Neverending CE

[Thunderstruck]

So... .last week marks three years since our CE was court ordered. Three. Years.   SD was 9 when it was ordered. Now she is 12.

The last we heard from the CE was four weeks ago. Our L contacted her and she promised the report within a day or two. Surprise surprise, we still don't have it.

A week ago we wrote a nasty gram to the L expressing our frustration with the empty promises of delivery of our report. We asked the L what steps will be taken to get this resolved. And... .no response from the L either.

This situation SUCKS.

DH and I feel stuck. We don't have the money to afford another CE or to afford the legal fees to go after/sue the CE. We feel like if we do go after the CE then our hopes for primary/majority custody go out the window and we will be "stuck" with 50/50. Even if we sued the CE and won and were awarded our money back, there is no guarantee that the CE would cough it up. Honestly, getting our money back would be a small consolation. This is three years of SDs precious childhood that have been spent with her stuck in BPD chaos, abuse, and neglect. It's amazing she's gotten through it as well as she has.

I'm having a hard time letting go of the hope that this CE will come through, her report will be in our favor, and we can finally move forward with our custody case. I just think I need some help from you guys to help me see reality and choose our going forward plan.

The first option (and what we've been doing and what the L recommends) is to continue to wait and believe that the CE will deliver the report "soon". After the report there will be another hurdle of mediation and probably trial. Very expensive and will take a long time.

The second option is to go after the CE and burn that bridge. We'd probably report her to the state licensing board and sue her in civil court to get our money back (anything else? Bad yelp reviews?  ). If we go this option then we'd probably end up stuck with our current temp CO (shared custody and 50/50).

Our situation right now looks like this: SD prefers our house. We live in her school district and all her friends from school live in our neighborhood. We also facilitate visits with her friends who have moved out of the district (the other parents don't trust BPDmom). At her mom's house she shares a room with her 14 year old sister (and they fight, as sisters do). Her sister's dad lives in the house and does pretty awful things to her. He calls her names, dumps food on her bedroom floor, tells her she has Asperger's and ADHD. Her mom just moved again so SD has no friends in the new neighborhood. BPDmom works or goes out with multiple guys so most of the time SD and her sister are home alone. SD sings an ABC song of all the names of the guys her mom goes on dates with... ."Adam Brian Charlie David... .". BPDmom and the sister have body image issues which so far has only minimally affected SD. When BPDmom is in the right mood, her and SD will go out and have a really nice time together and I think SD really craves those moments. 

We go to all school functions (conferences, parent nights, concerts). BPDmom goes to very few. SD isn't very involved in activities because we could never get BPDmom to agree to anything that occurs during both our times. We take SD to all of her doctor, dentist, optometrist appointments. BPDmom is supposed to reimburse part of the costs but she has never given us a dime. We pay support but it's not very much. For the most part BPDmom sticks to the visitation schedule, however she has withheld visitation in the past (3 times in the past year) to prevent SD from being able to participate in family celebrations. We do have reports from CPS saying that BPDmom make poor parenting decisions, and loads of evidence of her not cooperating and violating the court order.

Without an expert to provide a recommendation, I don't know if we would have enough to really push us over to majority time and primary decision making. If we stayed with the current schedule the big fight would be over but we'd have to continue with these constant little aggravations that BPDmom instigates.   

What are your thoughts/opinions? How should we move forward?

[flourdust]

It's long past time that you started playing hardball.

Your lawyer needs to respond to you, or your lawyer doesn't get paid. You can certainly fire this lawyer and hire another, better one right away. In fact, I'd recommend that, because any lawyer who has recommended "patience" for three years on a CE report is an idiot and is not serving your interests.

And I think you should fire all barrels at the CE.  I'll repeat the advice I gave before: have your NEW lawyer send a threatening demand letter to the CE -- you want the report - completed or not - and all of her notes - by close of business in two days. Failure to comply will result in the lawsuit and formal complaint to the licensing board and family court. Then follow up as promised.

If the CE complies, you'll salvage what documentation you can from her. There's no way that she is going to complete a report without an imminent threat. My expectation is that she doesn't have a report, and it wouldn't even surprise me if she doesn't have much in the way of a draft or good notes.

Your big fear seems to be that she'll decide she's pissed off at you and write a negative report. First, I don't think she's capable of writing a report of any kind, especially if you give her only 48 hours. Secondly, even if she somehow managed to pull herself together long enough to write something negative, you've got a paper trail of three years of her incompetence that you can use in court to have her report thrown out.

Of course, your DH's ex can do the same thing if she doesn't like the report. The bottom line is that this report, complete or not, is becoming more and more useless for your case. Time to end it and see if anything can be salvaged from this fiasco. Do it!

[flourdust]

One more thing -- in my own divorce, the court ordered a CE last September. It was delayed due to a case backlog in the county until January. The CE was given until May and completed the evaluation at the end of that month. And THAT, I thought, was too long!

[GaGrl]

I don't know the guidelines in your state, but... .

Should you proceed to file for full custody, without the CE evaluation, could you subpeona the CE so that she HAD to appear in court and at least answer in front of the judge as to why it took three years to produce nothing?

(I would be beyond frustrated at this point -- I don't blame you at all for reaching this frustration level.  I've never heard of such a thing.)

[david]

If you go to court you can use all the documentation : you live in the school district, ex moves around a lot, a list of school functions attended, doc appointments, etc. That, by itself , should be enough.
You also have the fact that you went through the CE and the time it has taken and still nothing. You show extreme patience in that area. You could say that you were depending on the courts and the CE and this is beyond what you consider reasonable.
I think it might be good to talk to lawyers. My first attorney was horrible and it took me a while to figure that out. When I finally did figure it out I let the attorney know what I thought. I also refused to finish my payments. I was threatened with being taken to court. My reply was fine and I will represent myself because I know I can do a better job than you have been doing. We settled for ten cents on the dollar and copies of all papers from the file.
My new attorney listens, addresses my issues, and tells me what to expect, and what I need to provide to accomplish my goals. I have never "lost" in court since then.

[ForeverDad]

Is there a way to file a declaration with the court that the CE is now in its 4th year and ask for a motion to compel completion?

[Thunderstruck]

flourdust, you're very right. I think DH and I need to sit down and have a big chat about this.

Should you proceed to file for full custody, without the CE evaluation, could you subpeona the CE so that she HAD to appear in court and at least answer in front of the judge as to why it took three years to produce nothing?

I feel like we should be able to use her as a witness, but without her report we don't really know where she stands... .Would she be allowed to refuse to answer questions if called as a witness? I don't know. I don't know what we could use from her.

As far as her answering to the judge... .I don't even know what that would accomplish in our custody case. If we sued her in civil court, now that's where she would be expected to answer. She was just sued last fall for doing the same thing to another person and she never once showed up (to the point where the judge had to issue a bench warrant for her arrest). I know the other person won against the CE, but I don't know if the CE ever actually gave him the money he was awarded.

Is there a way to file a declaration with the court that the CE is now in its 4th year and ask for a motion to compel completion?

Our L should be doing that, right? That's why we sent him the nasty gram saying "what the heck is the plan here"? He's not a bad L but he's expensive and we're not getting anything out of all this money we're spending. He's been so passive.

[GaGrl]

I think your last two sentences are the crux of the matter.

[Sluggo]

So sorry you experienced that.  Mine took 8 months and I thought that was long. 

[Sluggo]

He's not a bad L but he's expensive and we're not getting anything out of all this money we're spending. He's been so passive.

I switched at the beginning... .  similar feel you have, L seemed not bad, nice, but passive.  He was recommended and on expensive side. 

I got a new L after prelim hearing... .  she is a world of difference.  She is a little nasty, on the aggressive side, and most importantly cared for what was going on.  She got emotionally engaged which helped 100%. 

[flourdust]

Our L should be doing that, right? That's why we sent him the nasty gram saying "what the heck is the plan here"? He's not a bad L but he's expensive and we're not getting anything out of all this money we're spending. He's been so passive.

Your L should have done this over two years ago. He is a bad L. He may not be drunk in court, but he is failing to advise and represent you. Stop paying him and get a new L.

[david]

I had no idea what to look for in an attorney in the beginning. Over time I learned the rules of the game (family court). I then realized the attorney I had wasn't that good.
You need an attorney that communicates in a way you understand and also understands what you are trying to accomplish. So the first step is deciding what you want to accomplish. Stay focused on that goal. If you are happy with the attorney you have then you need to communicate what you are seeking and put time limits on it. I would want to know why things are taking so long and what can be done about it. There are always more than one way to get to a goal. A good attorney should be able to communicate the different ways and strategies.
I learned to work with what my ex was giving me as far as things my attorney needed.
I took a more hands on approach with my second attorney. I was able to because I was not relying on him to figure it out. My way of looking at it is I hired an attorney to accomplish a goal in the legal field where I am no expert. The attorneys job, in the beginning, is to listen to what you are trying to accomplish and tell you how you can achieve those goals using the laws and the way things are done. My communication with the second attorney was much easier because I already had some ideas how things worked in my county. I think that was my biggest hurdle in the beginning.
I was told that CE's can take a long time. I asked what a long time was and was told up to a year. In rare cases, high profile/etc, they could take longer but usually that is lawyers adding billable hours and letting the clients spend,spend,spend.

[Thunderstruck]

Ok, DH and I were fed up to ::HERE:: and made a list of how we were going to proceed. I've been on a different work schedule this week so we just got our plan together to cut everyone loose, accept our situation as it is, and just move on with our lives but haven't taken action yet.

Then DH gets a call from our L tonight. The CE is ready to release the report on Monday but she wants to know where SD12 will be because the report is in our favor and she's worried about backlash from uBPDbm onto SD. 

I know, I know, she's said this before. Is it credible? I don't know.

SD juuuuuust went back to uBPDbm's for the week this evening (we do week on/week off in the summer) so she won't be back with us until next Friday. It's looking like the CE might want to wait until then to actually release it to uBPDbm so SD is shielded from the fallout.

[david]

You waited this long so I would wait until SD12 is safe. I hope it works the way everyone is thinking at your home and here.

[GaGrl]

Is it possible to have SD with you when the CE report is published ( should be a friggin' novel by now!) and arrange to file an ex parte to give you primary custody based on behaviors documented in he CE?   May be a stretch... .

[Thunderstruck]

Is it possible to have SD with you when the CE report is published ( should be a friggin' novel by now!) and arrange to file an ex parte to give you primary custody based on behaviors documented in he CE?   May be a stretch... .

From what the CE told our L, the CE will want to wait until SD is with us next week to release the report. She has to send it to our L and uBPDbm (pro se) at the same time. Our L has stated that if it's strongly in our favor then the next step would be to get an emergency motion to change custody (maybe, hopefully before school starts up again? ). DH and I are wondering how uBPDbm is going to react.

[david]

UBPDbm might not understand what the eval is saying or simply pretend it means something else. My ex did that a lot and she had legal counsel. I don't know which one she did but I could only think of those two possibilities.
In the beginning ex filed a petition to have me evicted from our house. It was denied. The next day she came with the police, three cars, and the officer told me I had 10 minutes to vacate the property. I explained that the judge did not sign the petition but ex convinced the police that didn't matter. I was in the driveway calling my atty. I handed the phone to the police and resolved the situation. Ex simply stated she misunderstood.
We were in court once and the only thing settled was that I was to pick our boys up at school instead of at her residence. It was written by my atty in court and explained by the judge. It was clear to me and I am sure anyone that read the order. The first time I went to pick them up at school I was told, by the woman at the front desk, that I was not allowed to pick up our boys without ex's expressed written consent. I had a copy of the order and it was resolved quickly.
When things don't go the way my ex wants she simply "ignores" it until she is challenged or corrected. It's annoying like a fly buzzing around your face.

[flourdust]

Are you expecting to get this report tomorrow, Thunderstruck?

[Thunderstruck]

Are you expecting to get this report tomorrow, Thunderstruck?

Tomorrow or Monday, we think Monday is more likely.

[flourdust]

Tomorrow or Monday, we think Monday is more likely.

Hope so. I will be delighted to be proven wrong!

[Catsmother]

I have been following this 'saga' and am now soo looking forward to Monday.

[ForeverDad]

Timing things like this is not uncommon.  I recall when my ex filed for our son, then 11 years old, to have an in camera interview with the magistrate.  We'd been in and out of court since he was 3 years old without a judge or magistrate seeing our child.  The motion was granted but... .court scheduled the court visit on my time and so drama and prepping was kept to a minimum.

[flourdust]

Hope so. I will be delighted to be proven wrong!

Did you get it?

[Panda39]

I've been thinking of you too.

I hope not hearing from you means you have a report as big as a phonebook that is taking some time to get through.

Panda39

[Thunderstruck]

Did you get it?

 No.

Yesterday we got an email from our L that said she was working on it and hoped to have it to us yesterday afternoon.

[flourdust]

Gee, from "It's done" three weeks ago to "She's working on it" today. Right, totally credible.



Here's my advice again from early last month. Still relevant today:

It's long past time that you started playing hardball.

Your lawyer needs to respond to you, or your lawyer doesn't get paid. You can certainly fire this lawyer and hire another, better one right away. In fact, I'd recommend that, because any lawyer who has recommended "patience" for three years on a CE report is an idiot and is not serving your interests.

And I think you should fire all barrels at the CE.  I'll repeat the advice I gave before: have your NEW lawyer send a threatening demand letter to the CE -- you want the report - completed or not - and all of her notes - by close of business in two days. Failure to comply will result in the lawsuit and formal complaint to the licensing board and family court. Then follow up as promised.

If the CE complies, you'll salvage what documentation you can from her. There's no way that she is going to complete a report without an imminent threat. My expectation is that she doesn't have a report, and it wouldn't even surprise me if she doesn't have much in the way of a draft or good notes.

Your big fear seems to be that she'll decide she's pissed off at you and write a negative report. First, I don't think she's capable of writing a report of any kind, especially if you give her only 48 hours. Secondly, even if she somehow managed to pull herself together long enough to write something negative, you've got a paper trail of three years of her incompetence that you can use in court to have her report thrown out.

Of course, your DH's ex can do the same thing if she doesn't like the report. The bottom line is that this report, complete or not, is becoming more and more useless for your case. Time to end it and see if anything can be salvaged from this fiasco. Do it!

[Nope]

Been away for awhile and just catching up now... .

Everyone wants to be wrong about this. But the truth is that the report isn't coming. It isn't. Not ever.She can't go from "waiting to release" to "working on it". She can't sit on a report that impacts a child's life so much that she wants to wait until the child isn't with the problem parent to release it when she was clearly just fine with leaving that kid in the situation for three years.

Others are right. You have to proceed as if there is no report. Because there is no report. And your lawyer is a bad lawyer. No good lawyer would let a client's case sit in limbo for three years while draining them dry for asking repeatedly for a path forward.

[Thunderstruck]

Yes, I know. Charlie Brown with the football sums it up pretty well. We feel pretty naïve/gullible for falling for the ole "It's allllllmost ready" line a hundred times. The CE sends texts to DH. He was asking her what was realistic because we didn't want this to be released during school and have it affect SD12's school routine. DH said just go ahead and release it. It's better for uBPDbm to blow up during the summer than cause problems for SD12 when she's starting the school year.

Yesterday the CE sent this to DH: "Without any uncertainty I am ready to release the report, but I truly do not feel comfortable emailing to everyone before Friday's exchange. If you do the exchange before then I will email it the moment I am notified."

He is going to email and text the CE when the exchange occurs tomorrow. My hope is that the report is then immediately released on Friday. That'll give the weekend for uBPDbm to blow up and then SD starts school the following week. If the CE waits until Monday then it may affect school.

[Waddams]

Yes, I know. Charlie Brown with the football sums it up pretty well. We feel pretty naïve/gullible for falling for the ole "It's allllllmost ready" line a hundred times. The CE sends texts to DH. He was asking her what was realistic because we didn't want this to be released during school and have it affect SD12's school routine. DH said just go ahead and release it. It's better for uBPDbm to blow up during the summer than cause problems for SD12 when she's starting the school year.

Yesterday the CE sent this to DH: "Without any uncertainty I am ready to release the report, but I truly do not feel comfortable emailing to everyone before Friday's exchange. If you do the exchange before then I will email it the moment I am notified."

He is going to email and text the CE when the exchange occurs tomorrow. My hope is that the report is then immediately released on Friday. That'll give the weekend for uBPDbm to blow up and then SD starts school the following week. If the CE waits until Monday then it may affect school.

My response to CE would simply be "if it's ready, release it now. it's been so long, it's been promised so many times and then you've given so many excuses why it's not out yet, that I truly won't believe you're done with it until I actually get my hands on it. until then, to me, your concern is just another delay tactic.  let me worry about my daughter, no more excuses, no more delays."

But then again, I've gotten rather blunt and don't give a sh*t about offending people much in situation such as this anymore.  DH should be prepared to go get SD12 directly from school and pull her out early, regardless of whose day it is officially, if there's a concern for the child's well being, as shown by CE's latest texts.

[david]

If the CE sent that message through email or text make sure you save it.