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redone....sorry

Started by usayow, Jul 06, 2006, 07:32:46 PM

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usayow

Dear Socrateaser:

I know you are on vacation and Im sorry but Im desparate. Real quick we went to court on June 6, 2006 and judge gave me custody of my son based on mother didn't show up. My attorney showed proof of service on her by certified mail. Judge accepted.

Now last week she ran and got an attorney and said she was never served. Went to hearing yesterday and this judge reversed the order back to her because she testified she never got served because the certified copy was in the file off site. She said she never signed for a certified mail from our attorney nor did she authorize anyone to sign for her.

Judge believed her and reversed it. I got copy of the card and it had a mans signature on it. Called the post office and they gave me proof that SHE in fact did sign for the certified mail and the guy on the green card was her postman and marked it agent but had her persoanlly sign the paper for them.

One more question, we live in Indiana and accoring to my attorney I have first right of refusal and she's arguing that I do not and that she can give son to her family to keep and not me, our attorney said I have the next first right due to I am dad or my wife because she is next in line and one of us can keep him. We have had son since May 23, 2006 and she has only seen him 2 days in that time.


She has always gotten away with lying in court and winning by lying and now we have the proof on the certified mail she in fact signed for it.

1. Should we have our attorney file perjury charges against her based on this proof and thats all the judge had to go by was her word?

2. What do you think the judge can do about the order meaning can he or she reverse yesterdays decision?

3. WHat do you think they will do to her based on this?

4. Can we argue this that now she is trying to pull son from us because of this court thing?

Thanks for your help in this matter.

usayow

socrateaser

>1. Should we have our attorney file perjury charges against
>her based on this proof and thats all the judge had to go by
>was her word?

Perjury is a criminal charge. Your attorney will file for contempt based on grounds that the other party made a material false statement to the court.

As for whether you should do this, well, this presumes you can actually prove the contempt. Your facts state that you have a document from the post office showing that the letter was signed for by an agent rather than by the other parent. This document will be presumed correct, under the "original document rule," unless you subpoena the postal delivery person to court to testify that the document was inadvertantly marked wrong and that the letter was actually signed for by the other party. The certified receipt is evidence of a "legally operative fact" (delivery), and it will control, absent credible proof that it is incorrect (in which case, the error would lend weight to the possibility that something else is also not correct, which could destroy your proof).

It's not clear that delivery on the agent would not satisfy the proof of service requirements, but evidently the judge thinks that it doesn't and that's what matters.

>
>2. What do you think the judge can do about the order meaning
>can he or she reverse yesterdays decision?

If you can prove that the other party defrauded the court then the judge will reverse, otherwise not.

>3. WHat do you think they will do to her based on this?

Not enough facts -- but, so far, I'm not real encouraged by what you've posted, to believe that you will be able to prevail.

>4. Can we argue this that now she is trying to pull son from
>us because of this court thing?

Sure, but it's a different issue. What the other parent is trying to do substantively in the case has nothing to do with whether service was effective so as to begin the action. As of this moment, you've lost the issue, unless you can prove to the court's satisfaction that the other party lied, which will mean subpoenaing the postal delvery person to a contempt hearing.

usayow

Dear Socrateaser,

That's what the problem was.  When we went to court the second time in July we did not have the green certified copy.  It was in the file off site of the court grounds.

Her attorney requested it but it had not been brought up yet.  So her attorney said since we do not even have the card lets just ask the mom in this case if she ever received the mail or had anyone sign for it.  So the judge swore her in and based on her testimony alone she swore that she nor anyone she knoew ever received certified mail ordering her to appear.

Well the judge believed her and overturned the ruling from June.  This is when we did more investigating into it and in fact she did receive it and signed for it herself.  That was the proof I got to our attorney.  The postman signed the green card but she had in fact signed for the certified based on a signature from the post office.  

They use some type of scanning process of the signature and have it that her postman signed the green card but she signed their copy of proof or receipt.  So she was in fact served and had notice of hearing.

This is why we want to file something against her for perjury and file a motion to get him back to us based on she was served.

1.  Can't we use the other document we received from the post office against her based on them telling us it is a legal receipt and can be used in court?

2.  Do you think a judge will take into consideration her lying to get him back and transfer custody back to us?

I'm sorry it's just we are nervous about this.

Thanks
usayow  

socrateaser

>1.  Can't we use the other document we received from the post
>office against her based on them telling us it is a legal
>receipt and can be used in court?

If you have a document with her signature that would solve the problem. What you said earlier was that you had a form that was marked incorrectly. That's a completely different issue.

>
>2.  Do you think a judge will take into consideration her
>lying to get him back and transfer custody back to us?

If she is proven to have lied under oath, about being served, then she will spend a few nights in jail.

If you have her signature from the post office, then I would contact her or her attorney and show the proof and suggest that she stipulate to an order in your favor in exchange for your agreement to not file for contempt and a set aside of the court's prior order.

If she refuses to agree, she will probably lose custody and get some jail time. So, I can't imagine why she would refuse, unless she has "issues."