Our temp hearing for modification is next week, need advice

[hell0kitty]

So, if you read our back story, you will see that I am with a man with an exBPD who he shares a 6 year old with.

They have a parenting plan in place, but it is very vague and she uses this to control when he sees his child, and to just cause regular conflict.  Everything came to a head two years ago when he and I got serious and she told him she would make him pay, and she filed a false DV order which was dismissed for lack of evidence.

We spent the last of our money on an attorney to file the papers for the temp order.  He made it seem like if we filed a minor modification, since our parenting plan was so vague, it should be a pretty easy thing to make happen.  We got her response today.  It is a two page essay about how she has been attending DV counseling and parenting classes for the last two years trying to recover from the years of abuse.  She claims that he threatened to kill her twice etc and that she wants to have the changes denied.

My question, I know many of you have been through this first part, the temp order, standing in front of a judge.  This is the temp hearing.  What can we expect? 

I know that he gets a chance to speak, do we bring evidence or is this just a hearing where a statement is made.  Do we even address the false DV in his statement, most of her statement is made up of it, but there is no evidence and never has been.  I mean, reading her essay and all of her years of DV therapy and how they helped extract her from the business (when she robbed him two years ago, turns out it was an extraction by a womens advocacy group for DV victims.  She convinced them she was in danger and needed help to escape.  She even said they paid her rent and helped her set up a new business.)  If i didn't know him, it all sounds pretty convincing just because she has gone to such great lengths to make her story. 

I just don't know what to do or what to expect.  Any advice much appreciated!

[livednlearned]

One thing to keep in mind -- for us, being in court is very emotional. For judges, not so much. There are technical points of law that they default to. Ls tend to try and ratchet up the emotion in favor of their client's needs, and that works to some extent, but Ls are also working within the constraints of legal points. The emotional stuff is largely for the benefit of their clients, to show that they are working hard on their behalf.

Meaning, exBPD may want to open a can of worms about the DV and it might be very emotionally persuasive, but the judge might say to exBPD's L, "The DV charges were found to be baseless, therefore if you want DV to be grounds for objecting to minor modifications, you need to file xyz. Meanwhile, the minor modifications are temporarily approved until Day Date Year pending new evidence from exBPD."

As for the false DV allegation -- I do think your L needs to make a strong, simple statement about the facts. "The DV order filed by exBPD was false, and was dismissed for lack of evidence. The issue before the judge today is to make a minor modification to the parenting plan because a clear order with clear expectations is in the best interests of minor child."

Something like that. Address the false allegation and point out it is unfounded. Make it as brief as possible then move on to the task at hand. A hearing can mean many things -- it sounds like your L and her L will sit before the judge, then each will have a chance to speak to the judge on your behalf. The judge may ask a few casual questions like, "How is Minor Child enjoying school?" If it's a minor modification, chances are your SO might not say much, if anything. The L will do most of the talking. My L always brought files of evidence with her just in case, and your L will probably want things in case s/he needs it for reference (like the false DV charges).

In my hearings, other people were present, and while waiting to go before the judge, I could listen to what others had to deal with. If you feel like it might help calm your nerves, you could always go down to family court to see what it's like. During my hearings, no one asked me why I was there or what I was doing. I'm guessing it's the same elsewhere? If that's too much hassle, the next best thing is to read Splitting by Bill Eddy. He offers a very helpful account about the game going on in court, especially with high-conflict BPD/NPD types.

It's very hard to remain calm when you go in front of a judge. I was a basket case. But it's easier now that I see the pattern and it sounds like your situation might have some similarities. Your SO wants something minor taken care of, and his exBPD is making a sh!tst@rm out of nothing, so off to court you go. Everyone in the room knows it's a minor modification and shouldn't need a judge, but go figure. There you are anyway. Hopefully everyone sees that someone is into drama (exBPD) and someone (your people) are into solving problems.

[Matt]

In my state, it is a crime to make a false criminal accusation.  You might want to check that out - your state's laws are probably online so you can check it yourself, and print out the relevant law.

It may also be against the law - that is, a crime - to make a false statement in official court papers, like the other party's response where she accused him of DV.

If there is evidence which shows that her accusation is false, that may be key.  It may even be possible to file a response to what she wrote, before the hearing.  Or bring the evidence to the hearing and be prepared to give it to the judge then.

"Your Honor, in her response to my motion, Ms. Ex stated 'Blah blah blah.'  I have evidence her which shows that her accusation is false.  She is therefore in violation of the state criminal code section such-and-such.  I ask that you find her in contempt for submitting false information to the court, and refer this matter for criminal prosecution."

Put her on the defensive and let her know that every time she brings up the DV issue you will turn it back on her.

But do that quickly, and then go to the matter at hand - the parenting plan - and state the key reasons why the court should approve your motion.

Will you be represented by a lawyer at the hearing?

[david]

"It is a two page essay"... .    My ex used to send me emails accusing me of all kinds of things. Do you have proof that she ever attended any DV counseling ? my guess is she may have gone to a few and then stopped when she wasn't getting what she was seeking (I don't try to figure that out either because it will never make any sense) Bring the essay with you to court to show that she is still making threats and false allegations. Show the conflicts that have occured because of a vague order and present an order that spells things out in an effort to minimize future conflict. I have found that going along with ex's allegations to the point of acknowledging her perceptions and then offering solutions in front of a judge works well.

I've had three protection orders filed against me by ex. The first one took me off guard and I was stunned. No proof of anything so a one year order was granted which excluded me from following, staulking, or physically assaulting her. My atty said we won ? Judge was covering his butt.

The second one ex decided to withdraw the petition in front of the judge. I was having problems seeing our boys school bags and school work because I was picking the boys up at her place. I proposed that I pick the boys up at school so I would be at least 3 miles away from ex during pickups. The judge liked the idea and asked ex about it. I could see that ex was not happy but she was smart enough to remain composed and agree. I never agreed with her accusations since they were false but I offered a solution to her alleged problem.

[livednlearned]

Matt and david are both making excellent points -- and they've both been falsely accused of DV so know what they're talking about. If you do have an L representing you, ask the L what s/he is going to do about the false allegations and the essay. Be proactive like david and Matt suggest, and don't rely entirely on your L to do the right thing. She might need you to light a fire so she brings her A game.

The fact that your L says that the filing of a minor modification should be relatively easy to make happen -- that's a  , imo. It just doesn't work that way with BPDs. If your L doesn't understand BPD, then you need to push your L to do some of the things Matt and david are suggesting. Prepare for a good offensive strategy, and get your L on the same page.

For example, look up the laws that Matt refers to, and see if you can prove whether or not exBPD did attend DV counseling. That might require a subpoena. Ask your L what the judge is like (how does the judge treat DV cases, does the judge have kids, is the judge male/female, etc.) and how the judge tends to rule in similar cases. Ask the L how he has handled similar cases before, and what happens next if the modification is not granted.

If there are other examples of false allegations, tell your L about those too and ask him if he has a plan for how he will deal with them.

[Matt]

Prepare for a good offensive strategy, and get your L on the same page.

These two simple points are probably where most of us have struggled in similar situations.

A good "offensive" strategy doesn't mean fighting fire with fire.  It means shifting the conversation from "She says he committed DV and he denies it" to "She is making accusations which are not supported" or even "accusations which have been proven false".  Shift that bright light from shining in your face to shining in hers - put her on the defensive - ask for consequences for her behavior.

Watch how skilled public speakers handle situations like this - there's a very specific technique called "pivoting".  When the subject of DV comes up, you have two things to do, and you need to do them both very strongly and in very few words.

First, repeat the accusation and make a very clear denial.  "Mrs. Matt has accused Mr. Matt of - quote - 'throwing her down the stairs' - unquote.  That accusation is false and is not supported by any evidence, and the police report from that night proves that it is false."

Second, and without pausing for breath - so the other side will not have a chance to interrupt and argue - this is the pivot - re-state the issue to focus on the other party's behavior.  "Mrs. Matt is continuing to make this and other false accusations, in court documents and under oath when she was deposed, which is against the law - a crime in our state.  We ask that she receive immediate sanctions and that she be instructed not to make further false accusations, and we also ask that Ms. Ex's-Attorney be ordered not to assist her in making further false and unsupported accusations."

The other side will have to reply to the second part, not the first.  You (or your SO, or his attorney) will have gotten off the defensive and gone on the offense, without ever making any accusations against his ex, just pointing out what she has done right in court for all to see.  Her attorney will have to focus on the fact that her client has just been shown to have broken the law.  Attorneys have an ethical obligation to protect their clients from criminal liability;  if Ex's attorney doesn't handle it right, she may find her client facing criminals charges (at least theoretically - not actually very likely but it could happen).  She (ex's attorney) will have to focus on that issue - protecting her client from that risk - and will not be able to go on the attack effectively til that is laid to rest.  And she (ex's attorney) will probably instruct her client not to make any more accusations without evidence.

The other key point LnL makes here is that all the good strategies and tactics in the world don't matter if the attorney and client aren't in synch.  Many family law attorneys are weak on this issue (DV).  They are not criminal defense attorneys, and family law courts don't really deal in "proof" or "guilt", so they don't think in those terms.  They just want to settle the case.

A family law attorney who has good experience in cases where the opposing party has BPD or another similar disorder will understand that the false accusations have to be dealt with;  you can't treat it as "he-said-she-said" or "Who knows what really happened?" or "Can't we all just get along?", because that approach will reward the party that makes the most extreme accusations.  The accusations have to be confronted - the accuser has to be confronted - she (or her attorney) has to be made to either back down or look foolish and dishonest.

One more point... .I mentioned, referring to my own case, that my wife repeated her false DV accusation under oath, when she was deposed.  This is a tactic recommended by my friends here.  I filed a motion to depose her, and her lawyer responded in kind, and my lawyer agreed.  So we were both deposed (questioned by the other attorney under oath) for four hours.  My wife was deposed first, because we filed the first motion.  My lawyer and I had prepared carefully, so she had detailed questions in a carefully-thought-out sequence.  My wife had two choices:  either continue to tell the false story, and then that would be on record and we could prove she had lied under oath;  or tell the truth, which would be admitting she had lied before, including in court documents.

She chose to repeat her lies, and it was obvious after four hours that she was lying.  Looking at the transcript later, we found more than 40 false statements, most of which we could prove.  So if we had gone to trial, she would have been shown to have perjured herself - a crime.  Her lawyer - again, with an ethical obligation to protect her client from criminal liability - became very eager to settle, and we got a better agreement than they had been open to before.

The reason I'm talking about this is that it can be a very effective way to deal with false accusations.  The cost is several hours of your lawyer's time - in my case about 6 hours to prepare and 6 for the depositions.  (By the way, when I was deposed, I just told the truth, and they were done with me in less than two hours.  No big deal.)

My first (incompetent) attorney never mentioned this as an option.  When I suggested it to my second (more competent) attorney, she agreed and made it happen.

[livednlearned]

Just curious, too -- why only a minor modification to the parenting plan? Are you both ok with the current visitation schedule?

[ForeverDad]

livednlearned made a good point.  What was the purpose of asking for minor modifications?  Were you thinking minor changes would not trigger an overreaction from her?  Well, you got your answer!

I'm quoting below a post a make every so often.  Sometimes we have to do the hard thing, set down our sense of playing fair and being overly fair and start playing hardball like the disordered ex.

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.

First, her response will likely be considered non-responsive, hearsay or just not very relevant.  No guarantees of course, she will of course be playing the victim role and no one can predict how gullible - or cautious - the court will be.

• Incidents related in court generally are relevant or not 'stale' only if they're from the past 6 months or so and not a demonstrated pattern.



• If he is allowed parenting time without a supervision requirement, then her essay is virtually meaningless, he already has time with the kids.  If he was seen as a danger to the children, it would have been addressed long ago.  The fact that she is responding this way only when he started seeking to reduce her control shows she was just posturing.



• Courts often view claims of DV as affecting adult behaviors.  Strange as it sounds, courts seem to believe it's possible for a parent to be a lousy adult but an okay parent.  So unless her claims were about his parenting behaviors, it's less likely her essay of hearsay will have much impact.



• BF needs to speak up for himself, not let her allegations go uncontested, even bring solid citizens who can vouch for him.  (My family court has small hearing rooms, so no spectators, others had to wait in the lobby.)

How well do BF and you trust the lawyer?  As I look back, I think mine didn't speak up much in my defense.  He was more like, I'll walk you through it.  Sorry, we don't need handholding, we need a strong case to be convincingly delivered (in a very short time).  He told me not even to speak at the hearing.  Yes, I know he didn't want me to say something wrong that would damage my case, but her misbehaviors (3 months blocked parenting and multiple allegations) were not given the prominence or consequences they needed.

Also, be prepared to give reasons why the order should change.  Less dependence on ex's whims and moods of the moment, why BF wants more time with the kids, etc.  He's facing a court that may be reluctant to make significant changes to the parenting schedule without clear reasons for a change.  As my lawyer said, courts don't want to 'upset' the child by making schedule changes.  (And my thoughts were, courts shouldn't want to 'upset' the child by NOT making schedule changes.)

[livednlearned]

Just occurred to me that her logic doesn't make sense.

I'm afraid of my ex. Most women who have been abused want things to be very clear because that usually means better protection and less verbal interaction/negotiation. It probably applies to men who have been physically abused, too.

It makes no sense for a DV survivor to want a vague parenting plan.

[Matt]

Just occurred to me that her logic doesn't make sense.

I'm afraid of my ex. Most women who have been abused want things to be very clear because that usually means better protection and less verbal interaction/negotiation. It probably applies to men who have been physically abused, too.

It makes no sense for a DV survivor to want a vague parenting plan.

I think this right.

For me, the fear wasn't mostly about physical harm.  I was afraid she would again attack me and lie to the police.  But the result was the same - it made sense to get distance and have rules to minimize contact.

Somebody saying the other party committed DV doesn't mean it happened.  His actions do speak louder than his words.

[hell0kitty]

Wow! So much great info here! I checked in a few times and didn't have a response, so assumed no one had anything, and then today I look and all these great replies!  Thank you so much for taking the time to respond.

So, we spoke to our attorney again, we were able to file a response with evidence but the snag was since the hearing is Friday, and she served us two days ago, and we have to have everything served and entered by noon tomorrow, we HAD to serve her by today.  We found amazing evidence that we didn't even realize we had.  The judge at the DV hearing did not order him into DV perp counseling, we found the actual referral, and the judge referred us to get a minor mod of the plan! WIN! So we entered the response with that attached into evidence.

To answer the question: Why a minor mod?

In our state, I guess it is one of the hardest states to get a major mod. Even ti get a hearing fr a major mod is near impossible without being able to prove she is a hooker or a drug addict.  I guess minor mods are the way to go here, and according to the attorney probably closest to what we could afford financially and emotionally. 

We had to have her served today, and the only time we knew where she would be was during pick up of child.  We had the server in the car, BF got out with server and he picked up child.  Once he and child were in car and chatting server quietly reached out and told her "these papers are for you" to which she replied by rolling her eyes and trying to run away.  Server then said "BPDex you have been served" and dropped papers and turned around.  BPDex whipped around grabbed papers off the ground and ran across the street.  As they were driving off she was flailing her arms around and screaming, "REALLY? In front of our F**king child? REALLY!"

Don't know how that is going to go over in court or id she will even bring it up.  BF is pretty upset they had to do it that way, but it was the only way as she literally served us on the deadline and only gave us 1 day to respond. Luckily the child was oblivious and too engrossed in the bag of McDonalds that was in the car waiting. 

[livednlearned]

As they were driving off she was flailing her arms around and screaming, "REALLY? In front of our F**king child? REALLY!"

Classic.

[david]

My ex was very good at avoiding being served too.

[hell0kitty]

If she had just taken the papers, no one would be the wiser. She is the one who tried to cause a huge scene. Makes no sense.