Update July 27, 2011-The Hearing on the Motion to Modify Child Custody and Child Support

I woke up at 2:00 am and left for the hearing in Oklahoma City. I live in Arlington, Texas so that will be a 4 hour drive, hopefully less. The drive went smooth and it gave me a chance to think more on the timeline I put together last night (see the last blog).

By the time I reached Oklahoma City, it was 5:00 am. Not much traffic at this time and feeling hungry, I stopped off at Denny’s on I-240, grabbed my laptop and found a booth with an outlet close by as my laptop’s battery will last around 30 second unplugged.

My list has been modified so that every point we make will have a supportive document. No time for hearsay arguments. the short list looked something like this: Deceit, Greed, Inability to Parent Effectively, and Custodial Interference. Under each heading was my list of documents to be used as evidence. We will present these to opposing counsel before court begins. He will probably argue thee needed to be submitted back on July 8, but most of this his client has anyway and even if denied, it will come up in the course of discussion. Anyway, I just hired counsel so that will be a moot point. The main items to be used as evidence were already hand delivered back on July 1 at the hearing on the Writ o Habeas Corpus. Maybe this time the court will look at them.

As usual, in my haste, I left documents behind on my home PC. Remembering I tend to do that, I had the foresight to install TeamViewer which gave me remote access. Software for the chronically absent minded.

I sent an e-mail to Mr. Tillotson that I really had made it and went to his office at 8:00 am. The hearing was at at 9:00 am. We hadn’t met yet except for our e-mail and occasional telephone conversations so I hope I have what we need.

After going over what I had, luckily it looked as if everything was in place. The “that was then, this is now” approach looks like that will be the way to go.

When the hearing began, the discussion centered around the issue of appointing a Guardian Ad Litem. at my insistence, Mr. Tillotson had filed our own motion on this 2 weeks ago. Her attorney argued that decided against it because of the cost. As I felt that an appointed guardian would be in our favor, and would clearly give the message I had nothing to hide, we held on to our request. The next discussion was around my previously filed  Motion to Change Custody with respect to my daughter.  This then, expectedly, prompted her attorney to say there was nothing filed as to that motion and that it shouldn’t be heard anyway as he was improperly served. I pointed out that he was served by US mail with certificate of service, and the file stamped copy was shown to him. There is nothing in the rules of the court that say he must be served by certified mail. He simply hadn’t noticed that, under his Motion to Change Custody on the docket mine was there (Motion to Modify).

 

So much for keeping up with the daily dockets.   The judge then stated both Motions would be heard today   after my ex-wife and I would meet with a mediator.She also said it was her opinion that in the best interest of the children, there would be no split. Where custody would be granted, there shall both the children go. After we finalized our initial arguments, we stated that because I hadn’t had the opportunity to have equitable time with the children because of my ex-wife’s reluctance to allow contact and due to the temporary order that prevented me from initiating any contact with the children, moving forward on the main issue of preference would be prejudicial. The judge then decided that both the children would be brought back to court for a private conference with her. This was about 11:00 am.

About a half hour later, it was announced the mediator was unavailable. My ex-wife’s attorney offered that she would allow visitation with me if I would be willing to let her keep both children until which time a guardian could complete the evaluation and they would in turn drop the false allegations. I told my attorney to tell them no, in that all the arguments and false accusations have been successfully answered and put to rest, and that he was trying to lay foundation for a later court case to show that the new custodial relationship was successful. We were in a sense, now back to the Writ Argument without their argument. Done.

About 12:30, my children walked into the room outside the court. Immediately, my son came up to me and said, “Dad, I’m ready to go back with you.” My daughter also told me she wanted to come. I looked at my attorney and said, “Go get the judge!” What a turn around! I can’t remember when I cried so hard.

The turning point was the night before. As suspected, there was more going on behind their doors that I wasn’t supposed to know until after the hearing.I told them to tell the judge what they had just told me, not to hold back, and be honest.

An hour later, we were summoned to the court as the judge had finished talking with both my kids. She informed us that both of my children had expressed their preference to live with me. Without the details, of course. We were then allowed to proceed with our arguments. Needless to say, we now had the advantage. When it came to my statement, I decided that it would be unnecessary to present all my data as my ex-wife and I were going to have to talk again. If I presented what I had, if front of the court, I really don’t see us ever being civil to each other again. There are somethings that are better left in the past. So, in the end, all I had to say was, “Your honor, I have more than enough information here that, frankly, I don’t want to bring up. That would not be in anyone’s best interest. I will say though, after looking at our homes and lifestyle before my son came to live with me and now, there is one common variable as to the proximate cause why my ex-wife and I can’t seem to get along and to explain the degree of custodial interference that has transpired since custody was initially granted to me in December. . And he is not here at the bench. You see, one thing I remember at that hearing was the judge commenting on how well my ex-wife and I were able to work through problems with the children. Why that has changed seems quite obvious. And so, your honor, since my ex-wife appears to have made her decision and choice between my children and her friend, I will happily bring them with me should the court agree.”

The judge then asked my ex-wife a question as to what the bible says (my ex-wife has become a bit of a fundamentalist) regarding a parents relationship with their children. After my ex-wife answered the judge suggested she go back and read it again.

The judge then announced that custody of both my children would be with me. Other arrangements were madeis is the case in custody changes. We will be back in December to see how it works.

My son happily came back home with me and I agreed for my daughter to remain behind to visit with her mother until the 16th.

And I’m going to get some needed sleep before I figure out a way to pay back all these payday loans.

I now owe $2,500.00. Anyone who would like to donate anything, I would be eternally grateful.!!!!!

 

Thank you, Mr. Tillotson.

 

 


Update July 26, 2011-Surprise of the Night

Cost to date: $2300.00

Assets: My salary=$2076.00/ month (net).

Can you help? Any and all donations will help!!!

I had to add another one of those payday loans today…

I’ve finished completing my timeline. By adding each event as it occurred on a calender, it’s very easy to show why there is a significant, permanent, and material change and how it directly relates to custodial interference. It has also helped identify which supportive documents I need to present as evidence. By showing my son’s absences from school on the timeline, downloading the attendance roster from the school, and overlaying the weekends of visitation, adversarial e-mails and voice messages, it is very clear how they all interrelate.

 

       In addition, I’ve used resources such as the ABA’s Chapter 12 publication on Child Custody and Visitation and compiled a list of determinants in favor of child custody awards. In this, I’ve again used the “compare and contrast” theme to predict how the judge may view each of of us These included (See Excel Sheet below) wishes of the child (if old enough to capably express a reasonable preference); nonmarital sexual relationships and show of harm; mental and physical health of the parents; adjustment to school and community, parental use of excessive discipline or emotional abuse, age and sex of child, undermining the child’s relationship with the other parent; need for continuation of a stable home environment;  religion and/or cultural considerations; support for interaction with members of extended family of either parent; interference with visitation; and opportunity for interaction with members of household. When I looked a it with a jaundiced eye, I still come out ahead.

The  difficult part was to be “in the mind of the plaintiff”-that is to say, where my ex-wife is most likely to attack. That requires a bit of malicious introspection-that is being extremely self-critical-in order to see just what may be used against me. That ended up pretty easy as the allegations put forward in their Motion to Modify Child Custody were really their only point of attack. Since I’ve already addressed those issues (negative hair follicle test for drugs, substance abuse counselor letter stating no evidence for drug or substance abuse, etc)  it now boils down to “child preference”.

Just before I left for the long drive to Oklahoma City, I went back to look at my AT&T Family Maps history. 2 days ago, it looked like my son’s cell phone was on but no where near where he lives.Today at the same time it was near his mother’s home where he’s staying. On my bill, it looks like his Sims card has been switched out as that is definitely not the cell phone I gave him. Judging where the phone was located, it looks like my ex-wife’s boyfriend BAG made the switch.

That has been my suspicion all along. Goes along well with demonstrating custodial interference with third party intervention.

I went on Facebook and my son was on the chat. I’ve tried to talk with him before through this medium but it hasn’t been successful. However, tonight was a different story…

Now that is interesting! Looked as if the honeymoon is over. Couldn’t ask for better timing!

 

 

 

 

 

 

 

Then, all of a sudden, my son was off line. Looks like maybe, something may change tomorrow…..


Update for July 26, 2011

Expenses to date: $2000.00 (payday loans)

Income: $2076.00/month (net)

Care to help? I need it!

Tomorrow is the day. This morning at 8:00 am I called to talk with Mr. Tillotson for the pretrial conference. The approach will simply be to demonstrate the severity of the custodial interference that has occurred over the past 4 months. The plaintiffs have now decided to focus on child preference since all their allegations have been proved to be false. The subject of child preference still must be tempered with what is in the best interest. That way, the previously accepted “whims and desires” (Davis vs Davis, Kennedy vs Kennedy) that do occur with children may be still considered a factor. Nonetheless, preference is still the deciding factor (Nazworth vs. Nazworth). Whether we can use the “intelligent preference”  argument, that is to say there has been an enlightenment as to future merits (Yates v. Yates, 702 P.2d 1252, 1254 (Wyo. 1985) when that preference was decided is yet to be seen ( when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment as to its future welfare, based upon facts and not mere whims, its wishes are one factor which may be considered by the court in determining custody -Yates vs Yates)

Another issue that has come to play is from Foshee vs. Foshee.  In that case, it was decided that when two people have demonstrated an inability to work together in the best interest of the children, it is a reason to modify child custody as this is a significant, permanent and material change. In that case the mother was awarded custody.

I can’t argue that the Foshee decision is an important factor here. The goal therefore, will be to show that the proximate cause for the inability to work together is due to the custodial interference and not simply to be taken on face. In order to do that, I am preparing a “contrast and compare’ timeline between how my ex-wife and I were able to work together in the best interest of the children prior to the time when custody was awarded to me and the current situation. That will require identifying factual evidence towards the “turning point” in our relationship that provided the spark for her desire to regain custody. As a I thought more on that, there is one common variable-her current boyfriend.

With that in mind, I spent the next 12 hours compiling what I feel will give us the edge-to show how all the deceit and greed were initiated by a third party and there was the cause for everything that has transpired. Had that third party not been a factor we would probably not be in Court to change custody.

Still, there is the issue of “child preference”. How that will play out depends on the current living situation with my children  and their current living situation. Mr Tillotson confirmed that the protective custody is out. I think it’s time I find out just exactly how my children feel. After all, I haven’t had a chance to talk with them unmonitored  for nearly 2 months….



New Web Site for Dollar 4 Dad

Because of technical issues, the 48 Hour Dollar 4 Dad  Marathon website for $1.00 donations has been moved to : http://dollar4dad.webs.com/index.htm.

 

Thank you for your help.


48 Hour Dollar 4 Dad Marathon Starts Today at 3:00 pm

I need your help. If you have an extra dollar, just one, and you would be willing to part with it, go here.

http://dollar4dad.sitegidget.com

At the bottom of the page is a donate through PayPal site.

 

Thank you.

 


Lastest Development

Last Friday, we had a hearing after my Petition for Writ of Habeas Corpus was sustained. The Writ was served to my ex-wife 10 days ago and they appeared in Court with my son. Despite answering all their concerns with supportive evidence to counter their false allegations, in a surprise move, after her attorney and the Judge met in chambers privately, we were send to another Court room and another Judge.

None of my evidence was heard. The new Judge granted Emergency Temporary Custody of my son to her and I was admonished for attempting to have telephone contact with my children.”Harassment” and “causing extreme emotional distress” to the children. The phones the kids have are the ones I bought and pay monthly for. She took those phones away from them 4 weeks ago. I can’t get in touch with them other than Facebook. What she was worried about is that she knows I have FamlyMaps and therefore know there GPS location 24 hours a day. Most parents should have that. Unless they’re in a custody battle.

The Hearing is in 6 days and I need an attorney. The new Judge is clearly not going to give me any break. I did locate one who will be great for this case but it will be hard, if not impossible, to come up with the retainer not to mention the future legal costs. I have used up all my financial resources.

Because of the above, beginning at 3:00 pm today and for the next 48 hours, I am hosting a Dollar 4 Dad Marathon.


Update 6.15.2011

The issue of jurisdiction remains. On the surface, it would appear that the state in which residency has been established, > 6 mos, would be the best option proving improper conduct on the part of the Respondent. On the other hand, the court in the other State has been friendly and has recently ruled in my favor twice in the past year.