks Soc.
>

[416021va]

OK Soc, I am glad that you got some vacation time in. Thanks for taking the time to answer my questions.

I have some clarification on the questions that I asked you and some new questions.

As far as my question, "Would the CP ignoring my certified mail work in my favor?"

I wanted to know if the other parent's ignoring my recently filed motion to clarify would work in my favor or against me.

What I meant is:

I wanted to know if the other parent can turn around to say that they weren't aware of my motion and delay the motion being granted. (The rules for a motion in Florida state that I affirm that the other party has been sent a copy of this writing and gave me choices, mail, fax, etc.)

I also wanted to know if the other parents ignorance of my motion could help in that the judge is more likely grant it because the other parent effectively said nothing about it by ignoring it.

I didn't know that I write the final order/or could right the final order.

I thought that the judge looks at the motion to clarify and either grants or denies it.

Finally, after filing my motion with the clerk of court, the clerk returned my self addressed stamp envelope that I provided the court for the other parent to me unused, but kept mine. I want to know if that means that the other parent is not supposed to have a copy of the judge's decision to grant or deny my motion.

My questions based on this as follows:

1) Can the other parent turn around and say that they did not receive my motion via certified mail (since they chose not to accept my certified mail) effectively "ungranting" the motion after it has been granted?

2) Could the fact that the other parent chose to ignore my certified mail increase the chance that the judge would grant my motion, because the other party had no knowledge of the motion and could not oppose it?

3) I didn't know that I could write the final order, I thought that the judge "ordered" based on his granting or denial of my motion.  Could you please explain how that works, and if there is anything special that I would need to do to "put myself in a position" to write the final order?

4) Any thoughts on why the clerk would return my SASE for the other parent?

Thanks Soc!

[socrateaser]

>My questions based on this as follows:
>
>1) Can the other parent turn around and say that they did not
>receive my motion via certified mail (since they chose not to
>accept my certified mail) effectively "ungranting" the motion
>after it has been granted?

If this new motion is after judgment or post-judgment motion and final order, then you must usually effect personal service to provide adequate notice of a new legal action pending in the case.

But, it's a narrow question of FL law, so I don't know for sure.

>
>2) Could the fact that the other parent chose to ignore my
>certified mail increase the chance that the judge would grant
>my motion, because the other party had no knowledge of the
>motion and could not oppose it?

Doubtful.

>
>3) I didn't know that I could write the final order, I thought
>that the judge "ordered" based on his granting or denial of my
>motion.  Could you please explain how that works, and if there
>is anything special that I would need to do to "put myself in
>a position" to write the final order?

Unless a case is particularly noteworthy or receives media attention, the court generally orders the prevailing party to prepare a final order in accordance with the court's "minute" orders issued from the bench (i.e., orally at the hearing). You can get a copy of the minute order as typed by the clerk during the hearing. It's just notes of what the judge orders, without formal legal language.

>4) Any thoughts on why the clerk would return my SASE for the
>other parent?

The court clerk will not mail documents on your behalf. The court clerk will only mail copies of documents back to you. Then, you must serve them on the other party.

[416021va]

Soc, thanks for answering, now a few more questions.

I got the impression that sending the other party a certified mail would be more than enough.

This is where I got that impression:

http://www.jud6.org/RepresentingYourself/Commonly%20asked%20for/Motion%20to%20or%20for%20local%20form.pdf

I also noticed that I screwed up when I affirmed on my motion that I sent a copy of said motion to the other party.

The address that I specified was the other parent's correct street address, but I accidentally specified my own city, state, and zip.

(In reality I did send a copy to the other parent's correct address).

My questions are as follows:

1) From the above URL don't you get the impression that sending the CP a copy of my motion was enough?

2) If my motion "slips through the cracks" and the judge grants it, would this not eventually make the order "null and void" because I didn't serve it on CP in the first place, and only sent it via certified mail?

3) Do you think that the mistakes I have made are serious enough for me to voluntarily dismiss my motion?

Thank you for your help Soc.

[socrateaser]

>My questions are as follows:
>
>1) From the above URL don't you get the impression that
>sending the CP a copy of my motion was enough?

I don't get "impressions" about what is enough. This is legal process and when it comes to service of process, it must be exactly what the jurisdiction requires by statute and case law. Absent specific statute to the contrary, you must serve the other party PERSONALLY, via a process server or the sheriff, and proof of timely service must be filed with the court, prior to the hearing.

Certified mail is generally not sufficient.

>2) If my motion "slips through the cracks" and the judge
>grants it, would this not eventually make the order "null and
>void" because I didn't serve it on CP in the first place, and
>only sent it via certified mail?

No, if the other party appears at the hearing or responds to the motion by filing a pleading, that is an implied acknowledgement of actual notice of the legal action, which is sufficient.

>3) Do you think that the mistakes I have made are serious
>enough for me to voluntarily dismiss my motion?

You can withdraw/voluntarily dismiss your motion, if the other party hasn't responded yet. After they respond, you generally need the other party's or the court's to dismiss the action.

You really need to stop making mistakes. The court will get annoyed and you will get nowhere.

[416021va]

Ok Soc, I understand and respect all that you have said. I don't want to beat this to death, but I am not clear on the need to voluntarily dismiss my motion to be effective. I am tempted to wait and see what happens.

Based on a reasonable probability that this motion would still be signed by the judge, my new questions are as follows:

1) What ultimately happens to the validity of my motion & order if the other party doesn't respond to the motion (for whatever reason, up to and including my certified mail "potentially" not being enough) even after I proceed to have the order served upon them?

2) If the judge grants my motion, and I serve a copy of the order on the other parent, does that in itself retroactively constitute service of the motion or supercede the potential relevance of my not serving the  initial motion on the other parent (if the need to serve this motion was applicable in the first place)?

3) If personal service was in fact required for this motion, but the other parent does nothing at all, does the possibility exist that my order could eventually go on to be effective if signed by a judge?


Thanks Soc

[socrateaser]

>Based on a reasonable probability that this motion would still
>be signed by the judge, my new questions are as follows:
>
>1) What ultimately happens to the validity of my motion &
>order if the other party doesn't respond to the motion (for
>whatever reason, up to and including my certified mail
>"potentially" not being enough) even after I proceed to have
>the order served upon them?

You could get your motion ordered, and then the other party could have it set aside and a new hearing set, on grounds that service was improper.

>
>2) If the judge grants my motion, and I serve a copy of the
>order on the other parent, does that in itself retroactively
>constitute service of the motion or supercede the potential
>relevance of my not serving the  initial motion on the other
>parent (if the need to serve this motion was applicable in the
>first place)?

No. The judge cannot grant your motion absent effective service. Also, try to avoid legalistic writing unless you know exactly what you're talking about in the legal sense. Your question is written in the sort of legal sounding language that, when combined with your misunderstanding of the underlying law, will annoy the judge and backfire on you.

>
>3) If personal service was in fact required for this motion,
>but the other parent does nothing at all, does the possibility
>exist that my order could eventually go on to be effective if
>signed by a judge?

If personal service is required, and you didn't personally serve, the judge will either deny your motion, or set a new hearing date, pending your personal service on the other party and subsequent filing of proof of personal service.

[416021va]

Thanks Soc, I will bring this thread back up to the top pending what the judge does.

I will try not to annoy the judge with legal wording.

[416021va]

Ok, I just found out from the Clerk of Court that sending a certified mail was proper service of my motion to clarify in their jurisdiction.

I was told that the judge always returns an order on a motion that he grants and that I would not have to create one myself.

Clerk also told me that the judge rarely takes the other parties physical address into consideration.

I was also told that I could amend my motion to clarify with the court and that if sent to her attention she agreed to waive the fee for a new amended motion, but suggest that I may want to let this one slide and see what happens and file an amended motion to clarify at no cost if the judge denies my motion for affirming an incorrect physical address for the other parent.

If I go the "amended" route, I am thinking of a combined motion to amend my motion to clarify and a motion to obtain the child's passport.

My questions are as follows:

1) If the judge grants an order would it still be enforceable if the judge doesn't notice the mistake and grants the petition/order, and ends up sending the order to the other parties wrong address?

2) Could I combine an amended motion to clarify along with my motion to take the child out of the country during vacations and obtain his US passport? Wouldn't this just be plain ol' "bad timing"?

3) Couldn't the other parent come back "real easy" if I don't amend and say that I affirmed the wrong address on the motion, even though I have proof that they ignored the certified mail? It seems like this gives the other parent an absolute defense.

4) If I elect to use an amended motion to clarify, couldn't I use this opportunity to strengthen my present motion with new facts e.g. CP ignored certified mail that contained initial motion?


I think we are close to solving this issue.

Thanks Soc!!