More questions - motion for enforcement of possession of or access

[tiredofhergames]

Dear Socrateaser,

This is concerning parties in Texas.

I wrote you a few weeks ago concerning the matter of my ex (X) denying me access and visitation. I have since filed a "Motion for Enforcement of Possession of or Access to Child" with the proper court.

Today I received a letter from X's newest attorney, which included a copy of "Respondent's Original Answer" which was filed with the court on October 30, 2006.

It reads:

"1. General Denial

Respondent enters a general denial

2. Affirmative Defense

Petitioner voluntarily relinquished actual possession and control of the chid.

3. Information about Child

Information required by section 154.181(b) of the Texas Family Code is provided in the statement attached as Exhibit A. (A is a written statement from X saying I do not provide medical insurance, which is incorrect, as I do provide it)

4. Attorney's Fees, Expenses, Costs, and Interest

It was necessary for Respondent to secure the services of Xxxxx X Xxxxxx, a licensed attorney, to prepare and prosecute this suit. For services rendered in connection with conservatorship and support of the child, judgement for attorney's fees, expenses, and costs through trial and appeal should be granted against Petitioner and in favor of Respondent for the use and benefit of Respondent's attorney and be ordered paid directly to Respondent's attorney, who may enforce the judgement in the attorney's own name. Respondent requests postjudgement interest as allowed by law.

5. Prayer

Respondent prays that Petitioner take nothing and that Respondent be granted all relief requested in this Original Answer.

Respondent also prays for attorney's fees, expenses, costs, and interest as requested above.

Respondent prays for general relief."

As I stated in the previous letter, I spoke with the Assistant AG of TX regarding this matter back in August, who then told X that she could not keep my child from me. The Asst. AG then provided me with a website and a phone number for Texas Access, to help me get visitation back.

In accordance with the instructions from an attorney from TX Access, I began sending letters of intent, both first class and certified to X every other week. I am still being denied access.

I attached copies of these letters, postal receipts, and other documents to the original Motion for Enforcement as exhibits.

The last two times I tried to exercise my rights, I had local law enforcement involved, and their are reports to verify this. This is also true of school officials and law enforcement, as I went to a game looking for him.

Questions:

1. Considering the documentation (letters, video, phone logs, written statements from witnesses (notarized),etc) is it even feasable for her to claim I voluntarily relinquished possession?

2. Since I spoke to the assistant AG on this in August, and she told X she couldn't do this, can I ask that the Asst. Ag be a witness that it wasn't voluntary?

3. In number 4 above, it refers to child support (which has been dealt with on it's own), why is this being brought up in a motion for enforcement of possession?

4. In regards to X's Original Answer, should I file a response, especially in light of the misinformation regarding insurance?

5. Since X has brought an attorney into play, am I now obligated to do the same, or should I continue on my own?

6. Do I need to start preparing a witness list, to be called, that can attest to the fact I have been trying to exercise my rights?

[socrateaser]

>Questions:
>
>1. Considering the documentation (letters, video, phone logs,
>written statements from witnesses (notarized),etc) is it even
>feasable for her to claim I voluntarily relinquished
>possession?

That's what she's testifying. You must disprove her clam . I've not seen your evidence, so ask yourself if you were an objective disinterested judge, would you find that your evidence disproves her affirmative defense. If your answer is yes, then it's not a feasible defense -- otherwise, it is.

>
>2. Since I spoke to the assistant AG on this in August, and
>she told X she couldn't do this, can I ask that the Asst. Ag
>be a witness that it wasn't voluntary?

You can ask, but she will likely refuse, and if you subpoena her, she won't remember the conversation. But, call up and ask and see what happens.

>
>3. In number 4 above, it refers to child support (which has
>been dealt with on it's own), why is this being brought up in
>a motion for enforcement of possession?

Because a party is entitled to try to get attorney fees in family court. The rule is need and ability to pay. If one party needs the payment and the other has the ability to pay, and that outweighs the reverse proof, then the court will order attorney fees, UNLESS the defending party shows that the requesting party acted unfairly in the transaction between the parties that is at issue in court.

In short, if you win the enforcement motion you will defeat the request for attorney fees, and if you don't, the court will examing your respective needs and ability to pay, and will award attorney fees based on the outcome of the balancing test.

>
>4. In regards to X's Original Answer, should I file a
>response, especially in light of the misinformation regarding
>insurance?

No, you just prove your case in court. You don't want to give away your entire strategy in print.

>
>5. Since X has brought an attorney into play, am I now
>obligated to do the same, or should I continue on my own?

Obliged, no. Smart, yes. You are up against a professional. "Do ya feel lucky punk? Well, do ya?" -- Dirty Harry

>
>6. Do I need to start preparing a witness list, to be called,
>that can attest to the fact I have been trying to exercise my
>rights?

You need witnesses who will testify that you were unable to exercise your rights, not that you were "trying" to exercise them. It's not enough that you were trying -- what matters is whether she was preventing you.

[tiredofhergames]

In regards to witnesses, I have a friend who rode along with myself on one occasion when I went to pick up my son, who has provided a notarized statement to the effect that while we were there for over three hours at X's residence, she was not home after being notified in writing and by phone that I would be there. This friend was also there when I went to the game at the school.

All of the above is also on videotape. I left it running on record throughout most of this, and have two officers that can also attest to this.

On another occasion, my wife and a friend went to pick up my son for me as I had to work. Letter and phone notice of intent to exercise given in advance. Notarized statement from friend, stating that in the two hours they were at the house X was not home. Also pertains to a conversation had with room mate of X, who has said that X picks child up from school on Fridays since letters of intent started being sent.

I have video and audio - with consent - of room mate (RM) making same statements that X picks child up from school, then keeps him out until 1 or 2 a.m. on these Fridays.

Along with this, RM also talks about X not letting child or anyone else answer phone when my number shows up on caller ID. In many cases, they are standing and listening to me leave messages.

Neighbors of X have said same as RM concerning Fridays.

I do not wish to make public the entire motion, but will say that in motion filed mid-October, there are over 15 seperate incidents of denial, and three more have occured since. In motion, I included at least eight letters of intent to exercise, two denial letters, postal receipts, certified mail receipts - signed by X showing she picked them up.

I also have returned certified mail, unopened that she refused to pick up. I have two seperate video tapes of two seperate denied visits. I have phone logs, phone records, tables showing missed times, etc.

This is only the beginning of what I have to show she is intentionally denying access by not having child available.

RM signed one paper saying that when my wife was there for over an hour, X and child were not home. Second time RM refused to sign such letter as X had threatened RM if RM did it again. Third time, RM signed letter saying that RM accepted letter to give to X that I was at the home to pick up child for over 1 1/2 hours and X was not home.

I also have cell phone records going back over six months showing dates and times of when I attempted to call X to arrange my possession of or access to my child.

Even after motion for enforcement, which requested relief in the form of make-up time, was filed, X has continued to deny access, and now is suddenly not signing for certified letters. Motion left contempt up to discretion of the Court. I am not trying to be vindictive, I simply want to see my child.

Questions:

1. Do I still need to subpoena those who have written and signed notarized statements, or will the statements do in place of it?

2. Knowing that RM will be hostile witness, should I still subpoena RM or let videos, statements and signatures take the place of this?

3. Is it acceptable for my wife to be a witness, as she has been the one who, with written permission from me, to attempt to exercise possession of or access of visitation at initial pick-up a few times?

4. X called after first letter to "trade" weekends, then never answered another call, doesn't this show I definately did not voluntarily give up my rights?

5. With the evidence I have told you about, and can supply to you if needed, is it enough to show I didn't voluntarily give up my rights?

6. Though I am now in process of trying to find an attorney I can afford, if I can not do so by the court date, will this hurt my case in the eyes of the court?

7. Would X picking child up from school ( he normally rides the bus ) and keeping him out til 1 or 2 a.m. be considered X preventing me intentionally from exercising my rights?

8. Is there anything else I can do that I have not already done that would help me in this?

Thank you for helping me on this, I have looked in so many places, and in the past month, this is the one place I have found that will provide answers. The fact that you do this on your own time, without benefit of pay is incredible, and I'm sure that many others would agree that without you, we would have no where else to turn. Thank you again.

[socrateaser]

>Questions:
>
>1. Do I still need to subpoena those who have written and
>signed notarized statements, or will the statements do in
>place of it?

The statements are all objectionable hearsay without the witnesses available for cross examination.

>
>2. Knowing that RM will be hostile witness, should I still
>subpoena RM or let videos, statements and signatures take the
>place of this?

This is the only credible witness. You subpoena her, put her on the witness stand, ask her questions. If she starts "testilying," the you ask the judge to let you treat her as a hostile witness, and then you offer the physical evidence contradicting her testimony and then ask her again if she would like to change her testimony.

>
>3. Is it acceptable for my wife to be a witness, as she has
>been the one who, with written permission from me, to attempt
>to exercise possession of or access of visitation at initial
>pick-up a few times?

Sure, but the judge isn't going to give your wife's testimony much weight without corroberation. So, if you have a video or audio, then if on cross exam, opposing counsel suggests that your wife has an interest in the outcome of the case, she should say, "I have the entire encounter on video, we could sit here and watch the entire thing, if you'ld like?" That will get the judge's attention, and you probably won't have to actually offer the recording into evidence (since no one's gonna watch it anyway).

>
>4. X called after first letter to "trade" weekends, then never
>answered another call, doesn't this show I definately did not
>voluntarily give up my rights?

How are you gonna prove that you didn't refuse her offer? A: you can't. The proof that you didn't voluntarily give up your time is that you're in court trying to get time -- why else would you be there -- you just made it all up, and so did all the witneses? No. The affirmative defense is just not gonna fly, so don't worry about it.

>
>5. With the evidence I have told you about, and can supply to
>you if needed, is it enough to show I didn't voluntarily give
>up my rights?

See above.

>
>6. Though I am now in process of trying to find an attorney I
>can afford, if I can not do so by the court date, will this
>hurt my case in the eyes of the court?

If you have a lawyer, you're gonna win. If you don't, you may not. Choice is yours. I'd go for the throat. Maybe you'll get a whole new custody eval.

>
>7. Would X picking child up from school ( he normally rides
>the bus ) and keeping him out til 1 or 2 a.m. be considered X
>preventing me intentionally from exercising my rights?

I would, and it would also be a demonstration of the parent acting affirmatively against the child's interests, which is all you need to obtain a new custody hearing -- assuming that the judge honors the law (he may, or may not, so don't get bent if things don't go perfectly).

>
>8. Is there anything else I can do that I have not already
>done that would help me in this?

Offer to drop the enforcement in return for her stipulating to joint custody and substantially equal parenting time. Then see what happens.