Chances for Full Custody

[cassandragrace]

Background:

I am dealing with a bio mother who has made every attempt to hinder a regular visitation schedule of a 5 year old girl with her bio father(my boyfriend).  

The parents have been separated almost two years.  Father has only had one overnight visitation with child, because the mother continually denies access.  The mother has come to our house and thrown fits, and also told child she is "too young" and that she would "be so lonely without her" if she stayed the night with father.

Recently, a judge granted the father overnight visitations EOW.  The mother did not want this and lodged a complaint with DSS on Nov. 2, stating that on the evening of Oct. 26 (last time child was with father) she found blood in their daughter's underwear.  She did not have these underwear as evidence for DSS.

The mother obtained a temporary order (1 week) from DSS, barring the father from access with the child. The mother obtained this illegally, by lying to DSS, stating there was no court order regarding visitation in effect.

The mother waited until the day this order was so expire(Nov. 9) to allow DSS to interview child.  DSS found the allegations to be untrue, and when the case worker informed the mother of this, she said the mother became "enraged".  DSS interviewed the father and informed him child had told case worker that the mother was telling her bad things about father and girlfriend(me).

Not 2 hours after the case worker told mother the findings, mother went to district court and obtained a protective order against father; making the same allegations and requesting a DSS investigation.  Father and Mother are to both attend hearing final protective order hearing on Friday (Nov.17). Father is to have no contact with child until that date.

Mother has also written letter to child's doctor stating Father is not to have access to child's medical records.  Father informed Dr. it was illegal to refuse him access, the Dr. still denied the access.

Father's lawyer has filed multiple counts of contempt against mother for violating court order.

1-What are any possible repurcussions for mother for lying to DSS?

2- What are any possible repurcussions for mother for filing for protective order after DSS concluded the investigation and informed her no abuse had taken place.

3- Will the fact that the mother has made numerous attempts in the past to keep child away from father work against her in emergency hearing?

4-Will the fact that the child has primarily resided with mother affect the judges ruling on custody, even taking into account the mental and emotional trauma the mother is causing by keeping child away from father?

5- Does Father have any chance of being reimursed for legal fees accrued while fighting mother's false allegations and contempt?

6- Does the father have any chance of receiving temporary full custody, based on the contempt and false allegations mother has committed?

[socrateaser]

>1-What are any possible repurcussions for mother for lying to
>DSS?

She could be prosecuted for filing a false report, but it's highly unlikely on the first report. If you want anything else favorable from the DSS incident, then you had better subpoena the case worker to your hearing along with a copy of the DSS report. Otherwise, the outcome of that incident will be objectionable as hearsay and may be excluded as evidence (or may not, but I wouldn't want to chance the exclusion).

You could sue the other parent in civil court for defamation and intentional infliction of emotional distress, but unless she has some assets that you could execute against, you'ld probably never collect any money from her. And, you'ld have to bear your own attorney fees.

>2- What are any possible repurcussions for mother for filing
>for protective order after DSS concluded the investigation and
>informed her no abuse had taken place.

If you prove that her allegations are based solely on the DSS report, which found no evidence of abuse, then she could be found to have perjured herself in her declaration to the court, and sanctioned for contempt, or referred to the DA for prosecution.

It depends on the specific facts alleged; I can't really assess the likelihood of a sanction without reading both the DSS report and the parent's petition/motion for a protective order.

>
>3- Will the fact that the mother has made numerous attempts in
>the past to keep child away from father work against her in
>emergency hearing?

There is the truth -- and there is what you can prove to the court. Frequently, these are not the same. You are asking me all sorts of questions, based on your assertion of certain facts as true, but you are not telling me how you intend to prove these facts to the court.

If you can't prove to the court that the mother has routinely frustrate father's exercise of parenting time, then it doesn't matter what the truth is. So, the question for you is: WHat proof do you intend to offer for all of the defenses that you intend to present?

>
>4-Will the fact that the child has primarily resided with
>mother affect the judges ruling on custody, even taking into
>account the mental and emotional trauma the mother is causing
>by keeping child away from father?

This is a temporary hearing. The judge must first find that there has been a substantial change in circumstances, which means clear and convincing evidence of something negative happening in the children's life. Once again, it comes down to the respective parties' proof.

No proof = no changes.

>5- Does Father have any chance of being reimursed for legal
>fees accrued while fighting mother's false allegations and
>contempt?

If father demonstrates that every allegation of irreparable harm to the children/mother, made by mother is false, then the action will be dismissed, and father should be able to obtain attorney fees. Otherwise, not.

It's frequently very difficult to completely disprove every allegation, especially in the absence of objective third party evidence. Here, however, you have the opportunity to get the DSS report and case worker to testify as to what prompted this protective order hearing.

I'd say, that the case worker's presence at the hearing is KEY to all of your positive outcomes.

>
>6- Does the father have any chance of receiving temporary full
>custody, based on the contempt and false allegations mother
>has committed?

You are asserting all sorts of things as if they are established facts, when, they are not. It all comes down to what you can prove to the judge. The matter is very much in your hands at the moment, based on the facts you've presented.

[cassandragrace]

>1-What are any possible repurcussions for mother for lying to
>DSS?

She could be prosecuted for filing a false report, but it's highly unlikely on the first report. If you want anything else favorable from the DSS incident, then you had better subpoena the case worker to your hearing along with a copy of the DSS report. Otherwise, the outcome of that incident will be objectionable as hearsay and may be excluded as evidence (or may not, but I wouldn't want to chance the exclusion).

You could sue the other parent in civil court for defamation and intentional infliction of emotional distress, but unless she has some assets that you could execute against, you'ld probably never collect any money from her. And, you'ld have to bear your own attorney fees.

---We have a copy of the DSS report, Father's lawyer is going to subpeona case worker to appear.  Mother does not have any assets as of this moment.  But father and mother in still in the process of divorce, could he receive reimbursement from her share of the equity if defamation of character can be proven?  We do know from a third party that mother has also spoken to people she works with claiming to them that father is a child molester, etc.


>2- What are any possible repurcussions for mother for filing
>for protective order after DSS concluded the investigation and
>informed her no abuse had taken place.

If you prove that her allegations are based solely on the DSS report, which found no evidence of abuse, then she could be found to have perjured herself in her declaration to the court, and sanctioned for contempt, or referred to the DA for prosecution.

It depends on the specific facts alleged; I can't really assess the likelihood of a sanction without reading both the DSS report and the parent's petition/motion for a protective order.

----In the protective order petition, the mother states that the child told the maternal grandmother that the father was sexually molesting her.  No where in the petition do they make any mention of DSS having JUST investigated this matter.

  The DSS report states that the mother and grandmother of the child alleged to have found blood in the child's underwear, however they waited an entire week to bring this issue to DSS, and did not have the underwear (which you would think they would save, if these allegations had any truth to them).

Also, the mother had mentioned to the child's doctor she suspected sexual abuse was taking place, the child was examined and although the doctor also found no physical evidence of abuse, he was legally obligated to notify DSS, but stated that he had found no evidence of this either.

>
>3- Will the fact that the mother has made numerous attempts in
>the past to keep child away from father work against her in
>emergency hearing?

There is the truth -- and there is what you can prove to the court. Frequently, these are not the same. You are asking me all sorts of questions, based on your assertion of certain facts as true, but you are not telling me how you intend to prove these facts to the court.

If you can't prove to the court that the mother has routinely frustrate father's exercise of parenting time, then it doesn't matter what the truth is. So, the question for you is: WHat proof do you intend to offer for all of the defenses that you intend to present?

------We have documented numerous instances of the mother withholding visitation.  
The mother has also admitted to doing so in front of lawyers and a judge, stating excuses that cannot be proven and/or are matters of her personal opinion.

Such as: daughter stated she did not want to go with father--so mother denied father access to child, mother believed child was not ready to stay the night, and thought that father would try to keep her, so would not allow father to see or speak to child.  Mother has negative opinion of father's girlfriend (me) so admitted to only allowing father to visit daughter in mother's home under her supervision, etc etc.  

>
>4-Will the fact that the child has primarily resided with
>mother affect the judges ruling on custody, even taking into
>account the mental and emotional trauma the mother is causing
>by keeping child away from father?

This is a temporary hearing. The judge must first find that there has been a substantial change in circumstances, which means clear and convincing evidence of something negative happening in the children's life. Once again, it comes down to the respective parties' proof.

No proof = no changes.

----The mother is attempting to prove that the father is sexually molesting the child.  DSS has found this to be untrue.  The father is alleging that the mother and grandmother are damaging the mental and emotional well being of child.  Child told case worker that both mother and grandmother have told her negative things about father and father's girlfriend.

Also, the lengths mother has taken to keep daughter away from father have prevented father from seeing or speaking to daughter for nearly 3 weeks.

>5- Does Father have any chance of being reimursed for legal
>fees accrued while fighting mother's false allegations and
>contempt?

If father demonstrates that every allegation of irreparable harm to the children/mother, made by mother is false, then the action will be dismissed, and father should be able to obtain attorney fees. Otherwise, not.

It's frequently very difficult to completely disprove every allegation, especially in the absence of objective third party evidence. Here, however, you have the opportunity to get the DSS report and case worker to testify as to what prompted this protective order hearing.


I'd say, that the case worker's presence at the hearing is KEY to all of your positive outcomes.

---What do you mean by 'objective third party evidence"?

>
>6- Does the father have any chance of receiving temporary full
>custody, based on the contempt and false allegations mother
>has committed?

You are asserting all sorts of things as if they are established facts, when, they are not. It all comes down to what you can prove to the judge. The matter is very much in your hands at the moment, based on the facts you've presented.

[hagatha]

Soc,

As I've seen you suggest in the past, can the father submit to a pollygraph test given by an independent facility to offer to the court as proof of innocence in this matter? And of course request the mother submit to the test also?

Also should the father take the pollygraph prior to the hearing and have the results ready to give to the Judge?

As for the actual custody hearing. . .

Since the mother and grandmother have alledged molestation and have done so in the presense of the child, could the father petition for an evaluation of the Child.

I would think given the child's age (5) it would not be very difficult to convince the child the molestation did indeed happen, even if it did not.

If in fact, they can convice this child she had been molested and the perpetrator was her father, she would grow up believing she was a victim of abuse and would experience all the negative ramifications through out her life that an actual abuse victim would.

Can or should the father have a therapist that specializes in sexual abuse testify in court to the damages, (emotional, psychological, emotional, etc) this child could face if left in the care of her mother and grandmother if they continue to make these alligations and or attempt to convince the child she had been abused?

Can or should the father have a therapist testify for him in court as to the damages (emotional etc) the child will experience if the mother and grandmother continue to denigrate the father to the child or in the child's presense?

If it were me, I would assert the child was in fact being abused and the abuse was at the hands of the mother. I beleive submitting a child to a vaginal exam to prove sexual abuse, when the parent knows no abuse has taken place is really child abuse. And that parent should not be permitted to be unsupervised while with the child.

The Witch

Remember . . . KARMA is a Wonderful Thing!!!

[socrateaser]

>---What do you mean by 'objective third party evidence"?

Testimony or physical evidence from a person who has no stake in the outcome of the procedings (i.e., police officer, case worker, store clerk, video camera running with consent or knowledge of both parties, transaction receipt, invoice -- but NOT a report stating a person's opinion/conclusion -- just a report of what was observed in the ordinary course of business, etc.).

[cassandragrace]

I have heard that even in cases where sexual abuse is actually occurring, there is not always physical evidence of such.

 Also, as for the testimony part, the case worker has been subpeonaed to appear at the hearing on the Friday. Although, she is not allowed to repeat what was said by the little girl in her interview with her.  She is only allowed to state her opinions/conclusion on the matter.

1-Are you saying we would have to obtain testimony from someone, or physical evidence (video, tape recording) of the BM admitting to the allegations being false??

I may be misinterpretting your words, if so, I apologize. I am just a little confused on how to prove something that never happened...never happened.

[socrateaser]

>Soc,
>
>As I've seen you suggest in the past, can the father submit to
>a pollygraph test given by an independent facility to offer to
>the court as proof of innocence in this matter? And of course
>request the mother submit to the test also?

Polygraph is always a choice. Offering to do it can frequently set the opposition back on its heels, because it means you're pretty damn certain that nothing in the opposition's allegations are true. But, it's only good when you want to contravert each and every material allegation. If there's ANYTHING true in the pleadings that could be negative, then polygraph is off the table as a tactic.

>
>Also should the father take the pollygraph prior to the
>hearing and have the results ready to give to the Judge?

Doesn't really matter, except that if you offer to do it in court, and the other side takes the bet, and you already did it, then you really have them behind the eightball, because the evidence will be instantly admitted and that could turn things around quick.

The down side is that the opponent refuses, and without their consent the judge can't admit the polygraph, however the judge can ascertain visually whether the offer makes the other party nervous, and that could cause the judge to disbelieve tha allegations -- which is what the whole polygraph ploy is all about.

It's inadmissible, but rarely does the other party know it, so it's an opportunity for a little peak into the body language of the petitioner.
>
>As for the actual custody hearing. . .
>
>Can or should the father have a therapist that specializes in
>sexual abuse testify in court to the damages, (emotional,
>psychological, emotional, etc) this child could face if left
>in the care of her mother and grandmother if they continue to
>make these alligations and or attempt to convince the child
>she had been abused?

You're talking about big dollars for an expert to testify to the what if the allegations were true, before the allegations are proven true. This is a waste of money and time at this point in the case.

>Can or should the father have a therapist testify for him in
>court as to the damages (emotional etc) the child will
>experience if the mother and grandmother continue to denigrate
>the father to the child or in the child's presense?

Same response as previous.

[socrateaser]

> Also, as for the testimony part, the case worker has been
>subpeonaed to appear at the hearing on the Friday. Although,
>she is not allowed to repeat what was said by the little girl
>in her interview with her.  She is only allowed to state her
>opinions/conclusion on the matter.

She can testify to what the child stated, but it's objectionable as hearsay, and on constitutional Confrontation Clause grounds in a criminal action. However, a child of 5 is likely not a competent witness, so the kid's testimony will likely be disallowed anyway.

What matters is whether there is any evidence of abuse and whether in the the case worker's expert opinion, this child appeared to be the subject of child abuse.

>1-Are you saying we would have to obtain testimony from
>someone, or physical evidence (video, tape recording) of the
>BM admitting to the allegations being false??

You don't have to, but the judge will give almost zero weight to any allegation from either party that is just "his word against hers," and/or visa versa.

Objective evidence is what wins cases -- that, and getting a witness to crack or contradict him/herself on the stand -- hard to do.

>I may be misinterpretting your words, if so, I apologize. I am
>just a little confused on how to prove something that never
>happened...never happened.

This is the big problem with these sorts of restraining/protective orders. They are based on only the subjective fear of the petitioning party. No real proof need be alleged, and it becomes the unreasonably duty of the respondent to try to prove a negative and rule out every possibility.

A polygraph test, or an offer to submit to one can completely blow away this sort of case, if the petitioner will consent to have it admitted into evidence.

It's always worth offering if you can say without hesitation that every single thing alleged by the petitioner is false. If you can, then I would offer the polygraph, or even advance the money and take it before the hearing and have the results available if the other party consents to its admissibility.

See my response to hagatha in this thread.

[cassandragrace]

>
>Recently, a judge granted the father overnight visitations
>EOW.  The mother did not want this and lodged a complaint with
>DSS on Nov. 2, stating that on the evening of Oct. 26 (last
>time child was with father) she found blood in their
>daughter's underwear.  She did not have these underwear as
>evidence for DSS.
>
>The mother obtained a temporary order (1 week) from DSS,
>barring the father from access with the child. The mother
>obtained this illegally, by lying to DSS, stating there was no
>court order regarding visitation in effect.
>
>The mother waited until the day this order was so expire(Nov.
>9) to allow DSS to interview child.  DSS found the allegations
>to be untrue, and when the case worker informed the mother of
>this, she said the mother became "enraged".  DSS interviewed
>the father and informed him child had told case worker that
>the mother was telling her bad things about father and
>girlfriend(me).
>
>Not 2 hours after the case worker told mother the findings,
>mother went to district court and obtained a protective order
>against father; making the same allegations and requesting a
>DSS investigation. ***Mother and grandmother failed to inform judge that this matter had already been investigated by DSS*** Father and Mother are to both attend
>hearing final protective order hearing on Friday (Nov.17).
>Father is to have no contact with child until that date.
>
>Mother has also written letter to child's doctor stating
>Father is not to have access to child's medical records.
>Father informed Dr. it was illegal to refuse him access, the
>Dr. still denied the access.
>
>Father's lawyer has filed multiple counts of contempt against
>mother for violating court order.

   We are located in Maryland

A few more questions...

 1 - Since the mother lied to DSS to obtain a letter barring father from contact with child for one week, is it likely she will be found in contempt for violating the visitation agreement? ( I know you are not a mind reader, just looking for your opinion)

2 - Are there any legal repurcussions if we can prove to or convince the judge that mother and grandmother intentionally ommitted the fact they had prior knowledge that the matter they were obtaining the protective order for had already been investigated and found to be untrue by DSS?

3 - Would it be wise for father to file a protective order on behalf of daughter against both mother and grandmother for putting her through undue emotional stress?

4 - In your opinion, does father have a good chance at obtaining custody (even if temporary) based on the mother's actions?

4.1 - What would we need to do to prove mother is injurying child with her actions? (father has not seen or spoken to daughter for nearly 3 weeks as a result of mother's actions)

5 - Father now has access to medical records (will be picking them up Friday).  Would there be any legal repurcussions for the mother for lying to the doctor's office stating that father had no legal rights to records? Or is that simply the fault of the doctor's office for denying him access without proper documentation?


I apologize if any of these questions seem repetetive, I am a little frazzled by all of this!

[socrateaser]

>Soc,
>
>As I've seen you suggest in the past, can the father submit to
>a pollygraph test given by an independent facility to offer to
>the court as proof of innocence in this matter? And of course
>request the mother submit to the test also?

Polygraph is always a choice. Offering to do it can frequently set the opposition back on its heels, because it means you're pretty damn certain that nothing in the opposition's allegations are true. But, it's only good when you want to contravert each and every material allegation. If there's ANYTHING true in the pleadings that could be negative, then polygraph is off the table as a tactic.

>
>Also should the father take the pollygraph prior to the
>hearing and have the results ready to give to the Judge?

Doesn't really matter, except that if you offer to do it in court, and the other side takes the bet, and you already did it, then you really have them behind the eightball, because the evidence will be instantly admitted and that could turn things around quick.

The down side is that the opponent refuses, and without their consent the judge can't admit the polygraph, however the judge can ascertain visually whether the offer makes the other party nervous, and that could cause the judge to disbelieve tha allegations -- which is what the whole polygraph ploy is all about.

It's inadmissible, but rarely does the other party know it, so it's an opportunity for a little peak into the body language of the petitioner.
>
>As for the actual custody hearing. . .
>
>Can or should the father have a therapist that specializes in
>sexual abuse testify in court to the damages, (emotional,
>psychological, emotional, etc) this child could face if left
>in the care of her mother and grandmother if they continue to
>make these alligations and or attempt to convince the child
>she had been abused?

You're talking about big dollars for an expert to testify to the what if the allegations were true, before the allegations are proven true. This is a waste of money and time at this point in the case.

>Can or should the father have a therapist testify for him in
>court as to the damages (emotional etc) the child will
>experience if the mother and grandmother continue to denigrate
>the father to the child or in the child's presense?

Same response as previous.