DH's exwife won't give over court ordered custody - Mothering Forums

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Old 06-23-2010, 02:48 PM - Thread Starter
 
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Has anyone gone through this? We are at the end of our ropes with her.

She has denied my DH his court ordered visitation for the past THREE MONTHS. He is supposed to have Friday, Saturday, and Sunday every week with his son. She dislikes the bond that her son and I have and told my husband that she will not turn over custody until he signs a Right of First Refusal, which won't happen.

She won't tell us where she lives and won't answer the phone or texts we send. What, if anything, can we do? We have exhausted all roads and just want to see him.

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Old 06-23-2010, 02:51 PM
 
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I'd call the police (non emergency number) and ask if they are able to assist you in fulfilling the court order. The police can contact her attorney and demand to know her whereabouts.

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Old 06-23-2010, 03:00 PM - Thread Starter
 
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We have called the police and they said its a Civil matter in which they won't get involved in.

It's so frustrating because they set in place these rules and if noone will enforce them, why even have them? We filed a contempt of court against her but they court date isn't for another month.

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Old 06-23-2010, 03:03 PM
 
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Calling LEO will get you no where!!! It is a civil matter and local PD as well as Sheriff dept will not get involved UNLESS there is a court order specifying that they are to get involved!

As for what you can do... take her to court. If there is a court order stating he has time sharing on XXX date-XXX date and etc then he has the right to these dates with the child(ren).

You can do all the paperwork yourself. Most counties have the necessary paperwork online that you can print out then just take to the COC (clerk of court) and file.

Given there is already a court case number, from the divorce... or whatever court order it is stating that he has time sharing schedule there SHOULD NOT be any charges to file. On the other hand, if there is any filing fees, it will most likely be around $50. Not a lot of money when it comes to spending time with ones child(ren).


Be sure to put in the petition that she has refused to allow the time sharing COURT ORDERED schedule. That she refuses phone contact, etc. Be sure that you two are both writing DETAILED interactions with this woman. You will need it in court!!! Every time he tries to call or contact her in any way... write down the date/time/number called/anyone who he did speak with and EXACTLY what was said. If you can, send any of these documentation letters to the person(s) that he/you spoke with, also Email them.



It is law that any parent, residential or not, provide the other parent with their physical as well as mailing address. It is also law that the parents provide one another with contact numbers and employment information. Further, she has to provide your partner with any and all information concerning the child(ren)'s schooling.

All states are different and have different laws... check yours online. If you wanna give me your state and county, or the state/county this is going on in I can help out and find the exact laws for you.

Def call the COC and ask them if there would be any filing fees for the petition he needs to file. One thing is, he will have to provide these documents to his X also... If she has moved from the last known address he needs to be certain to put that in his documents as well as mail her copies via USPS Certified Mail... where it has to be signed by her. This way, when the docs come back to him, he has this to take to court showing that she is NOT in the LKA that she provided to the court.


Hope any of that info helps... best wishes, it is going to be hard and long.
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Old 06-23-2010, 03:04 PM
 
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Horrible situation. I can't believe the cops won't help you. A month is a long time to wait to see the kid. I would go to court and try to have the custody changed to your DH.
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Old 06-23-2010, 03:05 PM
 
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We filed a contempt of court against her but they court date isn't for another month.
You posted this while I was typing up my post.... this is ALL you can do for now. There is nothing more you can do, other than keep trying to contact her/the child(ren) and documenting EVERY SINGLE INTERACTION THAT DOES HAPPEN!!!
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Old 06-23-2010, 03:06 PM
 
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And what is the reason you guys refuse to add a ROFR?

Because if worded properly, they apply BOTH directions equally, meaning she'd have to offer your H the time if she ever needed/wanted a sitter, too.

And, ROFRs can have limits on them as to how long the parent must be absent before they kick in, such as "more than 4 hours" or 6 or overnight or whatever depending on the distance between the two households, to prevent them from being unmanageable.
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Old 06-23-2010, 03:09 PM
 
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And what is the reason you guys refuse to add a ROFR?
Refuse to add a ROFR? That is a new one for me, what exactly does ROFR mean in actual words,
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Old 06-23-2010, 03:36 PM
 
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ROFR = Right of First Refusal...

But you're right, there is something funnily ironic in "refuse to add a right of first refusal". Giggle.
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Old 06-23-2010, 03:47 PM
 
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Yes, ironic for sure... I have never heard of a "Right of First Refusal" though. How would this be worded or placed into a time sharing court order?
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Old 06-23-2010, 05:30 PM
 
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Basically, it is a provision that is sometimes included in custody agreements that states that if one parent is going to be absent during his/her scheduled time, he/she must offer the other parent the opportunity to care for the children during that time before turning to a 3rd party (babysitter, grandparent, whatever).

These provisions can include time frames, to prevent one from having to call the other for a 15 min. run to the store, for ex. They can also include wording that allows family members to care for/spend time with the children without the parent present. They do not typically apply to things like playdates with the kids' friends, etc.

For example, one could say:

In the event that either parent will be absent for a period of more than four hours during his or her regularly scheduled parenting time*, he/she shall offer the other parent the opportunity to care for the child(ren) before hiring a babysitter*.

* here, one could also add: 'for any reason other than work'
** or 'before asking any other third party to care for the child(ren).'

Does that make sense?

The goal is to maximize the children's time with both parents, basically.
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Old 06-23-2010, 05:58 PM
 
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While I see the mom wanting a ROFR signed, I do not understand the mentality of "If you don't sign it you cannot spend time with your child" but then again I've never understood when parents do this. I hope your court date has a positive impact on this little one.

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Old 06-23-2010, 06:52 PM
 
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Yes, it totally makes sense. Thanks.


Custody battles and all the bull$H!T that goes along with them are never happy!
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Old 06-23-2010, 10:33 PM
 
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Has anyone gone through this?
Yes yes yes yes yes. And it is HARD to watch the man you love go through this.

After enduring this kind of crap from the time his son was ~6 mos. old, my husband was finally awarded sole legal and physical custody, when his son was eight.

When you're up against a mother who's not afraid of being found in contempt of court, you are playing a game of perseverance. Steel yourself.

I am very willing to discuss specifics and strategy in more detail, if you want to PM me. (I'm not opposed to sharing info. openly, but I already have done that quite a bit. And without knowing more detail about your situation, I don't know which parts of my family's experience would be most helpful to you.)

Some important basics:

* Document EVERYTHING. Sure, people can lie in a log. But for some reason, when a judge or custodial evaluator is hearing two different stories, it lends credibility if you've kept a log that backs up your story. Logs can also help you identify patterns and piece together information. For example, you may look back and realize the times the ex was most difficult to deal with happened to coincide with her shacking up with new boyfriends... but you didn't know about that at the time.

* Read the laws and case law for yourself. If the letter of the law is favorable to your case, do not accept a lawyer's - or even a trial court judge's - explanation that in practice things are done or enforced differently than they are, on paper. Don't shy away from insisting that the letter of the law be followed.

*Don't give up. In one year alone, my husband had at least 3 hearings where the judge ruled his ex-wife was NOT in contempt for repeatedly denying him access to his son (when he traveled to visit him, after she moved him across the country)... because the law only said he was entitled to "liberal parenting time" when he visited out there, it did not specify HOW MUCH parenting time was "liberal". So how could she be found in contempt for deciding that 3 hours in a week-long visit was "liberal"? It was SO frustrating! But in the end, it worked in my husband's favor. Ultimately, he asked for custody, basically arguing that the court was incapable of enforcing his parental rights and dealing effectively with his ex-wife's persistent efforts to cut off his relationship with his child and that this was not in the child's best interest. The new judge agreed with him - and even cited all the prior hearings he'd lost, as evidence that there WAS, indeed, a problem with leaving the child in the mother's custody: she was good at getting away with this crap!

* Talk with your husband and become like-minded about when you'd be ready to fight for custody - and how it should be structured, if he won. The ex need not switch roles with your husband and become a minor figure in the child's life. Parenting time could still be close to 50-50. But if he had the title "custodial parent", the cops WOULD intervene, if his ex refused to return the child to him when it was his parenting time. (Not that you WANT cops involved - that's upsetting to the kid - but sometimes that shift in the balance of power, the knowledge that the law's no longer on her side, will cause a problem mother to toe the line and actual cops aren't necessary.)

* He must show up on time to pick up his child every single time he's supposed to have parenting time, even if his ex says not to come. You must find some way to document that he did this. He must be able to prove he was DENIED visitation, not that he didn't show up. Same with other parental involvement. If she tells him not to come to the school play or parent-teacher conferences or his son's soccer games, he needs to go anyway. If she flips out, it will be clear SHE behaved badly, not that your husband didn't care enough to attend. (Hopefully, being in public will keep her from behaving in a way that would embarass the child, even though she may be angry.)

* Focus on the right thing: Some alienated fathers who get lost in their own pain end up concluding the best, most selfless thing they can do is to walk away, so their child's life can be free of conflict. But absolutely everything I've ever read about children whose fathers DID walk away shows that kids fare BETTER knowing their Dad was driven to fight for contact with them; as opposed to seeing that their Dad was capable of walking away and losing them. Your husband's pain is awful, but it's not the important thing. When a child has TWO loving, capable, non-abusive parents who both WANT to be involved, it is abusive and it is neglectful of the child's most basic, most important needs to try to terminate or sabotage the child's relationship with one of those parents. It's harder to justify backing down and easier to continue the good fight, when you remember that your child's being abused (albeit emotionally).

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Old 06-23-2010, 10:47 PM
 
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i am so sorry. my sister has been trying to get access to her son for almost 5 years now. her ex has managed to keep her away from her son at every turn, school, phone calls, visitation, counseling, etc. she has been to court numerous times and so far, nothing. it's heartbreaking, but please don't give up. in her case also, police cannot get involved unless there is a police clause in the court order.

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Old 06-23-2010, 11:12 PM
 
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Originally Posted by Ione View Post
And what is the reason you guys refuse to add a ROFR?

Because if worded properly, they apply BOTH directions equally, meaning she'd have to offer your H the time if she ever needed/wanted a sitter, too.

And, ROFRs can have limits on them as to how long the parent must be absent before they kick in, such as "more than 4 hours" or 6 or overnight or whatever depending on the distance between the two households, to prevent them from being unmanageable.
Based on context, I'm guessing the ROFR issue is about Mom not wanting the child to ever be alone with YOU (the OP, the Step-Mom) during Dad's parenting time?

In our state, ROFR law does not apply to other adults who live in the house, just to sitters or extended family members outside the home. But reason must prevail:

* You are more than a babysitter to your step-son, although naturally, if his Mom feels threatened or "replaced" by you, she may wish to portray you as even lower on the totem pole than a sitter. Regardless of Mom's feelings, you should be allowed to care for your step-son or take him places if, say, your husband gets called in to work during his parenting time - and it may not be appropriate to place time limits on that. If your husband got called in to work for 6 hours on Saturday and you dropped off your step-son with his Mom during that time, would you be able to get him back - for the rest of the weekend - once your husband got home? Bottom line: your husband cannot sign off on never leaving his son with you, in order to regain access to his son. Perhaps he should agree to a ROFR that doesn't include family members who live in the house.

* On the other hand, your husband should not routinely exercise visitation at times when he cannot actually parent his child - and leave the child with you, because it's HIS parenting time, so his ex "can't have the kid". If THAT is why the ex is angry she still doesn't have the right to deny visitation, but when you guys return to court, your husband should do the right thing and say, "I don't want one minute less with my son. But we need to adjust which days I have him, because my work schedule doesn't always allow me to be home on the weekends."

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Old 06-23-2010, 11:29 PM
 
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That sounds like a messy situation, and it must be terrible for your husband to not be able to see his son... but, can I ask... is the child school-age? Or in daycare all week? It sounds like his ex is handling this terribly, and I'm sure there's a whole story there, but sending her child away every single weekend, especially if he's in school or daycare all week, means she never gets a whole day to spend with her own kid. And that's terrible, too.

Perhaps I'm wrong (I hope I am). Because that's a very unusual arrangement. Usually it's managed so that each parent gets time with their child that is not encumbered with other things.
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Old 06-23-2010, 11:35 PM
 
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Every week you call the police at her house. Get the time, date, officer/phone operator's number. You might want to do some prep work with the sheriff.

Jeannie gave you a lot of good information.
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Old 06-24-2010, 12:28 AM
 
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* He must show up on time to pick up his child every single time he's supposed to have parenting time, even if his ex says not to come. You must find some way to document that he did this. He must be able to prove he was DENIED visitation, not that he didn't show up. Same with other parental involvement. If she tells him not to come to the school play or parent-teacher conferences or his son's soccer games, he needs to go anyway. If she flips out, it will be clear SHE behaved badly, not that your husband didn't care enough to attend. (Hopefully, being in public will keep her from behaving in a way that would embarass the child, even though she may be angry.)
This might be a little difficult, given the fact that they do not know where the mom lives.

OP, when you return to court, can the pick-up/drop-off time or day be changed so that the child is picked up directly from school/daycare? That might avoid a lot of problems.

How is she being served notice that she must go to court if you don't have an address? At work? If you know how to search your state's judicial database, you might be able to find the case at this point and it might have her home address. My state has something like this.

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Old 06-24-2010, 02:07 AM - Thread Starter
 
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'

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Old 06-24-2010, 02:10 AM - Thread Starter
 
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I just wrote a big huge response and it didn't show up. I write it again tomorrow. TIRED!

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Old 06-24-2010, 04:41 AM
 
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tummy gave you some good advice. I would also have your lawyer write up a general letter requesting the addressee to contact their office with any information (phone # or address) of the mom or have her contact said lawyer. Send certified mail, they should be sent to people who may have general contact with her such as her family or friends. Again anothr piece to show that your DH has attempted locating her, a newspaper ad in the classifieds would also be helpful. Again you probably wont get any leads but at least you can show proof that during this time you have actively been searching for her.

Have you guys tried sending something certified adddress correction requested to see if you get any leads from her having her mail forwarded?
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Old 06-24-2010, 12:13 PM
 
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I have no experience with custody issues, but I have had some experience with finding people who don't want to be found. I would encourage your husband to find a local private investigator to run what's called a skip trace to locate his ex. Skip traces generally don't cost more than a couple hundred dollars and are usually a very effective way to locate people. Once you have a fresh lead on here whereabouts your husband can use that address to send her paperwork via registered mail and to gain access to his son.

Of course if you've already tried this approach than feel free to disregard.

Good luck.

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Old 06-24-2010, 01:36 PM
 
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Every week you call the police at her house. Get the time, date, officer/phone operator's number. You might want to do some prep work with the sheriff.
Actually, you should be careful doing that. I'm sure the police have already explained to you that they're not authorized to enforce a civil order on behalf of the NCP. So you can't claim to be unaware of the fact that calling them to the ex's house will accomplish nothing. But you ARE aware that weekly police involvement would be upsetting to the child. So, later, when you're all in court or with a custodial evaluator discussing how much time the child should spend with whom, the ex could make a very good point that you guys were willing to upset the child just to harass her with the police, even though you knew it wouldn't accomplish anything.

My husband dealt with this dilemma and the police ended up advising him to call the dispatch # each time he tried to pick up his child and simply report that he was there, ready to pick up his child, but that his ex and the child were not there or she refused to let him take the child, so he was going to leave. Then there's a recorded phone call, with a date and time. You can request a copy of that recording (which usually comes with a written record of the call, on police letterhead). Potentially, the recording could be played in court or for a custodial evaluator. But dispatch did not actually send anyone out, because they couldn't do anything. Then the child wasn't traumatized for no reason.

On a larger scale: Check the laws where you live. Here, our "custodial interference" (parental kidnapping) law is worded in a completely egalitarian way. A NCP who refuses to return the child at the end of court-ordered visitation commits custodial interference. But a CP who refuses to surrender the child to the NCP for court-ordered visitation ALSO commits it. ON PAPER, the CP is just as susceptible to arrest and prosecution as the NCP. IN PRACTICE, absolutely no police officer will arrest a CP for this and absolutely no prosecutor will press charges against a CP for this. That is hard and fast policy and there is no deviation. Ever. Of course, law enforcement and an elected prosecutor are not supposed to be able to change the law by selectively deciding which laws will and and won't be enforced. But such practices don't change unless somebody acts as the squeaky wheel. Find out if this is also the case in your community. I can't say I've been successful changing anything here YET. But my husband and I have been noisy about it...and we're about to get a new prosecutor...

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Old 06-24-2010, 01:45 PM
 
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This (showing up for visitation) might be a little difficult, given the fact that they do not know where the mom lives.
Good point. I kind of got carried away and forgot that detail.

If, by any luck, the visitation order instructs your husband to pick up his child at some neutral location, go there like clockwork even if you know she won't show up with the kid.

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Old 06-24-2010, 01:48 PM
 
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I just wrote a big huge response and it didn't show up. I write it again tomorrow. TIRED!
Obviously, I'm long-winded. On this site, you have a limited window of time between hitting "Reply" and being able to "Submit Reply". If you wait too long, it's all lost. So whenever you write a long post, before clicking "Submit Reply", highlight the entire thing and "Copy" it. Then if it gets lost, you can log back in, go back to "Reply to Thread", hit "Paste" and put it all back.

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Old 06-24-2010, 07:14 PM - Thread Starter
 
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Ok, so to try this again and try to answer some of the missing story pieces.
The ex puts DSS in daycare 3 days a week. My husband works at night. She never once gave him the chance to care for his son during those 3 days a week. She claims that my husband leaves DSS alone with me ALL the time which isn't true. He works at 8pm and dss goes to bed at 9:30, a whole hour and a half! She has no pronlem leaving her son alone with her husband for hours on end. We refused to sign the ROFR because of course it was one sided, written by HER.
I have a very special bond with my husband and step son and she, although claims to be very happy with her new husband (who she cheated on my husband with... oh, and it was his best friend and best man at their wedding, lovely, huh?) anyway, my dss calls me Mommy and we promptly correct him because I know my place. She feels I don't because I treat him no less than my own so she gets really upset that he love me and his dad so much. It's a messy situation with more to it. Bottom line she is only doing this to punish us and not thinking about whats best for my dss.

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Old 06-25-2010, 04:14 AM
 
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Quote:
Originally Posted by Lexibaby View Post
We have called the police and they said its a Civil matter in which they won't get involved in.

It's so frustrating because they set in place these rules and if noone will enforce them, why even have them? We filed a contempt of court against her but they court date isn't for another month.
this has also happened to us
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