BPDFamily.com

It's been a little while since I've posted.  Not much has changed over the months.  I'm interested in hearing how the group would handle this situation.

Currently separated since since July 1, 2012, the UnBPDw has slowly been chipping away at my limited custody which is every other weekend and one night dinner a week.  This custodial arangement is left-over from the false DV filed and dropped this summer.  The last 3 court dates have been continued with no change to custody.  We don't have a court ordered holiday schedule.  We have the Ordered custody schedule right now, with dinners on Tuesdays.

Here's the question:  UnBPDw won't let the kids see me xmas eve or xmas day.  The kids asked me if they could open presents xmas morning after opening at UnBPDw's house.  I've been texting her and asking.  She said no, that her attorney advised her to follow the court order.  So I said great, I'll pick them up at 3:45 pm for dinner on Tuesday, which is in the court order, and is also Christmas day.  She said no we gave you an extra day on Jan. 3 and that is your xmas, which is something that was added, but not in exchange for xmas eve and day.

What should I do?  Let it go, do nothing?  Attempt to protect my Dinner with the kids?

She's starting to play tricks by asking for dinner swaps and then not agreeing to a new dinner day, and I spent hours with my attorney trying to get a make-up day.

Any feedback would be great, also her attorney is threatening an Exparte hearing if I continue to press the issue.

Thank you,

santhony

My ex did the switch and deny trick in the early days of our separation and divorce.  In the initial months somethimes she just never showed up for my mid-week 3 hour evenings.  Lawyer said it wasn't pursuing, expecially since in the early months I lived in the house and she in a shelter at an undisclosed location, just a P.O. Box. :'(

About 2-3 weeks after our final decree, she asked to trade a day in spring break week, previously she said she would be taking an unspecified vacation then, so I figured she had cancelled it and of court not told me.  So I was to get her Friday overnight at the end of that week.  So I arrived at daycare and 6 yo son was gone.  I called and she was already a couple states away.  Not only did I lose that traded overnight, son missed his kindergarten class the entire next week and my contempt case was dismissed since she had a "technical inability to comply' with the order.  We had just started post-decree life a few weeks before and so magistrate ruled the prior temp order (which she did not comply with) was no longer in effect and she had an "inability to comply" with the new order requiring 30 days notice.  So she failed to comply with either one and she skated without consequences due to the court looking for ways to not find her in contempt.  My lawyer had said it was a clear slam dunk and was stunned too.

My points are:  (1) Beware of traded time.  It is best to limit agreed trades to times when YOU get the traded time FIRST.  Otherwise you won't get your end of the trade.  (2) You can try to stick with the order but don't expect success every time, you may or may not get it, from our perspective it seems the judges are there to try to ease the parents through the process, not to call them out for serious misbehaviors.  Judges expect conflict and let some of it happen during the divorce, but they expect the conflict to die down once the issues are settled.  So often contempt cases and serious misbehaviors don't get much judicial response until after the divorce is final.  My lawyer said post-decree Contempt of Court cases are viewed much more seriously.

If you have your Tuesday evening and no holiday time is included in the schedule, then you get it.  However, how to enforce it?  Carry the order with you at all times.  If she is a no show at the exchange location, then call an officer to ask for assistance.  You can show the written order.  (Especially if you expect conflict, don't go alone, it's too easy for the ex to respond by making false allegations and then we're on the defensive trying to avoid wearing orange jumpsuits for a weekend or a few months.)  Thre's no guarantee, but the officer may have enough authority with ex to get her to comply.  Even if the officer won't help - or tries and then gives up and tells you to handle it in court - you can at least ask for the oficer to make a report of the incident and then you can go to court filing Contempt of Court using that incident report as support of your parenting being blocked.  Whether that will succeed, I can't say.  A lot happens that is unfair to the more reasonable and behaving parent.  But as long as you don't expose yourself to risk of allegations you can't defend against, you just might get a listening ear from the judge.

We don't get much, if any, credit for our good behaviors and the misbehaving parents often don't get consequences for their misbehaviors.  You can be appalled, frustrated and outraged at the unfairness, but judges allow much of it so be careful not to lose your temper or say anything rash that could be twisted to make you look bad.  It's almost as though the courts expect more from us and less from them.  Not fair, but often how it works out.

How old are the kids?

Now it's probably too late for an ex parte hearing but if it wasn't you could call their bluff and demand one.

From:  Santhony

To:  Ex

cc:  Both lawyers

I will arrive at 3:45 p.m. tomorrow (Tuesday 12/25) to pick up the kids and keep them for 3 hours per the court order.

If you refuse to let them come with me to celebrate Christmas and open their presents, I will present that at our next court date as evidence that you are continuing to block access.  The kids are asking to be with me on Christmas, and it is in their interest to have access to both parents.

Then whatever her response - or if she doesn't respond at all - show up at her place at 3:45 tomorrow, with an non-family adult to observe, and if she denies access immediately write an e-mail to your lawyer documenting what she did.

From:  Santhony

To:  Attorney

I went to Ms. Ex's home at 3:45 today to pick up the kids per the court order, but Ms. Ex blocked access and did not allow them to come with me.

Please file an appropriate motion tomorrow to hold her accountable for failing to follow the court order.

It's a good test to see how far your ex will take it, and also to see if your attorney is prepared to go to bat for you.

FD and Matt,

Thank you for your response, all are good points and I will proceed to pick-up tonight at 3:45.  I don't expect them to be present, so I will file all the paperwork at the PD and will not ask them to pursue.  It is disappointing that my attorney is too busy or "put out" by this stuff.  I constantly have to remind him that she is crazy and I'm making all the concessions.  I will send the letters tomorrow and I've interviewed two other attorneys.  I just get tired being the dummy sitting around waiting for her to decide... .do now I'm just sticking to the order.

Merry Christmas and thank you very much.

SAnthony

Also, the longer you stay in the alternate weekend slot, the harder it will be to get out and move up to 50% or more.  The problem is that with many courts they see temp orders as just temporary and often they are just a matter of months.

However in high conflict cases such as ours they often last as long as the divorce case, for us generally two years plus or minus.  One or two years is a long time, long enough for the evaluators, lawyers and courts to reason, "Let's not distress the child by changing the schedule, if it's been in place this long, surely it must be working."

A topic I mentioned many times is that we don't want to ask for a "fair" schedule.  If we ask for 50% and ex asked for 99.99%, it's too easy for the evaluators and judges to say, let's split the difference.  Some judges will say, "Neither of you will like my decision if this goes to trial. Why not find a way to settle?"  It appears that this is also a reason cases take so long, the courts expect most cases to settle, hoping the parents both realize that the backlogged court process is taking too long.  Unfortunately, the disordered parents often start with a favorable schedule and see no reason to settle since the longer the case takes, they longer they have the favorable schedule.

So if we don't try to be 'fair' then what do we do?  We ask for what we feel is best for the children.  For example, rather than start with simply asking the minimum we want, we can phrase it something like this... ."Your honor, I feel that the best interests of our child(ren) are that I have majority responsibility (custody) and time (parenting).  However, if the evaluators or court feel this is not the case, then I believe I can do reasonably well with 50% parenting, making sincere efforts to cooperate and share in parenting.  But if the court wishes to relegate me to minority time, I am concerned that the blocked parenting and my spouse's lack of sharing and cooperation which have occurred thus far during our court process will continue and the child(ren) will suffer while we are in and out of court in the years to come."

Since your temp order is likely to continue for many more months or even longer, I suggest you get such a statement on record with the court.  As I wrote above, the longer she has majority time, the more inclined everyone will be to leave it that way.  But since whatever order you have is likely to continue for quite some time, you need to at least get the standard holiday, vacation, telephone contact, etc added to the order.

Just beware of any purposely vague phrases such as "mutually agreed location" or "reasonable telephone contact" since those can easily be reinterpreted by ex in ex's favor.  In high conflict cases, the less vagueness, the better.

Mine was a two year divorce.  The court's social worker's report (after months getting the temp order where I was limited to alternate weekend parent and months for the failed mediation) recommended I get 50% parenting.  By then we had been separated for 15 months and the divorce was in its 11th month.  Court did nothing to the order, but ordered a custody evaluation.  That took 5 months (some take much longer) and CE recommended ex 'immediately' lose temp custody and that if we attempted Shared Parenting and it failed then I should be custodial parent.  Court still did nothing to the order, but ordered a settlement conference and when that failed it scheduled a trial for the 22nd month of the divorce case.

FD,

Great... .insight, wow, if only the guy charging me $350 an hour knew how to convey information that way to me, perhaps I'd have a better plan in place.  That is my worst fear is accepting the status quo, however you know when I distrupt the system or question the crazy behavior, I get a lot of "push-back" from my attorney, with statements such as "pick your battles", "you don't want to always drag her into court", "we'll show the other side we can cooperate", or the worst one is when he makes the other side's argument sound reasonable and doesn't offer a counter arguement.  Two interviews last week with new counsel helped ease the tension.  Yesterday I sent a confirmation of of Pick-up email throught the Family Wizard and then I arrived at the pick-up... .no kids, which I knew and then I went to the PD and filled out the visitation violation.  Today I want to file the Contempt of Court.  I feel like my attorney does not want to be bothered with this.  I also think my ex is planning on sending the kids with me tonight, as we often switched from Tuesdays to Wednesdays because my mother can pick-up kids on Wednesdays, but the Order reads Tuesdays.  I want to keep everything simple and black and white, and focus on my ability to perform under the orders and then if she asks for any changes I can say no.  I'm requesting that my attorney provide me a written statement from opposing party outlining the suggested change and he is not to verbally agree to any changes nor will I agree via text or Family Wizard.  I'm trying to figure out how to file the contempt and I did call the 730 Evaluator to report the missed exchange yesterday.  It was really tough yesterday with my kids texting me about when they were coming over to open presents, but they never came over.  I really feel bad for them, I sense the fear in their voice and now my 13 year old calls me from his cell phone outside the house, which is smart.

Thank you again for the honest feedback from your experience.

santhony

I'm sorry you didn't get to see your kiddos on Christmas Eve or Christmas.

I'm surprised that your attorney didn't address a holiday schedule in your temporary orders. How did you handle Thanksgiving?

I think often times in these situations, we have to learn not to place so much value on the actual holiday. In my husband's situation with his BPDex, he learned to celebrate birthdays and other special days (Thanksgiving, Christmas, etc) usually on the Saturday following. It didn't always make sense that it couldn't be split, but my stepdaughters' Mama never really learned how to properly share - even when the kids vocalized that they wanted it to be a certain way (i.e. Christmas spent with both Mom and Dad at certain points).

I hope that you can get this holiday stuff spelled out in your final orders. My husband's divorce decree/parenting plan is very, very specific right down to the minute (of every drop off/pickup). She struggled with applying her intrepretations of what general statements meant during the divorce proceedings/temporary orders. i.e. "Thanksgiving Day with Dad" was interpreted to mean "1:00pm - 4:00pm."; and so the final court order spells it out as "Thanksgiving Day with Dad from 8:00am in the morning until the following morning at 8:00am"  

High Conflict situations need specifics - leaves less room for parents arguing over logistics and more time spent with the kiddos. :)

~DreamGirl

I heard the same from my lawyer, pick your battles, do you want a $5K divorce or a $30K divorce, etc.

I recall one court appearance I had typed up 10 or 11 ongoing issues.  We only got to discuss 3 of them as I recall.  My mistake was not listing them in order of priority, instead I had grouped them by category so they theme didn't seem disorganized.  My mistake.  Nearly all my hearing were short ones about a half hour, not enough time to discuss everything.

Another mistake was letting ex 'agree' to do something without the judge making it into an order.  I had to discuss one topic - access to son's therapy records during the temp order when ex had temp custody - three times in court.  The first time I was told I had statutory rights, didn't work.  Second time ex agreed to sign paperwork so therapy agency would release records to me, but she never did, actually she raised new HIPAA privacy claims about her conversations with them about me that made agency even more reluctant to release information.  The third time was just to address that one issue, and judge made specific access an order.  Delay: 13 months from when I found out about the counseling to records release.  It was another 4+ months before agency agreed to let me bring son in for sessions.  By then he was 5 and had been having sessions for over a year and a half.  (Of course, his mother was using them to make her "unsubstantiated" allegations.  Call it what they were, they were actually false allegations but agencies never call anything true or false, just indirect terminology, founded or unfounded, substantiated or unsubstantiated.)

So let's talk about what seems to work in choosing and dealing with attorneys, when the other party has BPDish behaviors... .

First, I don't remember if you have read "Splitting", but if not it's really good, both for you and for your attorney.  The author, William A. Eddy, also has a good web site, www.highconflictinstitute.com.

Second, I would suggest you write down your objective(s) for the case, and maybe share them here to get some feedback.  You want them to be very clear.  For example, my objectives might have been:

* Primary residential and legal custody

* No child support

* No more than $X per month alimony for no more than 2 years

I'm not saying those should be your objectives, only that it will help if you can define them very clearly, and make them truly objective (not vague).

Then when you are sure exactly what would be "success" for you, have a frank talk with your attorney about them.  Tell him - don't ask him - what your objectives are, and ask him for a strategy (not a guarantee) to achieve them.  His reaction will tell you a lot... .

Many attorneys will focus on talking you into lowering your expectations.  There may be some good reasons why your objectives aren't realistic, but evaluate that carefully - don't get bullied.  If your attorney just finds it easier to convince you to lower your expectations, than to give you a plan to achieve them, he's a loser and the sooner you find a winner the better.

If he gives you a plan to achieve them - maybe it will take him a day or two to get back to you on that - and if you think it's a good, sound plan, then great - put dates to the steps and proceed.  As things happen, the plan will evolve - that's normal.  But if he wants to "wing it" all the time - he doesn't follow through and doesn't prepare well - he's a loser.

One mistake many of us (including me) make is staying with an attorney too long, after it's clear he's not the right guy.  The relationship between the client and the attorney seems to mimic the relationships we had with our exes - somewhat abusive - our needs aren't being met but we're determined to make the relationship work so we give up all our needs.

Your concept of making the negotiations formal and written is absolutely right.  Nothing should be agreed verbally - "That's an interesting proposal.  If you put it in writing I will review it with my client and respond in a timely way."  If your lawyer doesn't seem to understand why that's important - why it's a loser's game to make verbal agreements - he's a loser.  Don't back down on that issue - make it clear - ":)o not make any verbal agreements.  Get a written proposal from the other party's attorney and advise me and I will decide how to proceed."

Matt, FD and DG:

DG - point well taken on adapting to monumental days... .which by the way made me hate all holidays as a kid with divorced parents.  I'm seeing that perhaps I can make-up for lost time or holidays in other ways, such as vacation days, added weekends, in fact a focus on more custody during the summer would make sense, because I can pick my vacation days and the kids are out of school, plus not as much presure to attend other family events and rush the kids around town.  Great points and probably well received by other professionals, but only as long we get the consession approved prior to agreement, or else it will never come... .as I've found out recently.

FD - You have lived my case.  I was preparing a list of points to negotiate at the next hearing and your suggestion of priority is great and often overlooked.  I have to add, my Ex comes from a wealthy family and she will be paying me alimony and child support, however that comes with it's own problems, first, money is always at the top of the list because I was cut-off 100% upon the split and then spent $12k to defend the false DV, so I've been climbing financially to make ends meet.  Consequently custody gets pushed down the list, not far, but enough to lose some teeth in the Stipulation.  Also we now stipulate to my attn. fees being paid, which is really becoming a conflict of interest and I plan on not signing any stipulation which outlines his fees.  He's been paid a lot by her and it has to end.  Seems I get 4-6 hours to negotiate, of which she spends time adding nonsense points such as "homework completed during dinners".  Every hearing has been a complete surprise, last one, I was prepared to testify and present our case, and we ended up settling until March 6th.  Nothing was accomplished except two vacation days for me in two weeks... .which btw - she used to justify not delivering the kids for xmas day or eve, stating that we had holiday schedule, so no dinners... .ha, she just made it up, as my mom says who refuses to treat BPD patients as a psychologist, they are dumb as a fox when it comes to this stuff (sarcasim).

Matt,

I read and I'm still reading "Splitting", also just finished a 10 week course on BPD through BPD Family Solutions.  I am staying with this attorney too long, I'm saving to retain a new attorney.  Just spoke to an attorney who briefly outlined a plan over the phone... .for free, so I know it can be done.  My expectations have changed, but it takes unconventional research to find out acceptable concessions and no two cases are alike.  Someone gave some good advice based on their experience.  He said, I told my attorney, let's have the judge decide.  It was from that point on he was able to adjust his expectations because over time, he got resolution for his requests and eventually he said the judge started to get to know him and he know the judge, things went his way and also he saw things that wouldn't go his way so he left them off the table and followed the successes he had with the judge. 

Thank you again, I'm so grateful for the responses, truly priceless.

Steve

Yes, lawyers and everyone else in the judicial system love settlements.  Settlements between reasonable spouses generally reduce the conflict and courts love them because they can't be appealed or reversed (supposedly).  However, in our high conflict cases, a settlement is too little, too late and never enough.

I recall when I arrived for trial nearly two years into the divorce.  Minutes before trial I was greeted with the news ex wanted to settle.  (She had delayed the case because the temporary order favored her.)  Everyone seemed to be rooting for a settlement now that she was on board with it.  I knew it was crocodile tears, though, she was just trying to avoid a trial.  I stated my ground rule, that I would be Residential Parent for School Purposes.  She pleaded but I said, it's either that or trial.  (I felt a trial would probably have gone well for me but also knew it was not a sure thing.)  Even both lawyers said RP didn't mean anything. (Yeah, it was lousy not getting support from my lawyer.  )  I knew that she was very possessive.  I knew the custody evaluation was strongly in my favor.  However I also knew the court wanted a settlement.  And a settlement meant Shared Parenting.  I felt her being Residential Parent when the custody evaluation report was clearly in my favor would have tilted the case in her favor.

Within two months after the final decree her school notified me that there had been too much conflict at child pickups and so they were rejecting my application for son to stay in his kindergarten class until the end of the school year.  I was given *1 day* to enroll him in my school district about 6 weeks before the end of the school year.  If she had been the RP then the school wouldn't have been able to wash their hands of her chaos.  If she had been the RP then her behaviors would never have been exposed so clearly.

Well,

I just made a substitution of counsel on Friday.  There were many things that got me to this point, but above all rather than seeing that my existing relationship with my attorney was left-over from, what I call my "old self", which has only changed into the "new self" over the last few months.  I really started to hear what supportive and professional dialogue sounded like.  I interviewed several other attorneys over the last couple months and waited till it felt "right", perhaps it was that gut feeling that lost over the last few years.  I'm starting to see that I make excuses for people and I expect them to see it my way and act the way I want them to even though I'm listening to someone who does not sound like they are prepared for my case. 

I haven't worked with this attorney, so I may end up posting another bad experience, but he said so many things that I hear on this board, not to mention he keeps copies of "Splitting" behind his desk for clients that walk-in and are confused or tramatized.  He keeps a copy on his desk and often refers to it.  He was very calm in stating that he just puts these high-conflic people on the stand so the judge can see who they are, he talked about fighting for me and my children.  Many of the arguements my old attn. had be forcing me to accept was absolutely unacceptable to him, for example the judge originally mentioned the custody order currently in place reflects a plan where the kids would not be shocked during the start of a new school year and my new attn. responed by saying "bull****" they have already been shocked by mom.

He talked about keeping things very simple and narrowing down our objectives and strategy to simple terms and not get distracted by smaller items.

He's very critical of 730 Evaluators and critical of Judges who give the evaluators too much power.

It has been a long haul.  I feel a lot better, it's challenging to change and takes work, but I think I'm on the right track. 


Thank you again for all the feedback, it really helps.

santhony

He sounds to me like a winner!

Can you get from him a solid plan for how you will proceed?

And does he buy into your objectives for the case?

Thanks Matt, Yes.  Meeting this week to discuss the plan, and he reminded me that my objective was 50/50 custody, I actually lost sight of that and he was he was unwaivering in his position of 50/50.  BTW - 50/50 is in the best interest of the kids and I have plenty of time for the kid's school, activities and my work. 

I'll keep you posted.  Thank you again.

santhony

Excellent! Love the way you sound focused and determine ed.

Just got a call from my prior counsel.  I was dreading that call as I envisioned it being very confrontational; however it was not and heard a different tone in his voice.  I guess it doesn't matter, by law they have to release my file to the new counsel.  He should have never taken the case, he's not a custody attorney and I've learned my lesson.  Again, asking tough questions regarding the issues at hand has been a learning experience for me.  I can't change the past, I've learned from it and now I have a new direction with my representation.  My prior counsel is asking me to sign a motion for his request for fees from opposing party.  I agreed, but I'm hesitant, as we're 8 months into a separation and I'm still sitting with temporary custody orders stemming from the false DV that was thrown out 7 months ago.  The situation could be better and could be worse.  I feel I'm on the right track now.

Here's my new mantra:  you can't expect to hit a baseball if you don't go to the batting cages and my life events are no different, I can't expect to handle these situations any better if I don't practice, I've been getting a lot of practice lately.

Thank you again for all the support and advice.

santhony

He wants the other side to pay his fees - why?

It was wrong and unprofessional of him to take the case if he's not qualified.  (It may have been a mistake on your part too, but you're not a professional in this field - he is, so it was his responsibility to only take the case if he could do it well.)

I wouldn't do him any favors at this time.  Focus on what is best for you and the kids.  Later, when the case is settled, if you decide to throw him a bone, that may be right, but for now I would tell him, "Let me focus on getting this case back on track.  You go find some clients you are able to serve well."

Damn it Matt, I hate when you do that.  I know that is the right thing and I agree.

I'll tell him.  I need to use the statement, "I'll think about it", better yet, "no" would have been more appropriate.

santhony

20/20 hindsight is so cool!

Yeah, "I'll think about it." is pretty useful.

Lawyers are so good at getting theirs.

I've also hired an attorney, and later realized he wasn't even remotely qualified - he basically lied to me about his experience with BPD (he said he had some).  When we're looking for an attorney, we're pretty vulnerable - hurting over the end of the marriage, and worried about the future.  So somebody can tell us what we want to hear - "I know what I'm doing and I'll take care of you." - and we're eager to believe it.  It's not ethical for them to do that.

You can decide for yourself what if anything you believe is right to pay him.

Here is the email I'm sending him:

Per your phone call today requesting I sign a Motion requesting your fee from opposing counsel.

Let this email serve as my statement that I do not support a motion for your request for payment from opposing party.  I cannot in good conscience support this motion.

For the last eight months I feel I have not been adequately represented by you, I have not received the professional attention the case deserved, I have not been adequately informed of my choices, and above all, it is clear by your lack of knowledge in custody and Evaluations that you should have excused yourself from this case when the matter took this direction.  I often questioned your choices and it was met with hostility, anger and frustration.  I've felt verbally intimidated both in court and in your office.  Finally when I was told that my case was not getting the attention it deserved because of a lack of payment, which is untrue, you received nearly $12,000 (just estimating, need to look at bill) I was forced to borrow money to retain a more qualified counsel.

My suggestion would be to focus your efforts on your existing client base, hire a legal assistant, be honest with your clients regarding legal expertise and treat them with more respect and professionalism.

Several of the Stipulations were signed under duress and coercion, without full knowledge of the consequences of those decisions, of which I'm finding out are going to make it much tougher and more expensive to correct the damage that was done.  

The most important point, however is that you were instructed to follow-up regarding payment to the 730 Evaluator and you did not follow that instruction on three occasions.

Please do not contact me regarding this matter and please prepare the file for delivery as soon as possible.


santhony

Since you have new counsel, did you seek advice about this?

No.  I sent the email already.