Parenting time suspended

[backwardsbike]

I received a phone call today from my X telling me that I would not have custody of my children today as he had gotten an order suspending any time until a court hearing has occurred.

The reason for this order is that X says my Dh was drinking while the children were here.  This incident occurred in September.  My lawyer sent me a copy of a petiton which was dated 9/29/06.  Then it wasn't filed at the court house. We have never gotten a time stamped copy of the petition.  The order was dated 10/23/06.

Sometime between then and now it must hvae been filed.  However the children have had four visits since the motion was written and my attorney was served.

I am fairly sure that my evidence will support the fact that my DH was NOT drinking on the day in question.  He is a recovering alcoholic.  He has also had drinking problems in the past.  However, he is now clean and sober and has professionals who will back that up.  There was also another adult here at the time my X alleges Dh was drinking.

The petiton said my children did not want to be here unless I was present.  I am always here with them on weekends and i had requested my X change the night of the visit when the alleged drinking was supposed to have occured to accomadate a class I am taking but he refused adn we had to see the counsleor the court ordered for X to finally agree that it was best for the kids if they actually got to see me during the visit.

When I called my lawyer to inquire about the order she said she had gotten "something" but hadn't realized it was an order.  She just realized she was unavilable on the date in question and asked to have it rescheduled.  We do not have a new date as of yet, but it may well be that we will have to wait until after the holidays.

Question:

Can I do anything legally to try to get the parenting time started back up before a hearing?

Since I am at home when the children are scheduled to come and the objection had been that the children did not want to be here without me is this reason to say the paretning time should not be suspended?

Is it true that there was nothing my lawyer could have done to fight this until it was filed?

[socrateaser]

>Question:
>
>Can I do anything legally to try to get the parenting time
>started back up before a hearing?

Yes, demand that your attorney appear at the hearing at the original time or hire another attorney and complain to the state disciplinary agency. Not realizing that an order is an order is incompetency and could subject your attorney to suspension.

If you lose time during the holidays and the court finally decides this matter in your favor, I would sue the attorney for malpractice, too.

>
>Since I am at home when the children are scheduled to come and
>the objection had been that the children did not want to be
>here without me is this reason to say the paretning time
>should not be suspended?

Sounds good to me.

>
>Is it true that there was nothing my lawyer could have done to
>fight this until it was filed?

It's false. Where one attorney knows that the other party is represented by counsel, the attorney must make a good faith effort to contact opposing counsel prior to any emergency hearing, so as to permit both attorneys to be present.

Your opponent should have contacted your attorney, and if he/she didn't, then you should be able to go back in on another emergency hearing and have the first order vacated, on grounds that it was obtained without following proper procedure.

Your attorney could also request an order shortening time for the hearing so as to deal with this before the holidays.

Both of these attorneys appear to be playing fast and loose with the law, and this sort of thing absolutely disgusts me, because it is what gives lawyers a deservedly bad reputation, by screwing with their clients' interests rather than representing them.

[backwardsbike]

My problem is that there was NO hearing at all.  A petiton was written and served on my attorney back in September.  But the OC never filed it with the courts.  Then suddenly, they filed it  almost a month later and I got this order from my X.

The visits were suspended without a hearing.  The hearing is not scheduled until November 20.  The order was signed by the judge on October 23.

The petition requested special relief in the form of the children not spending time here without me present.  It asked that the vists be suspended until a hearing could be held.  But as I said, now that my X has finally agreed to change the date of the weekenight visits I am always here when my children come over.  So why should the vists be ssupended at all?

[socrateaser]

>The petition requested special relief in the form of the
>children not spending time here without me present.  It asked
>that the vists be suspended until a hearing could be held.
>But as I said, now that my X has finally agreed to change the
>date of the weekenight visits I am always here when my
>children come over.  So why should the vists be ssupended at
>all?

I've already explained, but I'll do so again. Emergency relief can be obtained by a party where they believe that they or the children will suffer irreparable harm if their relief is not granted without a hearing.

However, a hearing must be scheduled within thirty days, which apparently has occured, based on your facts.

You can demand that your attorney appear at the Nov 20 yearing, because to do otherwise is to deny you due process, so I advise you to do just that and do not take no for an answer. In fact, if your attorney refuses, then you tell him/her that you will report him/her to the state disciplinary agency for refusing to zealously represent your interests.

Also, as I have already explained, where a party knows that the other party is represented by counsel, that party's attorney MUST make a good faith effort to notify opposing counsel that the emergency relief will be sought. As your ex has an attorney and so do you, they should have stated that they made such an attempt as part of their pleading to the court for emergency relief.

And, if this occurred and your attorney made no effort to show up, that is MALPRACTICE and a violation of the rules of professional conduct.

This is not to say that the court would have ordered any differently, but it is a fair indicator of the quality of your legal representation (or lack thereof).

So, like I said, get your evidence together and tell your lawyer that he/she had better show for that Nov. 20 hearing or you will place whatever funds of yours currently exist in his/her trust account in dispute, terminate the representation, and report him/her to the state disciplinary agency.

Got it? Do it!

[backwardsbike]

My lawyer contacted the judge.  Apparently the judge had just signed the order WITHOUT reading it.  He thought he was just scheduleing a hearing.  The order has been vacated and a new order was singed setting a hearing date at a time when my attorney could attend.

I find it very hard to believe that neither my lawyer or the judge read the order.  Both just assumed it was simply for a hearing.  Aparently neither legal secretary read it either.

Questions:

Is there any way to recover my attorney fees for this mix up?

Who is really responsible?

[socrateaser]

>Questions:
>
>Is there any way to recover my attorney fees for this mix up?

Sure -- sue the judge for violating your due process rights by signing an order without reading it first.

Of course, the judge will deny it all, and say something like the pages were stuck together with some other order, so he thought he was signing a different order than the one he signed, and as soon as he was informed of his error, he reversed himself.

Then you'll have a pissed of judge to face. This may be a blessing in disguise, because the judge may feel a twinge of embarrassment which will provide you with a little leverage. So, it may actually be worth the money.

Anyway, if you start fighting over this, you'll probably lose and be in worse shape than you started out. So, I suggest you forget that it happened and move on.

>
>Who is really responsible?

You and your ex for having sex and conceiving children. Or, you could put it in God's lap -- if he hadn't breathed life into those egg there would be no kids.

Seriously, though, the judge screwed up and you're paying the price. It's one of those unfair things in life.

[backwardsbike]

I got my new order!  I got my visits back as scheduled, a new hearing date which doesn't conflict with my attorney's schedule and a make up week end to be scheduled within the next two months!

Life maye unfair sometimes, but I couldn't be happier today.  No harm, no foul!