Additional Discovery in Change of Custody Case

[sunnyin_fl]

Without going into long drawn out detail...here's a little history then my question, it's still a little long....SORRY

Last year Motion for Contempt in May, lots of hearings, no shows on my ex's part (ever married) starting in May of 2005.  Everything at that time I did pro-se.  I couldn't have done it without my wife's help.  Anyway, finally ending with an Order or she was going to jail in January of 2006.  Makeup visitation with me 6 weeks, with her 2 weeks until either school started or other motions were filed.  

Finally received child after a year for makeups.  Received child on Saturday, had to call and make DR's appts on that Monday.  Child was malnourished, under weight...possible drugs in system.  Child had just turned 5.  Doctor referred him for drug testing....hair and urine...nothing in urine...hair test came back with enough THC in system that the scientist said he could be smoking it himself.  Of course that wasn't happening, but mother has history of drug abuse.

Filed for temporary custody with an attorney after DCFS came out and did nothing basically... mother was allowed 3 days to have urine test taken...nothing done on her current husband.  We supplied urine and hair follicles on my wife and I that were negative...no transfer of custody allowed until all hearings and evaluations were done by order of the court.

Discovery - we have found out after we filed all the reasons for the change, the fact that ex's current husband is a convicted felon (burglary) and probation was revoked and resent to jail for drug use.  File is laced with everytime he checked in, he had drugs in system. Admitted to drug problem.   Also, his drivers license is suspended get this since 1996 and after calling all the courts in the state he used to live in, will have to pay over $13,000 to get it reinstated, the guy is only 33.

Now the questions:

1.  Since we have already filed our reasons for the change in custody, can I go back and add the felony/drug usage charge as another reason my child had drugs in system even if mother claims she doesn't use?
(son was born with drugs in system, and mother again tested for drugs and failed in the same year through DCFS, mother also has lost custody of another child)

2.  Ex is currently unable to travel due to problem pregnancy (3rd child, 3rd man)for pickups/dropoffs for visitation and child is being driven by her current husband with suspended license...Is there anything that can be done after the child is dropped off to get him arrested for endangering the child.  

3.  How can we document #2 behavior without taking pictures of vehicle with he and my child in it?  I don't want to provoke him in front of my child.  They went so far to accuse my wife and I of having an "IN" at DCFS and contacting the lab where the drug test was done and say we took the hair from someone else and brought it in...CRAZY

Thanks.

[socrateaser]

>Now the questions:
>
>1.  Since we have already filed our reasons for the change in
>custody, can I go back and add the felony/drug usage charge as
>another reason my child had drugs in system even if mother
>claims she doesn't use?

If you have police/probation reports that show husband's drug use and criminal behavior, I would go back and try to use these new facts as rationale for a temporary order modifying custody in your favor, now.

But, yes, you can supplement your pleadings with new evidence.

>2.  Ex is currently unable to travel due to problem pregnancy
>(3rd child, 3rd man)for pickups/dropoffs for visitation and
>child is being driven by her current husband with suspended
>license...Is there anything that can be done after the child
>is dropped off to get him arrested for endangering the child.

Driving with a suspended license does not prove child endangerment (doesn't disprove it, either, just don't get ahead of yourself in your drawing conclusions). However, if you are certain that his license is suspended, then you could report his vehicle and ask the police to stop him. They will probably arrest him, which would mean that no one will be able to pick up/drop off the child, except for you, so, you may be stuck providing all of the transport.

>3.  How can we document #2 behavior without taking pictures of
>vehicle with he and my child in it?  I don't want to provoke
>him in front of my child.  They went so far to accuse my wife
>and I of having an "IN" at DCFS and contacting the lab where
>the drug test was done and say we took the hair from someone
>else and brought it in...CRAZY

There's no need to document anything. You can call the police and report him driving without a license, and they can stop and search based on the probable cause created by your report.

But, be careful with the revenge thing. If this guy is dangerous/violent, you could find yourself looking into the barrel of a loaded weapon on some dark future night.

[sunnyin_fl]

Thanks for the info...but have another question:

1.  What is your opinion if we file for temporary custody on timing since the child is in Kindergarten...now so we can get a hearing while he is on Christmas Break?

2.  What is your experience with filing temporary custody and being denied already once.  I have done my evaluation and so has my child with me.  The mother is asking for an extension and the order for parenting evaluation was ordered in late June.  She filed for extension on 9/29, but no hearing has been set.  

[socrateaser]

>Thanks for the info...but have another question:
>
>1.  What is your opinion if we file for temporary custody on
>timing since the child is in Kindergarten...now so we can get
>a hearing while he is on Christmas Break?

Judges take Christmas off. Getting a hearing in that time period is usually impossible. Either way, trying to time your hearing is entirely hypothetical until you find out from the clerk when you can get a hearing.

So, find out, then decide what you want to do.

>
>2.  What is your experience with filing temporary custody and
>being denied already once.  I have done my evaluation and so
>has my child with me.  The mother is asking for an extension
>and the order for parenting evaluation was ordered in late
>June.  She filed for extension on 9/29, but no hearing has
>been set.  

Your new motion is based on newly discovered facts, so anything previous is irrelevant. The only question is whether this issue is serious enough for the court to pay attention. I think it's worth a shot, but I don't know your judge or your court, so I can't really advise further.

[sunnyin_fl]

I talked to my attorney finally....ya'll are always so busy....LOL!!!!

Talked with him and he said that he was going to file a "Motion to Review or a Motion for Review" on my case.  That because my ex had not done the parenting evaluations within her time limit and now after the fact is asking for an extension and the new information on her new husband.....(who by the way we think they have split up, he is working in Oregon and she lives in Georgia.  He's been gone since September and she supposedly is having a problem pregnancy...STRANGE) he said that he wants the judge to look over everything.

1.  My question is...what exactly is she going to look at and what is a Motion to Review?  It seems pretty self-explantory, but yet I don't know what she would actually be reviewing or what the outcome could be to it...any ideas?

2.  Could the judge cancel the parenting evaluation for her and just move forward with the case.  We don't want that to happen, one because I've paid my $1500 for it and two, she is bi-polar doesn't take the prescribed medication and uses pot to help her.  Our child was born with it in his system...she was hiding her usage while I was at work.  Needless to say, the doctor in the NICU unit had to sedate me...I was ready to well....that was my baby...so I'm sure if you have kids you can understand.

Thank you for all of the advice that you give on this site...not just for me but for all others.  Clarification of things sometimes is the best medicine for the other party as well!  

There should be more people like you in this world.

[socrateaser]

>1.  My question is...what exactly is she going to look at and
>what is a Motion to Review?  It seems pretty self-explantory,
>but yet I don't know what she would actually be reviewing or
>what the outcome could be to it...any ideas?

I don't know. Sounds like a local motion. Your attorney doesn't believe that the new facts demonstrate the necessary irreparable harm to obtain emergency relief, otherwise he/she would have filed a request for emergency temporary custody.

I would want to know why the attorney believes your facts fall short. You are apparently not asking questions (which is typical -- most clients fear their attorneys because attorneys tend to dismiss what they view as intrusive or ignorant questions). My approach, if I am a client, is to tell the attorney up front at the beginning of the retainer, that there will be no retainer unless the attorney justifies any tactic before undertaking it.

Of course, I'm in a better position than most clients to make demands, but the point is that you can't let your lawyer just tell you how things are gonna go -- ASK QUESTIONS when you don't understand the process. Ultimately, you have the authority to instruct the attorney to take a different path -- the attorney can withdraw from the case, but you're the boss -- not the attorney.

>
>2.  Could the judge cancel the parenting evaluation for her
>and just move forward with the case.  We don't want that to
>happen, one because I've paid my $1500 for it and two, she is
>bi-polar doesn't take the prescribed medication and uses pot
>to help her.  Our child was born with it in his system...she
>was hiding her usage while I was at work.  Needless to say,
>the doctor in the NICU unit had to sedate me...I was ready to
>well....that was my baby...so I'm sure if you have kids you
>can understand.

Yes, the judge could do that -- if I were the judge, I probably would do it, as a penalty for failing to cooperate.

>There should be more people like you in this world.

If there were, I would be more average. That would be tuff for my ego!

LOL!