ex parte/emergency motions

[VIDEO: "What is parental alienation?"]

It seems like you're choosing between the lesser of two evils. Spend money to do this right, and be broke, but have peace of mind. Or chip away and let the process lead you to see where it goes, and maybe be less broke, but also have less peace of mind.

There may be a hybrid strategy, with most of the benefits of court, but not the cost.

A strategy where you have a plan for court - a plan to win big - and you show that plan to the other side, so they have a motivation to settle out of court.  And a clear set of expectations for the settlement - "I will settle if you agree to X and Y and Z" - which will make the situation better than it is, and also put the other party on notice that you will hold firm to those boundaries.

What's critical is to carefully work out those expectations - what is acceptable if you settle, and what you will go for if you go to court - and a big enough difference between them to motivate the other party to settle.

I agree that agreements don't enforce themselves.  My wife was diagnosed with BPD, and she agreed to get psychotherapy, and that was written into the court order, but she never did it, and the court never checked.

But... .she knows that if things don't go well - if her behavior is a problem - and we ever go back to court, I can show that she hasn't complied with the court order and the kids are being impacted by that.  On many occasions, she has indicated she will do something destructive, but she hasn't actually done it - a change from before the court order, which I think is probably because she knows I will take whatever legal action is needed if her behavior goes south.

A lot of this has to do with what your ex will consider to be negative consequences;  what does he not want to happen?

But if he has a lawyer, also keep in mind how she will see things:  what will she advise her client to do, to avoid legal consequences?  Sometimes an irrational person, who won't listen to his ex, can be influenced by his attorney - he might listen to her when he won't listen to you... .

[Matt]

It seems like you're choosing between the lesser of two evils. Spend money to do this right, and be broke, but have peace of mind. Or chip away and let the process lead you to see where it goes, and maybe be less broke, but also have less peace of mind.

There may be a hybrid strategy, with most of the benefits of court, but not the cost.

A strategy where you have a plan for court - a plan to win big - and you show that plan to the other side, so they have a motivation to settle out of court.  And a clear set of expectations for the settlement - "I will settle if you agree to X and Y and Z" - which will make the situation better than it is, and also put the other party on notice that you will hold firm to those boundaries.

What's critical is to carefully work out those expectations - what is acceptable if you settle, and what you will go for if you go to court - and a big enough difference between them to motivate the other party to settle.

I agree that agreements don't enforce themselves.  My wife was diagnosed with BPD, and she agreed to get psychotherapy, and that was written into the court order, but she never did it, and the court never checked.

But... .she knows that if things don't go well - if her behavior is a problem - and we ever go back to court, I can show that she hasn't complied with the court order and the kids are being impacted by that.  On many occasions, she has indicated she will do something destructive, but she hasn't actually done it - a change from before the court order, which I think is probably because she knows I will take whatever legal action is needed if her behavior goes south.

A lot of this has to do with what your ex will consider to be negative consequences;  what does he not want to happen?

But if he has a lawyer, also keep in mind how she will see things:  what will she advise her client to do, to avoid legal consequences?  Sometimes an irrational person, who won't listen to his ex, can be influenced by his attorney - he might listen to her when he won't listen to you... .

[momtara]

We will ask for:

-He has to go back on his meds as decided by his treating professionals

-His docs have to give monthly reports to our PC, saying he's staying on his meds

-PC continues to act as an intermediary

-He has supervised visitation until his doctors *and PC* (I just thought of that) agree he is stabilized.

Remaining questions:

-Regarding should I ask for an eval?  PC says a standard psych evalu would be irrelevant because he is already being diagnosed by his own docs and she has her own opinion, too.  She said a psych eval won't show anything new.

I can still ask my L about it.  There are also 'best interest evaluations' and other types of things - never fully sure which is the best route with that.

Maybe this won't be as quick as it seems... .the PC maybe won't decide that he can be unsupervised all that quickly.

[momtara]

If psych evals were $500, might not be a big deal.  In my case, it's recommended to hire a really good forensic psych.  That can be $6,000 or more.  I keep wanting to say money doesn't matter, but I just don't know if I have that.  It can be a bargaining chip though.  Just like making him pay... .hmmm, you are spurring me to think of good ideas... .

[Matt]

One distinction is whether there is an objective test, like the MMPI-2, or just opinions from one or more professionals, who might not agree, and who are likely to use vague language.

I'm not a professional in this field - I'm a physical scientist - so part of what I see is the distinction between opinions and knowledge.  Opinions are a dime-a-dozen, and courts may or may not be impressed with vague, qualified statements by professionals based only on their perceptions of the person.

But objective testing gets much closer to being a fact.  The MMPI-2 is based on tons of research and has been proven through decades of experience - many thousands of subjects and hundreds of studies all over the world.

When the MMPI-2 says "This person has BPD.", it's pretty much a fact that this person has BPD.

And there is also a ton of research showing the impact of a parent's BPD on the child.

So... .beware the professionals who want to keep doing what they're doing - tip-toeing around the issues and not really stating anything as a fact.

Look to objective testing, to provide the court with more-or-less factual information which really can't be ignored, if it is presented clearly.

[livednlearned]

By choosing between the lesser of two evils, I meant asking for everything, versus limping along and letting things play out hearing by hearing. Everything being legal custody, supervised visitation, and completely kitchen sinking things with a MMPI-2, either through a custody eval or just one MMPI-2 for him.

I think the objective test can be really effective when there is no data on the table, and I think it can be reasonably effective when there is a bunch of data already on the table. That's how it seems to be playing out in your case, momtara. What you need to figure out is the right combination of requests that will created an extended state of supervised visitation.

You are also in a position to ask your ex for a psych eval, but not take it yourself. Even though I think it's highly unlikely a psychologist can dx your ex as schizophrenic vs. personality disorder based on a handful of visits, the idea that your ex could be schizophrenic would make me want to know for certain. It has a genetic component to it, there are medications, and specific behaviors. The only issue is if your ex has a substance abuse problem. That can make it difficult to get a straight up dx. Doctors (at least where I live) like to see people sober for six months before running diagnostic tests. Also, what would also tip things toward a MMPI-2 is that the judge might not think that meds for anxiety is all that serious. The PC makes a statement, the doctor makes a statement, maybe you testify. It's possible that the judge doesn't understand what the big deal is. You want the judge to be worried about his or her own reputation if something bad happens. You want the judge to be sitting there thinking, "I'm going to look like an idiot if I don't do something now and a bad thing happens while this guy is running around with two little kids, not on medication."

How much is it for just one person to get a psych eval (MMPI-2)? Here, it's about $1500-2000. In my case, there were enough data on the table to point to N/BPDx having some serious issues. No one ever once raised the question that I would need to take one. And if your ex doesn't have money to get one done, then perhaps the consequence is that the eval doesn't happen, but the consequence is clear: visitation stays supervised. Let him figure out how to come up with the funds.

Whatever you do, you have to give the judge something to work with -- he or she needs to be able to say to your ex: This is what the deal is right now. You do this thing, and for a long time you report to these people, and you can have unsupervised again.

And it needs to be a high enough bar that you get your money's worth from this round in court! And have some peace of mind that your ex can't just waltz back into unsupervised.

That's where I stand right now with N/BPDx. He was ordered to get anger management classes, a MMPI-2, and substance abuse treatment within 30 days of our last hearing, which was back in March, I think. He didn't do any of those things. When the judge was making his ruling, I remember he said very clearly, "These are all very reasonable requests, and N/BPDx has 30 days to get them done." Those were my requests, and the judge's timeline.

When you give your judge the problem, then lay out reasonable solutions with consequences, you make it much more likely to get somewhere in the ballpark of what you want. Otherwise the judge will treat you like a little kid and say, "The dad has to take his medication. The doctors will decide if he is doing ok." In which case, you have a lot of ambiguity.

[ForeverDad]

The judges have a presumption, that the order will fix things and you're not expected to return to court.  Yeah, we've all come to learn that long term issues are not fixed by short term band-aids.  Long term monitoring is the issue here.  Judges prefer things that get fixed and go away.  A typical order might be: get on meds and after X months the supervised requirement goes away and the order ends.  That sort of order requires you to go back to court all over again upon the next relapse.  In many cases there are side effects to meds and its not a surprise when the person quits taking them after a while.  That's a real risk here - already happened - and frankly is likely to happen again and again without long term monitoring that has teeth.  So try to get an order that doesn't "end" after first compliance.

I recall when we first separated and the assistant prosecutor offered my then-separated spouse a plea deal of Anger Management.  It was refused of course, but taking a few classes would have been only a short term fix for her long term behaviors anyway.  The only benefit of consequence would have been History indicating problems.

[david]

If ex is required to be on meds for 90 days and he follows the order what happens then. I mean what if he stops his meds 120 days later. Did the original order lapse after 90 days or does ex need to present results on a monthly basis after the 90 day period.

This leaves a trail for the future.

[momtara]

"A typical order might be: get on meds and after X months the supervised requirement goes away and the order ends.  That sort of order requires you to go back to court all over again upon the next relapse."

Very good points... .

It seems like the thing that continues is that he will be monitored by several people.  If he goes off again, then I guess they'd recommend he doesn't see the kids unsupervised for a while. 

That said, a real slam dunk would indeed be if someone were to say, this person really needs supervised visitation for a long long period of time.  Or if I could hire an expert to give a better diagnosis than these various professionals, one that means he has to have really good treatment for a long period of time before he can see the kids unsupervised. 

[livednlearned]

It would also be a good idea to state explicitly who can do the supervision. His parents? Someone you must both agree to? How will you know that he is, in fact, supervised? If it's his parents, and they think you're being ridiculous, is there a chance that they will "pretend" to supervise? If you suspect that he is not taking medication, and report to the PC, what then? Does she call off the next visit?

Just some additional details to think about. Leaving things open-ended creates headaches, in my experience.

[momtara]

THANK YOU.  Those kinds of things are very helpful.

I think the parents are too anxiety ridden not to supervise.  So they may be ok doing that.

Livedandlearned, my L said most of the things you had already said.  You are a godsend!  And a genius.  And a good mom.

[Matt]

Only a professional should supervise, not a family member.  That just complicates things further - family members can't be expected to know how to enforce rules.

And yes, LnL is a genius and a godsend to many of us here, and I'm sure she's a great mom too!

[momtara]

You think that's true about family members?  The PC wasn't thrilled with the idea of a family member supervising either.  However, he lives with his family, and they are usually around him, so I don't see what's wrong with that.  They will just keep an eye on the kids and be with him when he picks them up and drops them off.  The alternative is that he has to see the kids in the county courthouse.  That seems excessive to me.

[Matt]

Well if you know them well you can judge, but the job of supervision is to maintain firm boundaries about exactly what is OK for him to say and do around the kids, and that's what a professional should know how to do.  Having a family member do supervision is probably about the same as no supervision at all.

Let me give you an example:

He's playing or talking with the kids, and he makes a harsh joke at their mother's expense - puts her down cruelly and unfairly, "joking".

A professional might call him aside, and say, "That's not OK.  You can't say things like that in the kids' hearing.  If it happens again, today or any time, I will terminate the visit, and inform the judge what happened."

Would a family member be prepared to handle it that way, knowing that he might not accept their boundaries?  Or would the family member find it easier to just pretend they didn't hear the "joke"?

And if the behavior continued, would the family member actually follow through, and terminate the visit, and inform the court, and then show up in court and tell the judge exactly what happened?  Or would the family member take the path of least resistance and maybe just give him a scowl and hope he got the message?

[momtara]

I guess those are good points.  Hadn't thought of that.  That gets to a basic question I had for the PC, which was, exaclty what is your concern?  While my exH can be manipulative etc., I don't think he's alienating the kids from me or saying/doing inappropriate things.  My big concern is if he'd hurt them to get back at me, physically.  I think his family being around would stop that from happening.  Anything less, I'm not so worried about.

But I'll see what my L thinks.  Maybe after a few weeks of regular supervised he can be supervised by family. 

[livednlearned]

Livedandlearned, my L said most of the things you had already said.  You are a godsend!  And a genius.  And a good mom.

Thanks for the nice comments, momtara!

[momtara]

You're welcome!

Well, we're going to file the thing today or tomorrow.  Now I'm nervous.  Sooner or later, he will have the kids unsupervised again.  This just ratchets everything up and makes him not trust me.  I don't really think they're in danger for the time being, but I also have to walk on eggshells all the time.  While 'doing nothing' is not an option for now, doing something will just piss him off and make him untrusting.  These doctors don't really understand how his mind works.  I guess I have to trust them, but I just wish there were more Bill Eddys out there, lawyers and doctors experienced with BPD.  

[Matt]

I think a lot of us went through this phase, and everybody is unique - just because someone has BPD doesn't mean he'll react lke someone else... .

When my marriage imploded - my wife became violent, and made extreme accusations, so I couldn't be around her safely - for almost a year I worked to save the marriage.  Finally I gave up on that, and went ahead with the divorce, and took a strong approach - disclosed her behavior, had  her deposed, and filed  a motion for a Custody Evaluation.

Of course she didn't like this, and she reacted badly to it.  But her lawyer advised her to control her behavior - this is the phase, during the legal process, when both parties' behavior is watched most closely.  Over time she seemed to realize that acting right would work out best for her, and she has been easier to deal with - at a distance - than she ever was.

The reason is probably that she now knows she can't bullyc me into doing what she wants anymore, and if she acts badly it will work against her.  Nothing will be kept "private" - any behavior that impacts me or the kids will work against her... .

[livednlearned]

I guess those are good points.  Hadn't thought of that.  That gets to a basic question I had for the PC, which was, exaclty what is your concern?  While my exH can be manipulative etc., I don't think he's alienating the kids from me or saying/doing inappropriate things.  My big concern is if he'd hurt them to get back at me, physically.  I think his family being around would stop that from happening.  Anything less, I'm not so worried about.

But I'll see what my L thinks.  Maybe after a few weeks of regular supervised he can be supervised by family. 

I think telling the PC that you are concerned, and want to know if her concerns are the same -- that's a good conversation to have. Maybe even have that conversation by email so you have a record of it, something you can literally use for free if it's necessary.

[momtara]

Yeah, Matt, setting boundaries works, I guess.  I guess we all get scared, though, of causing so much trauma that it makes things worse instead of better.  Seems like boundaries are the way to go in general.

I told my L all the stuff that's been happening.  None of it involves any behavior that would put the kids in danger, though.  The only thing I am going on is our PC's recommendation that she just issued, saying that my exH should go back on his meds, because he is unstable and a potential danger off them.  The PC did NOT say that she recommends supervised visitation, like I thought she was going to.  She said she can't go that far.

So I said to my L:  If you think this is a conversation among attorneys, and not worth going to court over, please let me know.  She said she'd like to see a pattern of delusions and such.  There are delusions, but they are more my exH claiming I didn't let him talk to the kids on the phone, etc.

It's like Livedandlearned said, they want to see actual problematic behavior.  I am waiting to see what my L recommends, but she's so busy, she doesn't seem to opine a lot and just wants to do what i tell her.  Unfortunately, I really don't know how to pursue this.

I feel like I still have to try to get visitation suspended until he's on his meds, and PC seemed to feel that was the way to go, too.  If I sit here and do nothing, that looks bad down the road.

Ultimately my goal is to get him back on meds and stabilized.  But my L feels his L is slow to comply with stuff and talking to his L may not get anywhere too quickly.    We can file an order and temporarily suspend visitation, but it may not be so strong now. 

PC believes my exH's own doctor's diagnosis is better than a psych exam, so no exam.

[momtara]

Now I'm feeling a little tricked.  The PC said she thought I should file an emergency motion, but now she's not putting that in writing.  Also she told me my exH's doc said he was concerned about him having the children, now she says he didn't say that.  She does still think I should file, just she won't put it in writing.  She put in writing that he should get back on his meds and he's unstable.    I am wondering if she exaggereated what my exH's doctor said.  That said, it wouldn't hurt for him to be on his meds.  Is it worth the thousands I'm about to spend in court, and the aggravation, and him now not trusting me?  Maybe I could have spent that money on more counseling and learning to set better boundaries.  Agh, the ol' back and forth.  I guess I need to be strong.

People on this board have said, "Court can't make him stay on his medication."    This may be a harder fight than I thought.  He just may not want to be on it.

Guess I have to be strong.  I don't necessarily think he's a danger right now, that's the thing.  He hasn't done anything threatening since I left.  

We have stayed out of family court.  I want to keep staying out of family court, really.  Otherwise he will go back and ask for more parenting time when the kids are a little older.

[ForeverDad]

People on this board have said, "Court can't make him stay on his medication."    This may be a harder fight than I thought.  He just may not want to be on it.

Yes, few professionals want to put something in writing that may draw the ire of the other parent.  I recall that my ex actually filed a grievance against a sheriff's investigator for firmly seeing my vacation with my preschooler as not an actionable event to trigger an Amber Alert.  She made no friends by doing that but I'm sure the investigator wished it hadn't happened.  Professionals don't want grievances or complaints on record about them.

While court can't and won't make him stay on his medication, it can set basic requirements for parenting, based on past history, doctors' recommendations, incidents, etc.  So it won't say "take your meds."  It might say, "you have to be taking your meds in order to see your children."  And that's the issue, it might or it might not.

A word of advice... .don't overthink it.  As we learned back in school when taking tests, when facing an intractable or perplexing problem, often the first answer that came to you was more likely to be the right one.  And often too in our sort of cases there is no one right answer, it's a spectrum of options.  (That's a concept used in the MMPI2, sometimes there is no correct answer, just options with varying ill-fitting levels of vagueness or wrongness.  Which door do you choose when you don't know which door has the tiger and which door has the prince?)

[Matt]

If you decide to file, you could put into the documents, "On July  2 Ms. PC recommended that I take action to prevent Mr. Ex from having unsupervised time with the kids until he is back on his meds."

If you do that, it would be courteous to let the PC know you are doing it.

In the future, she will know that whatever she tells you could show up in court records and she will have to step up and tell the truth, or lie under oath.  She may be more careful what she tells you, or she may step up like she should.