Legal Strategy Question | Contempt of Court & Motion to Modify

[cdizzle]

Hello! A (hopefully) quick question -- thanks to those who have helped before (special shout out to ForeverDad & David for all of your incredible insight and wisdom), your feedback has been invaluable.

My bf's current order only allows for supervised visitation at a facility. Once he completes parenting classes (which he did PRIOR to the order, but he's going to do it again just because it's written in the order) he's allowed an additional 3-4 hours of supervised visits OUTSIDE of the facility. The order also states that he gets his son's address & a phone number (so obviously BPDex's address and phone). It also states that he gets to attend 50% of his son's doctor's visits (which he currently can't do because the doctor is a negative advocate and won't allow my BF to attend visits).

That said, my BF has asked for his son's address & phone number and his BPDex responds with "contact my attorney." We've also asked if he can attend doctor's visits and she responds with "doctor does not want you there... .contact my attorney."

In terms of strategy, I was thinking that we would:
1. Ask for address & phone number a couple more times (we've only explicitly asked once); to which we assume she will respond with "contact my attorney," and
2. Ask for her to speak with the doctor and encourage him to allow my BF to attend doctor's visits; if he won't comply with that request then we were going to follow-up with a request to change the pediatrician to someone who doesn't know the history of the parental dysfunction (and is not a negative advocate) so that he gets what he's entitled to in the court order. My assumption for this is that she will either (1) refuse to speak with the doctor, and/or (2) state the the doctor doesn't want to and she will not change the pediatrician for son.

When these requests are denied, I was thinking we would file a contempt of court in conjunction with a motion to modify requesting 50 legal / 50 physical. No supervision, etc etc.

My question is this: should we just contact the attorney for this information (address/phone)?

The reason I am hesitant is we have been using her constant referrals to her attorney to demonstrate her pattern of behavior (difficult person / impossible to co-parent with/ not taking the son's best interests into account as we've stated on numerous occasions that getting attorneys involved is not helpful / not financially responsible, etc) AND the refusal to share the address/ phone number is one of the only things (aside from the doctor's visits) that is in actual contempt of court. However, I don't want it to seem like we're the difficult ones if we file contempt with this as a reason (including the doctor's visits) when we could've just gone to the attorney in the first place... .?

Or, should we just contact the attorney for address/ phone and then use the doctor's visits as a means of contempt of court?

Our strategy is contempt of court in conjunction with motion to modify as that will likely be the most cost effective option without having to go to full blown trial in order to get more visitation.

Any thoughts / advice are appreciated! We haven't spoken to an attorney about this strategy yet ... .just have been brainstorming on our own.

Thanks in advance!

[ForeverDad]

Anything in court can take months or even longer.  My last time at court I already had full custody but sought majority time.  It had been equal time since the Final Decree (2008) but when I had gotten full custody (2011) but at that time the GAL didn't want to change equal time expecting my Ex to thereafter behave better.  Yeah, she didn't so I had gone back to court seeking majority time (2012-2013).  My Modification of Parenting Time motion took about 17 months.  So I can't tell you what is less slow.

Regarding the doctor visits which she claims the doctor refuses to include him... .Does doctor have a copy of the order for BF's involvement in doctor visits and that BF requests compliance?  What was doctor's response?

During my divorce's temp order my ex had temp custody and lost the pediatrician due to how she treated the staff.  Their legal office took over, refused to discuss it with me (I did not have standing in the current order custodywise but was quick to provide me the full medical records as parent with statutory rights.  Oh, and they made sure that those records were complete and included the logs when my ex had raged and cursed at the staff at which time they "withdrew services".

Supervised visitation has only few reasons to be in effect.  (1) There are pending allegations and the accused parent is being evaluated, usually resolved in weeks or so.  (2) The parent has has been determined to be a substantive risk of child abuse, child neglect or child endangerment.  Even so, most courts prefer to view supervised as a temporary status and try to include compliance landmarks with a goal to ending supervision.

One point to declare to the court is that BF has already taken the parenting classes (provide dates and outcome) which should satisfy the court but meantime is going the extra mile and taking them again as ordered.  (Does the court have documentation that he already took the class?)  Sadly, the longer he is in supervised status, the longer the court will look sideways at him.  That is crucial to resolve.

[cdizzle]

Regarding the doctor visits which she claims the doctor refuses to include him... .Does doctor have a copy of the order for BF's involvement in doctor visits and that BF requests compliance?  What was doctor's response?

Great question; I'm not sure on this one. My BF has a fear of contacting the doctor (one of the reason's the doctor sided with BPDex is when he wasn't able to get a hold of her (after she ignored him for weeks on end) he used a website to change his caller ID number to the doctor's office #, so she actually answered her phone) -- he's afraid that contacting the doctor will lead to more accusations of harassment on both ends and he doesn't want to have to deal with more of that in court. She also said the doctor will only communicate with him via USPS certified mail. Suggestions? Should he just contact the doctor either way via mail requesting the medical documents and also the next scheduled doctor's appt? Should he just call? The son's 3 year check-up is coming up soon ... .it would be wonderful if he could attend.

Supervised visitation has only few reasons to be in effect.  (1) There are pending allegations and the accused parent is being evaluated, usually resolved in weeks or so.  (2) The parent has has been determined to be a substantive risk of child abuse, child neglect or child endangerment.  Even so, most courts prefer to view supervised as a temporary status and try to include compliance landmarks with a goal to ending supervision. 

She had a TRO against him when the order was drawn (August 2015), renewed the TRO which expired last November. So at this point, I would say that nope, he does not meet either of those guidelines requiring supervised visits.

One point to declare to the court is that BF has already taken the parenting classes (provide dates and outcome) which should satisfy the court but meantime is going the extra mile and taking them again as ordered.  (Does the court have documentation that he already took the class?)  Sadly, the longer he is in supervised status, the longer the court will look sideways at him.  That is crucial to resolve.

Ugh, I know. It's a thin line with my BF... .on one hand I know he wants to be with his son more, but on the other hand I can understand why he's moving (IMO) slowly (more custody could mean more interaction with BPDex; he's been focusing on / prioritizing our relationship so that we have a strong foundation, thereby producing a strong foundation / model for his son) -- but I don't want the courts to look at him poorly and that he's not an involved father due to supervised visits for an extended period of time.

The order also states that my BF must attend therapy, parenting classes (as discussed), and get drug tested. He's been attending therapy and recently got a drug test through work. We're planning on giving her documentation that he's been doing as ordered (letter from therapist, copy of drug test, parenting class completion & registration for another parenting class ... .plus she has access to the records from the supervised visits). We've asked for non-supervised visits PRIOR to producing this documentation to her, she asked for the documentation to "decide whether or not supervised visits were necessary," but we didn't give her any copies of the documentation at that time (namely, the drug test was not available). We're planning on producing the documents, then asking again for non-supervised visits, more time, etc. I have a feeling that she'll still reject it and force us into court... .as her main goal is to run my BF dry (drain his finances); which is when I think we'll file the contempt of court & motion to modify.

[ForeverDad]

SHE said the doctor will only communicate with him via USPS certified mail.

First, a lesson learned early here is that we can't trust anything the disordered Ex claims without supporting documentation.  For example, if the doctor had told her "sure, have the father come on in" do you really think she would pass that on unchanged?  Frankly, at this point it's anybody's guess what the doctor thinks.  Odds are she's never given the doctor the order or the entire order.  Dad needs to make polite contact with the doctor, perhaps dropping in with the actual order and with the appropriate sections highlighted.  If there's no appointment, then ask for one.  A first visit might be best without the children and his ex there.

Many divorcing spouses have TROs.  I've had two against my then-spouse and she had two against me.  However, a notable point is that when my ex twice tried to include our then-preschooler, both times the court excluded him from her attempt to lock me out or restrict my father-child time.  Once it was CPS who stood up and stated, "We have 'no concerns' about the father."  The second time was when the TPO harassment settlement (nothing substantiated) said our son's parenting access would be handled by domestic court and not the civil court she had filed in.

My point is that just because she files or refiles TPO claims, courts are often willing to exclude the children from the motion unless the risks to the children are substantiated.  As I said, in my case we each had TPOs filed against the other, judges both times let the TPO proceed but saw the heightened conflict as being between spouses and so excluded the children.  BF ought to be able to get the supervision requirement removed, or at least give it a really good try, even if her TPO case is allowed to continue.

[david]

My ex filed three protection orders against me. The second one she actually asked the judge to drop it. We were already in court and I had an attorney. I had an additional issue that wasn't addressed in the court papers. I picked our boys up at her residence and she refused to let them bring their school bags with them. I am a school teacher and always helped the boys with their school work prior to the separation. She did absolutely nothing to help them with school and she knew I viewed that as extremely important. So you can see why she was acting the way she was. I had my attorney ask the judge that I pick the boys up at school instead of her residence since she was so afraid of me. The judge liked the idea and asked ex. She knew she had no choice and agreed. I made sure my attorney wrote the order up in court and get it signed.
 
Two days later I went to their school to pick them up. I was informed that I was not allowed to pick the boys up with out ex's expressed consent. I anticipated something and had a copy of the new order. I gave it to the woman. She questioned it because it was handwritten. I simply asked them to fax a copy to their legal department to confirm. I left with our boys and their school bags about 15 minutes later. Like FD said you can't believe anything BPD does.

The doc is required to follow the court order and probably needs a copy of all the orders. I would not rely on the word of exBPDw. If he refuses then he is in contempt and you can get the courts to get a change of docs.

My ex took our boys to counseling and had them convinced I was a monster. At the time we had a parent coordinator. I addressed it with her. She had me contact the counselor and so I sent an email. They refused to reply. The parent coordinator immediately ordered that the boys not be allowed to go there and that ex had to find a counselor that would also include me.
 
Repeating what FD said, I would make sure the courts know bf already took parenting classes and is taking them again in order to follow the order. That should end the supervised visits.
I learned that slow and steady wins the race. Staying focused on the kids and staying out of conflict with my ex eventually helped everyone to see who the problem really was.

[ForeverDad]

Maybe I ought to explain how I understand the court POs & ROs... .

Getting married or being in a relationship with another adult is a chosen relationship.  Two people to start it, but it only takes one to end it.  So when a spouse, BF or GF files in court for a PO/RO, even if only for being vaguely 'fearful', it has a real chance to be confirmed to some extent by the court.

However, when children are included in a filing for PO/RO then the courts have to weigh the impact upon the children, after all, there is the parent-child relationship that should not be automatically impacted just because the parents break up.

That's why I wrote previously that while BF's ex can file for the children to be included in her TPO, she can ask for virtually anything, it doesn't mean she should or will get it.  The court has a responsibility to consider whether there is a need for restricting parent-child contact, especially if the impacted parent objects.

So, in summary, while courts may be inclined to rubber stamp stay-away requests between the adults, the courts should scrutinize much more closely any contested parent-child restrictions.  Courts may even agree that the children need their own lawyers, called Guardian ad Litem (GAL) so the children's interests are protected.

[livednlearned]

My bf's current order only allows for supervised visitation at a facility. Once he completes parenting classes (which he did PRIOR to the order, but he's going to do it again just because it's written in the order) he's allowed an additional 3-4 hours of supervised visits OUTSIDE of the facility. The order also states that he gets his son's address & a phone number (so obviously BPDex's address and phone). It also states that he gets to attend 50% of his son's doctor's visits (which he currently can't do because the doctor is a negative advocate and won't allow my BF to attend visits).

It's a good idea to do what's in the court order (parenting class), even if the class is a repeat, and even if it makes no sense, in my experience.

Is there an explicit reason why BF needs the address and phone number? I'm not doubting that this is important, but sometimes courts look down on people who file motions for contempt that are (for lack of a better word) flimsy. Meaning, it might be in the order, but not complying with it doesn't create a negative impact for the child, so to speak.

If your BF needed the address & phone number to get his supervised visitation, then that would be consequential.

If your BF just wants the address & phone number because he wants it (and it makes sense to want it), I recommend he just contact the attorney.

You really don't want to be seen by the judge as someone who uses court to solve problems that can be fixed otherwise, even if those problems are created by a high-conflict co-parent. It's not fair  

In terms of strategy, I was thinking that we would:
1. Ask for address & phone number a couple more times (we've only explicitly asked once); to which we assume she will respond with "contact my attorney," and
2. Ask for her to speak with the doctor and encourage him to allow my BF to attend doctor's visits; if he won't comply with that request then we were going to follow-up with a request to change the pediatrician to someone who doesn't know the history of the parental dysfunction (and is not a negative advocate) so that he gets what he's entitled to in the court order. My assumption for this is that she will either (1) refuse to speak with the doctor, and/or (2) state the the doctor doesn't want to and she will not change the pediatrician for son.

That's unfortunate about the caller ID incident -- it probably gave the doctor's office reason to believe any negative stories about your BF. Has your BF gone to the office to discuss what happened and why? And to show the court order and ask to be notified when an appointment is made?

The more problem solving your BF can show, the better it will play in court. For example, just tossing this out there (I haven't thought this through, but it's an example of problem-solving when a co-parent stonewalls and obstructs), what about taking BF's son to a different pediatrician independently, or asking the doctor's office after the visits to share the notes, or go in an talk to the doctor separately to hear how things went?

When these requests are denied, I was thinking we would file a contempt of court in conjunction with a motion to modify requesting 50 legal / 50 physical. No supervision, etc etc.

Contempt of court motions can pile up like parking tickets without any real consequence. In my case, it was more the pattern of contempt of court that made a dent, and even then, the nature of the contempt was a bit more directly impactful to my son's well-being. And there was also a sturdy trail of evidence.

Our strategy is contempt of court in conjunction with motion to modify as that will likely be the most cost effective option without having to go to full blown trial in order to get more visitation.

I don't think one contempt of court is going to leverage a change in visitation -- altho things could be different where you live and it's always a good idea to consult with your L.

Our cases are often about a pattern of documented behavior, especially after a temp order has been ordered. If your BF has to work his way out of a less-than ideal place, he will need to demonstrate a period of his perfect behavior and her problematic behavior, especially for things that have a negative impact on the child, at least in general terms.

My judge did care about adult to adult behaviors, but these behaviors were significant and documented, and when the judge made an explicit call to N/BPDx to cut it out, N/BPDx did not, and that bothered the judge. But in terms of changing visitation and custody, it took a lot of contempt of court motions over a long period of time, with lots of proposed solutions tossed in there (psychiatric evaluations, ordered therapy, anger management classes, parenting classes, co-parenting therapy, substance-abuse treatment) before things started to sway the judge to make meaningful changes.

It does make you nuts

I'm sorry you have to go through this.