I have written to you twice before and now this is an
update and another question.
We went to court on April 29, 2005 over custody of the
children. the outcome of that was that I have the
children (daughter 5, son 2) every tuesday and thursday
from 4:00 - 8:00 and the first 3 weekends of every month
from 4:00 Friday until 8:00 Sunday.
So far, she has refused my visitation rights on certain
nights when it is not convience for her and let me have
them when she feel like it. Last week, she kept them from
me Tuesday and Thursday and this week again on Thursday.
I've called the law guardian everytime this happen and the
law guardian have written a letter to her lawyer stating
the visitation times. Last night when it happen, I called
the LG again and this time she stold me to call my lawyer
and go to court to discuss other "options".
I have kept written records of all the things that happen.
What should I be asking for in court and what did she mean
when she said "other options?
For background on your situation, I answered your prior question here
In my responses, I've advised that your outcome is really going to be determined by whether the GAL or referree carries more weight with your judge. I thought you'd get anywhere from 30% to 50% custodial time, based upon what you had described.
I think your orders are pretty decent in terms of being very involved with your kids. Not quite 50/50 schedule, but you see them on approximately 40% of the days every month (i.e., and on 5 of 7 days for the first three weeks every month). Those 4 hour chunks every Tues and Thurs are significant, plenty of time for "quality time".
Based upon what the court ruled, it appears that your GAL may not have a great deal of bite with this judge. Your GAL recommended 50/50, and you didn't get that.
In answer to your question, what are "other options", there are two ways to go, depending upon the exact nature of the orders.
If the orders state, with absolutely no uncertainty, that the kids will be in your care on every Tuesday and every Thursday, from 4pm to 8pm, then the only option to pursue right now is contempt.
If the orders are questionable in any way, you'll need to return to court to have them clarified.
Even a single word can cause question:
- Example 1: "Children may be in father's care from 4pm to 8pm on Tuesdays and Thursdays."
- Example 2: "Children shall be in father's care from 4pm to 8pm on Tuesdays and Thursdays."
In the first example, the use of the word "may" suggests that it's optional for undisclosed reasons. In the second example, use of the word "shall" means mandatory and without fail.
If you think the orders you have are so tight as to leave no room for doubt, then pursue contempt. To prove contempt, you're going to have to show that your ex was aware of the orders and willfully violated the orders without just cause.
The threshhold for contempt is pretty much the same as a criminal trial. All her attorney has to do is show reasonable doubt, and you lose.
So, I would immediately have her personally served with the court orders, so you can prove that she knew of the orders. I would also order a transcript of the hearing (if the judge announced his decision in the presence of you and the mother) to demonstrate that she was present when the judge made orders for 4pm to 8pm on Tues and Thurs.
You're also going to have to prove beyond reasonable doubt that you showed up to pick up your kids at 4pm on the days in question. So, I would suggest that from now on, you go to the exchange with a video camera running, you can just hold it at your waist shooting straight ahead. In your car a few minutes prior to 4pm, tune the radio to some news station and have the video camera running when they announce it's 4pm, and then step out to get the kids.
If your ex releases the kids to you, just erase the tape and get it ready for next time. If she doesn't, advise her that you're recording, state the date and time, and ask her why she won't release the kids. Point the camera upward so it captures her face. Be sure to tell her that you don't agree and you would like to exercise your custody. If you simply walk away without disputing her decision, her attorney will point out that it appears you agreed to waive your custody.
Once you have a few of those incidents documented very well (and after the point you can show you absolutely knew about the orders), you would have a decent shot at contempt.
However, if your orders are not crystal clear, you should immediately return to court to clarify the orders in that there are already disputes over how Tues/Thurs exchanges are to occur.
While you're at it (in terms of clarifying orders), you may want to make sure the orders clearly define what the first and last weekends of the month are. For example, if August 1 is on a Sunday, is that the last weekend of July, or the first weekend of August? If your ex is pulling this crap with Tues/Thurs, you're bound to have problems with those weekends too.
So, at this point, you've got some basic housecleaning to do on enforcing these orders. Sucks that you have to continue to pay attorney fees on it, but all this is pretty common in contested custody cases. Judges don't like it when parties refuse to follow orders, so I don't think you have much to worry about in eventuallly forcing your ex to comply. If she continues to rebel after getting warned by the court, it'll eventually be grounds for modifying custody.
All in all, you've done extremely well with this parenting plan. Most noncustodial fathers get one weekday and alternating weekends when the mother has been primary caretaker and she is going for sole custody. For the first 3 weeks every month... you spend quality time with your kids on 5 of 7 days. That's pretty awesome for the kids and your relationship with them. I know it's not what you wanted, but it's not devastating either.
You now get to move on with your life (after doing some quick work on current problem), have a happy and peaceful home, and enjoy an unfettered relationship with your children.