Upcoming court date...anyone experienced this?

Megan - posted on 03/09/2010 ( 23 moms have responded )

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There are several branches involved in the latest of an on-going battle, but I was hoping to get some feedback on one specific complaint my husband's ex has made. Specifically if anyone has encountered this in court and how the courts view this.



My husband's ex has formally complained that he shares his visitation time with other people and she is asking the court to mandate that if he cannot personally spend time with the kids then she has the option to keep them with her.



Please let me clarify. On days that my husband has had mandatory overtime or on winter vacation days on which he has had to work and that has overlapped with his visitation time, he has allowed the children to stay with their maternal grandmother. She and her husband live very close to my husband's place of employment, she has a safe home, she has been in their lives since birth, she dotes on her grandchildren like all grandmas do, and we trust her. I have met her personally and seen how caring she is and how much she loves them. She has also been very understanding of my husband and my situation.



The children's mother has recently decided that she doesn't want the children to see their grandmother (hence the motion), but she had no problem leaving them with her for two weeks so that she could go to Europe with a boyfriend. I am not sure where this tension between the two has come from, nor do I care to know, honestly. All I know is that she is their grandmother, she loves them, and offers to help us when we need it.



So, basically, my husband's ex wants the court to mandate how their father allocates his visitation time, and if he cannot personally be with them she wants the option to take them back. I am interested to know if anyone has had a similar experience and if the courts are likely to consider her request. Thanks so much.

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Megan - posted on 03/10/2010

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Betty, in a perfect world you may be right. I mean absolutely no disrespect, but I do not agree with you. There is no right of first refusal clause in the divorce decree. Please understand that we have been through a great deal simply to enforce the court order that my husband be granted visitation. He has never fallen behind on child support, even though there was a period of almost two years that he did not get to see his children. (I know the two issues are not legally linked; this is simply an illustration.) The bm does not inform my husband of any of the children's medical appointments, school functions, etc. She has interfered in my husband's attempts to obtain medical and school records. This is not common sense. It is unfortunate that my husband does not get to be the major influence in his children's lives that he should be, and he has to take responsibility for the part he played in that. But there is no excuse for a mother's actions which do not reflect her children's best interest.



Back to the point at hand, in a perfect world where grown people acted as adults there may be room for compromise. But the bm does not have to (and would never) ask the children's father for permission to leave them with anyone she wanted to (note the two weeks she left them with their grandmother to visit Europe with a boyfriend...turns out she was planning on moving there.) This is simply a play for control. Again, Betty, no disrespect.

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I haven't dealt with that problem but see if the area you live in has grandparents visitation rights. You could also put in your decree that if your husband is not able to care for the children because of work then the mother has to be asked first to watch the children and of she can't then your husband can find other means for a sitter.

Arrynne - posted on 03/20/2010

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Most she can ask for is right of first refusal. Which requests that she be contacted and offer the time if the only option is to leave the child with a babysitter or daycare. She cannot prevent the child from visiting family members.

Megan - posted on 03/13/2010

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There is no FROR clause in the divorce decree. For a great many reasons I will not get into here (and based on my research) this clause would not apply in our situation. We live in OH and I believe the grandparents can petition for visitation in our state, but everyone else lives in KY where there are no grandparent rights. Thus far the case has remained in OH jurisdiction, but BM has consistently threatened to move for a change of venue. She has not actually done so yet, and our attorney believes that this is because she would not get away with the refusal of visitation she does in our courts.

Julia, thanks so much for your prayers. The children are the truly innocent ones and the ones most hurt.

Thanks for all the advice and support, ladies.

Julia - posted on 03/13/2010

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Is there a FROR in this case? First Right of Refusal is something you(he) can request that if she is not available to care for them, then he is automatically given priority to spend that time with them. He may also want to have the grandma petition for visitation or file joinder so that she may be granted visitation rights. A lot of this depends on your state as well.

I run a non-profit organization to help people with changes in their family dynamics. I have a few other suggestions that I would make on a more personal level, so if you would like to contact me, you may do so by calling the Joshua Rose Foundation at 760-252-5750

Best of luck to all.I will be praying that this situation is resolved for the best interest of the children and that the adults can look past their hurt and anger with one another and think of the innocent children above all else.

Rosalinda - posted on 03/12/2010

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Betty,I disagree with you but do not mean to sound harsh if I come off that way. I am a BM and a SM. While my ex HAD visitation rights I had no say per the courts who he left them with on his time unless it was an unsafe enviroment for children. If the BD decides that he wants to golf or work overtime it is of no concern to the BM if their child is being taken good care of. In the end it is the BD loss for not spending time with the child. I agree with Megan about the BM. The BM would not ask the BD for permission to leave the child with a family member or other suitable baby sitter. As a SM, there have been several times that I have had their daughter on our time when my husband has been at work (he works 24 or 48 hour shifts). In the custody agreement from the courts, that is agreed upon by the parents should be what is followed. I am sure my husband ex wife would love to have her daughter on the days he is at work but that isnt part of the agreement. Also, my husband would give anything to have his daughter the days he is off and his exwife is at work but again not part of the agreement. We have 50/50 custody. One week 4 days the next 3. Sounds to me the BM needs to move on and let go of the control she can no longer have on her ex.

[deleted account]

Thanks for sharing Abigail. I'm glad you have not made a huge deal over it and are understanding. Wish BM our way would take her attorney's advice. Instead she fires them one after another if they don't agree with her.

Abigail - posted on 03/12/2010

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I have had personal experience with this. My 9 yr old goes to my ex's for most of the summer and often times my son is at his grandparents' house (my ex-in-laws) more than he is with his biological father. It was frustrating to me because I didn't want my son away from me in the first place and then to find out that he wasn't even with his dad that much, who had complained about not getting to spend a lot of time with him. I thought - why should my son be away from his mother for the summer and just be at his grandparents' house when he is supposed to be with his dad. When I brought this issue up with my attorney, I was basically told that I don't have much say in the matter. As long as my son is safe, where he spends his time at when he's with my ex is out of my control... Hope this helps...

[deleted account]

Megan (and Penny) I totally understand, life is meant to be relatively happy and it's hard to be that way in the face of almost constant conflict. I dont think yr sappy at all- it's not an unreasonable thing to want to co-exist peacefully with the children's mother. It will often feel like you cant do naything right- the only the thing I can say is from time time something will happen that will make you feel you ARE doing righ and give you the strength to go on. Have you thought about Family Counselling? I was telling Penny about this- it's just for you and hubby but it's a mixture of marriage, personal and familyy issues counselling it helps you learn to cope better, to see each other's perspective and how to not allow BM to upset the family. We recently started it and it's the BEST thing we ever did, as I said to Penny I just wish we'd done it years ago.

Annalea - posted on 03/12/2010

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its a control thing.. i've dealt with the same thing..shes trying to control what you and your husband do with the kids because she cant when they're away from her..my husband is out of town a lot for work and when he's gone she tried to say that my stepson needs to stay with her since his biological parent is gone..which doesn't happen, but she just wants to have that sense of control. i doubt anything will happen when you go to court though.

[deleted account]

Megan.. I feel like you do often too. I would love to take my daughter and just run away from all this un-needed drama! I used to see only the good in people and naively thought hubby was exaggerating about BM. I hate to say my husband has changed me, but I honestly feel like all I see in BM now is the bad and potential of bad. And that's horrible to think considering I've never even had conversation with this woman.

Megan - posted on 03/11/2010

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I hear you Mandie, and yes, I know justice is not blind. The thing is, I am very uncomfortable with conflict, yet my husband's ex thrives on it. Sometimes I just feel like I can't take any more. I want to support my husband but it is very hard most of the time because my instinct is to run away from trouble. It's like I just can't seem to get it right. I don't mean to be sappy but it has been a very rough last couple of months.

I really do appreciate everyone's advice.

[deleted account]

Megan, 1stly excuse the 'bitter' aspect of this but I just dont want you to get the kind of shocks I did. In my experience (we have been going through this with BM with both Family Court and Criminal Court lawyers for about 7 yrs) both personally- in our case- and professionally as a Police Officer- a goodly portion of what lawyers do is just to see if it works/they can get away with it. They know it's BS but they give it a shot anyway- what do they care, their client is still paying them at the end of it all? Some judges are more lenient than others- I hate to say it- depending on whether they worked in prosecution or defense prior to their appointment to the bench. They say Justice is blind but that's a load of BS- it's just as 'political' as anything else in life and you're generally dealing with every player in the 'game' having their own agenda, including Court officers.
That said, I have also experienced BM and/or her lawyers embarrassing themselves by not having the full facts or outright lies. One of her Family lawyers once rang ME a few days before Xmas (not hubby- God alone knows why!?) to get stuck into me about the kids not being allowed to have time with her parents (she was unable to see them herself for reasons I cant get into publicly) on Xmas Day. It turned out it was the father of one of her OTHER children that he was meant to be talking to but she told him it was us for whatever reason. She also told one of her Criminal lawyers early on in the piece that a certain Protection Order wouldn't be needed b/c they were reconciling, the lawyer put this to the Court until my hubby politely informed the Court that was in NO WAY the case.There are many more similar stories but the best was when we got married I was supposed to be giving evidence in a trial that was scheduled during our honeymoon and for months I had spent time with the DPP arranging that I wouldnt be present but if required could give phone evidence. It turned out the lawyer in the case just happened to be BM's lawyer and when I wasn't present in court he said- in open court, so it appears in the transcript of that case "You Honour I happen to know that the Constable could not possibly be either on her honeymoon or have got married b/c her boyfriend is married" he said this b/c BM had NEVER told him they were divorced. Not much misuse of his position/case confidentiality!! Naturally no one would just take my word for it so I had to return from my honeymoon to court and present our wedding cert to the Judge to prove that I was indeed married and on my honeymoon. In open court! And then they didnt even ask me ANY questions about the case!! MORTIFIED!

[deleted account]

we had similar problems with my husband's ex - I feel your pain!

Betty Jean is right, there is something called the right of first refusal - if your husband is going to be gone for more than 3 hours (I was told 3) then he has to call the biological mother and ask her to watch the child/children. Your husband can have this option as well, if his ex goes anywhere longer than 3 hours she has to call him to watch the kids.

She has to have a very good reason, and provide evidence to the courts as to why the kids cannot spend time with their grandparents. Just because she doesn't want them too is not a good excuse. While I'm thinking of it, she can't complain if the kids are left with you - you are considered part of the household so she doesn't get the chance to refuse if they are with you. I don't know if this extends to grandparents or not, that is something to look into.

Good luck to you, it really does get better! It may not look like it yet, but it will =)

Megan - posted on 03/11/2010

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Mandie, you bring up a good point. What I can't figure out is why her attorney is filing some of these charges. She is supposed to be a really good attorney. She has already been embarassed once by her client. When my husband was representing himself his ex claimed that he was failing to pay child support. Her attorney filed the charge, they went before the magistrate, and the magistrate got furious with her attorney because he has never failed to pay. A lot of these other motions are just as ridiculous. I can't figure it out.



Thanks for all your advice ladies.

[deleted account]

I'm from Australia Megan and GOSH I wish you lived here- she would never be allowed to do it here as it's part of the Family Law Act that no-one has the right to interfere with the children's relationship with anyone in their family- and the legal definition of family is so broad it takes up about 2 pages in the Act. Our BM tried to do this to us - we are ( I ahave now retired but at the time was) Police Officers and obviously worked opposite shifts to be home with the children during his custody time and she tried to prevent me caring for them. The judge basically laughed at her and her lawyer and moved on to the next point. They, many years later signed an agreement to let the other have 1st choice of babysitting if needed but neither has ever used it as it's too much of an ordeal to organise. PS- the judge also felt that given her confronttational nature in front of the children it was best that parental contact was limited.

Desi - posted on 03/10/2010

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that is sad really! really i dont think she should even have a say bc im sure she send her kids to some one when she has her! well then you guys should do the same but really that wouldnt be far to the kids! its family and who is to say you sk isnt able to see them! but hope eveything works out!

Betty - posted on 03/10/2010

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If he was away from them for longer than 4 hours than BM should have been allowed to take her. I thought this was automatically a rule and I believe it is called right of first refusal. He should be allowed to take them when she is not able to watch them too. The children should always be with their mother or father since their exposure to both parents is now limited because the two of them do not live together. I don't know why this wouldn't be put in motion and I don't think it's ridiculous at all. It sounds like common sense to me.

Megan - posted on 03/10/2010

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Penny, I agree that this is a ridiculous request, but we have felt let down by the courts so many times in the past. I'm sure many other women in this community feel the same way.



Diana, thanks so much for the info. We can even bring in documentation from my husband's employer proving that he was working during the times they were with their grandmother.



Jessica, I think it is good to try to see things from multiple perspectives, but with what little time my husband actually gets to spend with his children he would only leave them with someone else if he had to. You are in a very different situation if bm is giving up her time with her kids to party or whatnot. I do understand your concern.



Another point is that we feel the children should not lose contact with their grandmother simply because their mother has issues (I think you know what I mean). We have all spent time togather with the grandmother at times when my husband does not work, as well as time with my husband's family. (And this is a big deal because of the distance apart everyone lives, and considering the limited amount of time the kids spend with us). I think it is really sad that their mother seems to cut people out of their lives for irrational and personal reasons when it is obviously not in the best interest of her kids.

Jessica - posted on 03/10/2010

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Im in a situation kinda like yours, but its the other way around. my husband and I have custody of my sd and the bm still lives with her parents. I know plenty of time when the bm is suppose to have my sd but leaves her with the grandparents because she wants to go hang out with her friends or go party or something like that. The next time we go to court my husband was wanting to make it where when it is the bm's visitations she has to be there and not leave my sd with family. Now I can see it from both sides since I read your post. Your situation is different because your husband is at mandatory work not going out and having fun. I dont have much advice but you OPENED my eyes on this one. Thank you!!

Diana - posted on 03/10/2010

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I used to do investigations on custody cases and I have seen requests like this before. I've seen instances in which the court has granted the request, and others when it was not granted. It's all case by case and specific to your situation. I would point out that the child is with someone else because of work reasons and not other reasons like daddy going golfing with his friends or something else that can be avoided/rescheduled.

And I like Penny's response!

[deleted account]

I haven't dealt with that personally but I think that is a ridiculous claim on BM's part. If she claims that his time be mandated then your husband should have the option to see his kids when she's unavailable, instead of daycare or the grandma or whatever the case is. Bet she won't like it when it's thrown back in her face.

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