Custody fight

[krissy2356]

Hi Soc--

In PA.

I have shared legal custody of my 4-year-old son with his mother as the CP. My son is with me 2-3 overnights per week (all day and night Tues., Thu. night, and e/o Sunday all day and night) and has been since an order was entered as agreed upon by my son's mother and I in January. A month after we came to an agreement on CS and custody, she filed first for a modification of support claiming that she was injured in a car accident and had her hours cut.

A few days later, my son was taking a nap and I ran in to work for about an hour and a half, leaving him in the care of my wife. My son's mother often knows where I am and what my movements are during my visitation (I guess she must ride past the house?), and she immediately called my cell after I left and demanded to know where I was going and why I wasn't with my son. When I refused to disclose anything to her other than our son was taking a nap in his bed, she called my place of employment and threatened my manager and a receptionist, telling them that she'd sue if they didn't disclose my whereabouts, which they didn't.

The next day, she filed a motion for contempt citing about 11 different issues, ranging from accusations that I don't bathe my son (we give him a bath EVERY night he is with us) to charges of me not allowing communications b/w he and his mother while he's with me. I always encourage that she call at bedtime, but I did discourage the afternoon phone call as I felt it was disruptive to my son, confusing to him, and somewhat extreme as CP would not only call for a quick hello, but demand that I tell her what we were doing and call back incessantly to speak to my son until she felt that the conversation was satisfactory to her.

My son's daycare teacher--at the facility where I drop my son after every visitation--denied the allegations about my son not being properly cared for and denied that he is having any problems with his social or developmental skills because of being with me. However, because my son's daycare is in the church that CP goes to, and where her husband preaches, the teacher would not come to court and speak against them. We had her subpoenad for the contempt hearing and she ignored it, claiming that she was not served with enough notice and that the subpoena was not valid (she was subpoenad on a Friday morning for a Monday hearing).

In the interim, CP began resorting back to her old tricks (before the order) of manipulating the schedule. CO states that she must be at the drop off point at 7:30 am on Tuesday (her choice of time) but she decided that she can't get up that early so she was arriving at 7:45. I didn't have a choice since she wasn't asking my permission, but to be honest, it didn't matter much to me, as it was only 15 minutes and I didn't argur. However, shortly after she changed the time, my wife returned to work and she needed to leave the house by 7:45. Since this was in winter I didn't want to take our daughter (not my bio but treated as such) who was a baby then with immune system issues related to prematurity, outside which I could've avoided had I pick my son up at the CO time of 7:30, getting me home by 7:45 and allowing my wife to leave for work in time.

I told CP that I needed her to follow the 7:30 time, and she refused claiming that I agreed to 7:45 and couldn't now change my mind. Anyway, she has been showing up at 7:45 ever since, which was about 5 months ago.

A huge issue is that of who is allowed to pick my son up at exchanges. I work in sales and my salary is solely based on commission, so if a customer comes in on Thursday night before I have to get my son, while I make every effort to either pass off the customer to someone else or wrap it up quickly, I am sometimes leaving work late, getting me to the pick up between 20-30 minutes late. I admit that this happens maybe once every five or six weeks. Each and every time this has occured, my wife has always been able to pick up my son, but CP refuses to allow this. My wife has been at the pick up place and she's seen CP drive in, see that it's my wife and not me, and turn around and leave.

There have been times that I call and ask that my wife be able to pick my son up, to have the CP tell me that it's no problem if I am late since she is busy, then refuse to answer the phone when I arrive at the exchange when she asks and she's not there. CP states that I am the only person that she will allow to get my son, although our CO doesn't say it must be me that does the picking up/dropping off. My lawyer has advised me that she is in contempt by not allowing my wife to pick my son up as I miss the visitation for the night because of this.

CO states that CP and I each get 14 days of vacation time over the year, but does not state anything about advance notice. Three times I have tried to take my son for vacation, giving her from 4-7 days notice each time, and she has refused every time claiming that she needs more notice. Yet she will send me an e-mail three days before my visitation and claim that she needs to use my night as a vacation day to spend time with our son "in town."

For these and other reason, such as CP refusing to speak me at all about anything re: my son even though I have made every attempt to try and open the communication lines and because my son is spending what I feel is too much time in church when he could be with me (3-4 nights and all days on CP's Sunday), not to mention that she has spoken ill of me in front of my son in my presence and will not allow him to use my last name which is his legal name, I wanted to file for joint physical at the least. My lawyer advised that based on the issues and CP's efforts to thwart my time with my son, I should file for primary custody, in the hopes that I will at least get joint (shoot for the moon, end up among the stars approach).

Anyway, the hearing for the contempt motion resulted in the judge agreeing with my attorney and throwing out the motion, saying that we could deal with it at the custody hearing. CP had about 6 people from the church with her to tesify at the hearing. I have no idea what they would've said. My wife and I take exceptional care of my son and have nothing to hide. We are both new to this area, don't go to church, don't have much family besides my wife's parents and sister to speak for us. We are very concerned that we will lose in court if these people are willing to lie for CP and her husband, with whom they are very close.

I found out when I tried to make my son a dr. appt. for next week, as I am concerned about his hearing (ears), that CP already made one--she was in last month getting him a hearing test and next week is the follow-up. I asked her why she never told me any of this and she said that I never expressed interest. I have documentd that I asked her about the frequent ear infections in the spring, and that she agreed to keep me up to date re: this. I also found out that she had him tested for Lyme Disease. I had to drag that out of her since I only knew by checking the insurance claims.

Just 2 weeks ago I told her that it's been a while since we've talked about my son and that we need to communicate...she told me that nothing was going on and that she did not want to speak to me. Then she hung up on me while I was still talking.

Any advice? Should I be filing for contempt re: CP not allowing my wife to pick up, denial of vacation time, etc., or should I just bide my time and keep all of this for the hearing in September? I have been trying to be as active with my son as possible, although his daycare isn't very good about communicating given the situation.

Do I have a chance here? Can I use the nasty e-mails in which she accuses my lawyer of slandering me and tries to advise my wife of my past sexual relationships? Where she is rude and hostile? Thanks a ton!

[socrateaser]

>Hi Soc--
>
>In PA.
>
>I have shared legal custody of my 4-year-old son with his
>mother as the CP. My son is with me 2-3 overnights per week
>(all day and night Tues., Thu. night, and e/o Sunday all day
>and night) and has been since an order was entered as agreed
>upon by my son's mother and I in January. A month after we
>came to an agreement on CS and custody, she filed first for a
>modification of support claiming that she was injured in a car
>accident and had her hours cut.
>
>A few days later, my son was taking a nap and I ran in to work
>for about an hour and a half, leaving him in the care of my
>wife. My son's mother often knows where I am and what my
>movements are during my visitation (I guess she must ride past
>the house?), and she immediately called my cell after I left
>and demanded to know where I was going and why I wasn't with
>my son. When I refused to disclose anything to her other than
>our son was taking a nap in his bed, she called my place of
>employment and threatened my manager and a receptionist,
>telling them that she'd sue if they didn't disclose my
>whereabouts, which they didn't.
>
>The next day, she filed a motion for contempt citing about 11
>different issues, ranging from accusations that I don't bathe
>my son (we give him a bath EVERY night he is with us) to
>charges of me not allowing communications b/w he and his
>mother while he's with me. I always encourage that she call at
>bedtime, but I did discourage the afternoon phone call as I
>felt it was disruptive to my son, confusing to him, and
>somewhat extreme as CP would not only call for a quick hello,
>but demand that I tell her what we were doing and call back
>incessantly to speak to my son until she felt that the
>conversation was satisfactory to her.
>
>My son's daycare teacher--at the facility where I drop my son
>after every visitation--denied the allegations about my son
>not being properly cared for and denied that he is having any
>problems with his social or developmental skills because of
>being with me. However, because my son's daycare is in the
>church that CP goes to, and where her husband preaches, the
>teacher would not come to court and speak against them. We had
>her subpoenad for the contempt hearing and she ignored it,
>claiming that she was not served with enough notice and that
>the subpoena was not valid (she was subpoenad on a Friday
>morning for a Monday hearing).
>
>In the interim, CP began resorting back to her old tricks
>(before the order) of manipulating the schedule. CO states
>that she must be at the drop off point at 7:30 am on Tuesday
>(her choice of time) but she decided that she can't get up
>that early so she was arriving at 7:45. I didn't have a choice
>since she wasn't asking my permission, but to be honest, it
>didn't matter much to me, as it was only 15 minutes and I
>didn't argur. However, shortly after she changed the time, my
>wife returned to work and she needed to leave the house by
>7:45. Since this was in winter I didn't want to take our
>daughter (not my bio but treated as such) who was a baby then
>with immune system issues related to prematurity, outside
>which I could've avoided had I pick my son up at the CO time
>of 7:30, getting me home by 7:45 and allowing my wife to leave
>for work in time.
>
>I told CP that I needed her to follow the 7:30 time, and she
>refused claiming that I agreed to 7:45 and couldn't now change
>my mind. Anyway, she has been showing up at 7:45 ever since,
>which was about 5 months ago.
>
>A huge issue is that of who is allowed to pick my son up at
>exchanges. I work in sales and my salary is solely based on
>commission, so if a customer comes in on Thursday night before
>I have to get my son, while I make every effort to either pass
>off the customer to someone else or wrap it up quickly, I am
>sometimes leaving work late, getting me to the pick up between
>20-30 minutes late. I admit that this happens maybe once every
>five or six weeks. Each and every time this has occured, my
>wife has always been able to pick up my son, but CP refuses to
>allow this. My wife has been at the pick up place and she's
>seen CP drive in, see that it's my wife and not me, and turn
>around and leave.
>
>There have been times that I call and ask that my wife be able
>to pick my son up, to have the CP tell me that it's no problem
>if I am late since she is busy, then refuse to answer the
>phone when I arrive at the exchange when she asks and she's
>not there. CP states that I am the only person that she will
>allow to get my son, although our CO doesn't say it must be me
>that does the picking up/dropping off. My lawyer has advised
>me that she is in contempt by not allowing my wife to pick my
>son up as I miss the visitation for the night because of this.
>
>
>CO states that CP and I each get 14 days of vacation time over
>the year, but does not state anything about advance notice.
>Three times I have tried to take my son for vacation, giving
>her from 4-7 days notice each time, and she has refused every
>time claiming that she needs more notice. Yet she will send me
>an e-mail three days before my visitation and claim that she
>needs to use my night as a vacation day to spend time with our
>son "in town."
>
>For these and other reason, such as CP refusing to speak me at
>all about anything re: my son even though I have made every
>attempt to try and open the communication lines and because my
>son is spending what I feel is too much time in church when he
>could be with me (3-4 nights and all days on CP's Sunday), not
>to mention that she has spoken ill of me in front of my son in
>my presence and will not allow him to use my last name which
>is his legal name, I wanted to file for joint physical at the
>least. My lawyer advised that based on the issues and CP's
>efforts to thwart my time with my son, I should file for
>primary custody, in the hopes that I will at least get joint
>(shoot for the moon, end up among the stars approach).
>
>Anyway, the hearing for the contempt motion resulted in the
>judge agreeing with my attorney and throwing out the motion,
>saying that we could deal with it at the custody hearing. CP
>had about 6 people from the church with her to tesify at the
>hearing. I have no idea what they would've said. My wife and I
>take exceptional care of my son and have nothing to hide. We
>are both new to this area, don't go to church, don't have much
>family besides my wife's parents and sister to speak for us.
>We are very concerned that we will lose in court if these
>people are willing to lie for CP and her husband, with whom
>they are very close.
>
>I found out when I tried to make my son a dr. appt. for next
>week, as I am concerned about his hearing (ears), that CP
>already made one--she was in last month getting him a hearing
>test and next week is the follow-up. I asked her why she never
>told me any of this and she said that I never expressed
>interest. I have documentd that I asked her about the frequent
>ear infections in the spring, and that she agreed to keep me
>up to date re: this. I also found out that she had him tested
>for Lyme Disease. I had to drag that out of her since I only
>knew by checking the insurance claims.
>
>Just 2 weeks ago I told her that it's been a while since we've
>talked about my son and that we need to communicate...she told
>me that nothing was going on and that she did not want to
>speak to me. Then she hung up on me while I was still
>talking.
>
>Any advice? Should I be filing for contempt re: CP not
>allowing my wife to pick up, denial of vacation time, etc., or
>should I just bide my time and keep all of this for the
>hearing in September? I have been trying to be as active with
>my son as possible, although his daycare isn't very good about
>communicating given the situation.
>
>Do I have a chance here? Can I use the nasty e-mails in which
>she accuses my lawyer of slandering me and tries to advise my
>wife of my past sexual relationships? Where she is rude and
>hostile? Thanks a ton!

Contempt is a waste of resources. You'll never prove it beyond reasonable doubt on your facts. What I would do is simply put together all of the issues that are frustrating the smooth exercise of joint custody and then ask the court to clarify them.

The issue of you delegating your authority to your spouse to pickup the child is simple. You have joint custody power, not merely a license to visit your child, therefore you have the authority to delegate your power to your spouse, and the court will instruct the other parent that she is incorrect in withholding the child.

As for filing for sole custody, I think it's a waste of time and money. You want to go to court with the desire that the other parent be as involved as yourself in the child's life and that you are only interested in the child's welfare. Then if the other parent starts to blast you, you remain calm and the court will see that the other parent is the problem and you will prevail. If anything, the court would be more likely to give you sole custody after it sees the other parent blow up in court a few times -- so I think any action in this area is extremely premature.

[krissy2356]

Thanks so much for your response. A few more quick ones:

"The issue of you delegating your authority to your spouse to pickup the child is simple. You have joint custody power, not merely a license to visit your child, therefore you have the authority to delegate your power to your spouse, and the court will instruct the other parent that she is incorrect in withholding the child."

Okay. CP says that as I have joint legal but not joint physical that I have no authority to do this, but since she has primary physical, that she can authorize anyone she wants to drop my son to me. She's wrong, I guess? Is is the joint legal that gives me the power to delegate to my wife?

"As for filing for sole custody, I think it's a waste of time and money. You want to go to court with the desire that the other parent be as involved as yourself in the child's life and that you are only interested in the child's welfare. Then if the other parent starts to blast you, you remain calm and the court will see that the other parent is the problem and you will prevail. If anything, the court would be more likely to give you sole custody after it sees the other parent blow up in court a few times -- so I think any action in this area is extremely premature."

Is there a way to modify the existing petition for primary custody? If I drop the entire request and the hearing is cancelled, I know that she will file for a modification to the current schedule to take away all but one overnight per week--this is what her lawyer told our lawyer. I would prefer to go in asking for joint and have her explain why we shouldn't get it rather than have to defend against her request to remove the time I have now. To be honest, I asked my attorney to file for joint, and he filed for primary without consulting me. When I called to ask him what happened, he told me it was better to ask for more than I wanted so there would be room to negotiate. Do you think that he's just hoping to avoid arguing anything in favor of having CP and her attorney agree to negotiate down to joint?

Thanks!

[socrateaser]

>Okay. CP says that as I have joint legal but not joint
>physical that I have no authority to do this, but since she
>has primary physical, that she can authorize anyone she wants
>to drop my son to me. She's wrong, I guess? Is is the joint
>legal that gives me the power to delegate to my wife?

Does the order grant her sole "physical" custody? If so, she's right, if not she's wrong.

>
>"As for filing for sole custody, I think it's a waste of time
>and money. You want to go to court with the desire that the
>other parent be as involved as yourself in the child's life
>and that you are only interested in the child's welfare. Then
>if the other parent starts to blast you, you remain calm and
>the court will see that the other parent is the problem and
>you will prevail. If anything, the court would be more likely
>to give you sole custody after it sees the other parent blow
>up in court a few times -- so I think any action in this area
>is extremely premature."
>
>Is there a way to modify the existing petition for primary
>custody? If I drop the entire request and the hearing is
>cancelled, I know that she will file for a modification to the
>current schedule to take away all but one overnight per
>week--this is what her lawyer told our lawyer. I would prefer
>to go in asking for joint and have her explain why we
>shouldn't get it rather than have to defend against her
>request to remove the time I have now. To be honest, I asked
>my attorney to file for joint, and he filed for primary
>without consulting me. When I called to ask him what happened,
>he told me it was better to ask for more than I wanted so
>there would be room to negotiate. Do you think that he's just
>hoping to avoid arguing anything in favor of having CP and her
>attorney agree to negotiate down to joint?

Most of the time, there's little to be gained by moving for a specific custody change. It's better to simply request a modification of the parenting time, because obtaining a new custody hearing requires clear and convincing proof (>75%), while moving to change parenting time requires only a preponderance of evidence (>50%).

I think your attorney's doing ok. I don't see any reason to not go with his/her tactics.

[krissy2356]

>Does the order grant her sole "physical" custody? If so, she's
>right, if not she's wrong.

The exact wording:

Legal custody awarded to: JOINT
Physical custody awarded to: MOTHER, with partial physical custody to FATHER, as follows...yadayada. I know that sole and primary are not the same, but in this case, is it splitting hairs? Is she right that I cannot have my wife do pick-ups?

>Most of the time, there's little to be gained by moving for a
>specific custody change. It's better to simply request a
>modification of the parenting time, because obtaining a new
>custody hearing requires clear and convincing proof (>75%),
>while moving to change parenting time requires only a
>preponderance of evidence (>50%).

>I think your attorney's doing ok. I don't see any reason to
>not go with his/her tactics.

I hope so. The "short" hearing this past Monday was cancelled, as CP showed with a few witnesses and my attorney protested because the witnesses were not supposed to be present until the extended hearing, so I had no one with me per my attorney's advisement. The judge ordered that we would do everything at the extended hearing in September.

[socrateaser]

>>Does the order grant her sole "physical" custody? If so,
>she's
>>right, if not she's wrong.
>
>The exact wording:
>
>Legal custody awarded to: JOINT
>Physical custody awarded to: MOTHER, with partial physical
>custody to FATHER, as follows...yadayada. I know that sole and
>primary are not the same, but in this case, is it splitting
>hairs? Is she right that I cannot have my wife do pick-ups?
>
Nope, she's wrong. You are not visiting, according to these orders. You are exercising partial physical custody, which means that you can delegate your authority to someone else during your time.

If the order said "visitation to father as follows:" then you would have only a personal license to visit, which is non-delegable. But, that's not what it says, so you can send who you wish and you can enforce it with a contempt.

That having been said, if during the "yadayada" part, the order suddenly starts using the word "visitation," then she may have an argument, because at that point the order becomes ambiguous and badly written.

But, no law enforcement officer will attempt to interpret the inconsistency, and the only person who can clarify the order would be the judge. Meanwhile, you can send anyone you want, and she can refuse to permit that anyone to pick up the child.

But, if "visitation" does not appear in the order, then you are on completely solid ground and she is in contempt by not transferring the child during the required parenting times.

[krissy2356]

"That having been said, if during the "yadayada" part, the order suddenly starts using the word "visitation," then she may have an argument, because at that point the order becomes ambiguous and badly written."

The wording is "...with partial physical custody to FATHER, as follows--A. Weekends beginning Sunday from blah to blah...B. Weekdays beginning Tues blah to Wednesday Blah...Thursday from blah to Friday blah..." However, in the word "visitation" DOES appear under the "OTHER" section--"Father will have visitation very New Year's Day...Father will have visitation every MMD Weekend...." If we are being technical and strictly following the order, though it sounds silly, would it be right to say that if CP denies visitation on the regularly scheduled days where the word visitation does NOT appear, she'd be in contempt; however, should CP deny on the days that fall under "Other" she wouldn't be?

If so, do you still maintain that I shouldn't file for contempt when she denies visitation and just hold all the evidence for the hearing in September? I have been denied visitation about 6-7 times since this order was entered in January, and every single time CP told me that she would not drop my son with my wife and if I didn't get him myself, I couldn't see him. Would being found guilty of 6 contempt charges be damning enough to have custody modified to joint, or am I better off waiting? And is there a statue of limitation on filing--meaning, would it be pointless to try and file a motion to hold CP in contempt for denying visitation two or three months back (I have everything documented)?

Why can't out lawyer be as helpful as you?
THANK YOU!!!

[socrateaser]

>"That having been said, if during the "yadayada" part, the
>order suddenly starts using the word "visitation," then she
>may have an argument, because at that point the order becomes
>ambiguous and badly written."
>
>The wording is "...with partial physical custody to FATHER, as
>follows--A. Weekends beginning Sunday from blah to blah...B.
>Weekdays beginning Tues blah to Wednesday Blah...Thursday from
>blah to Friday blah..." However, in the word "visitation" DOES
>appear under the "OTHER" section--"Father will have visitation
>very New Year's Day...Father will have visitation every MMD
>Weekend...." If we are being technical and strictly following
>the order, though it sounds silly, would it be right to say
>that if CP denies visitation on the regularly scheduled days
>where the word visitation does NOT appear, she'd be in
>contempt; however, should CP deny on the days that fall under
>"Other" she wouldn't be?

Regrettably, you have the gist of it. Custody and visitation are not the same thing, and when the words are used interchangably in an order, there is no possible way to obtain a contempt, because the defendant can argue that the order is not sufficiently precise to permit a reasonble person to know that they are in violation.

Where the order directly says custody and presents parenting time, that would clearly be custody and failure to transfer the child to person delegated by the parent who is to exercise custody would be contempt. But, if it says visitation, for some other days, then during those periods, the failure to transfer would not be contempt, even though the logic of the order might be that custody was intended.

This is because, intended or not, when interpreting criminal law, the court is required to lean towards the defendant wherever the text of a statute or order is ambiguous. And, as a contempt hearing to sanction someone for past behavior is a quasi-criminal proceeding, that is what the court would be required to do -- thus no contempt where visitation appears in the order.

Doesn't mean that your interpretation isn't correct. Just means that you can't enforce it unless the orders are clarified.

>If so, do you still maintain that I shouldn't file for
>contempt when she denies visitation and just hold all the
>evidence for the hearing in September?

You haven't stated what this hearing in Sep. is for, but I wouldn't file for contempt, because you will lose. I would file an emergency order to clarify the text of the current orders to permit the other parent to pick up the child and to substitute the word visitation in the order for the phrase "exercise custody," on grounds that the current orders are permitting the other parent to frustrate your access to custody by aggressively interpreting the order to mean that you only have a personal license to visit the child.

>I have been denied
>visitation about 6-7 times since this order was entered in
>January, and every single time CP told me that she would not
>drop my son with my wife and if I didn't get him myself, I
>couldn't see him. Would being found guilty of 6 contempt
>charges be damning enough to have custody modified to joint,
>or am I better off waiting?

You keep using the word "visitation." STOP using it, unless you want someone to believe that your interpretation is the same as your opponent's. You are EXERCISING CUSTODY NOT VISITING THE CHILD, ok?

I don't know the precise facts that a contempt motion would be based, nor whether they are based on the parts of your order that states "custody," or "visitation." But, I think you will have a very difficult time getting a contempt order unless you first clarify the conflicting text of the order. Contempt requires proof beyond reasonable doubt, so unless you evidence is unassailable you will lose.


>And is there a statue of
>limitation on filing--meaning, would it be pointless to try
>and file a motion to hold CP in contempt for denying
>visitation two or three months back (I have everything
>documented)?

I don't know the law in your jurisdiction. A statute of limitation would be restricted to your state, so ask your attorney.

>
>Why can't out lawyer be as helpful as you?

I'm sure he/she can. But, consider the fact that every time you post a question on this board, I am saving you about $75-150 worth of billing time, depending on how long it takes me to answer. It would add up fast...real fast.