65 days since I've seen my children. . . .

[DiveBudzDad]

What is the name of your state? Florida

I separated from my wife in August of 05. During the four months that followed, she refused visitation between me and my children. The day after I filed for divorce, she filed for an injunction for Protection Against Domestic Violence falsely accusing me of being violent and hostile. The judge dismissed the petition and granted me visitation with my children for the following weekend. The following Monday morning, she filed with DCF accusing me of sexually molesting my 5 year old daughter over the weekend. This was investigated and dismissed by DCF shortly after. In response to her unethical behavior, I filed a motion for modification of the temporary custody arrangement. The judge subsequently ordered mediation.

Only one of the three required mediation meetings resulted in anything worth holding my wife legally accountable for -- though that same day, she failed to meet at the agreed time and location to allow me visitation with the children. This proved to be only the beginning of a pattern of inconsistent, inconsiderate and intolerable behavior. After two months of this, I filed a motion for contempt and a request for modification of temporary custody. The judge subsequently referred it to mediation and nothing changed.

Over the next 5 months, it was all I could do to get regular visitation. In addition, my wife claimed she could not afford a telephone so the children could not call according to the mediation schedule. Though I am 100% certain she had a phone during this time, I compromised and as a result, settled for the kids calling on Monday’s and Friday’s. In a regular week, I maybe talked to them 1 or 2 times for 15 minutes tops.

In July 2006, I gave my children a cell phone so they could call me any time they wanted. They had the phone for about a week, before their "mom took it away." I rarely heard from them at all after that. Later that month, and with 17 days left of summer, my wife agreed to a summer visitation schedule. She agreed to give me 9 out of my court-ordered 14 days. 40 minutes before I was to pick them up, she called to say she changed her mind and told me I would get them the following week. Not surprisingly, I didn't get them the following week either. Needless to say, I filed a motion for contempt and a request to modify temporary custody. A substitute judge ruled that this was not an emergency issue and a visitation issue at that. Nothing changed. I neither saw nor heard from them regularly after that.

In August, I went to pick them up for a court ordered visitation, and she refused to bring them to the meeting location. When I went to pick them up from their house, she refused them again. I called the police and she lied tell them they were not there and that I was being irate and irrational and that she felt threatened. I left of my own volition. The following Monday, I filed a motion of contempt and request to modify temporary custody. The judge ruled that this was not an emergency and that she would not make an ex-parte ruling on modifying custody but stated she would enter a pick up order if requested. She also ordered both parents to attend 8 weeks of additional parenting classes. No hearing was ever scheduled.

That same day, my wife went outside the county where our divorce case is being heard to request another injunction against me citing fear of imminent danger of domestic violence against herself and our children though I, again, took no action, nor made any threat of domestic violence toward her or our children.

Because my wife failed to include my entire address on the petition, I was not properly served. I had no idea there was a hearing much less a petition, until about 1 hour prior to my scheduled appearance. The hearing was rescheduled and heard 4 weeks later. At this point, it had been 45 days since I had seen or talked to my children.

At the hearing in mid September, because my wife lied on the UJCC affidavit, the judge was not aware of the ongoing related divorce case and had not seen the entire divorce and custody file. When I informed him of this and her past behavior, he did just about all he could do under the circumstances given that he didn't have all the information and that there were children involved -- he ruled to temporarily extend the injunction and defer a final ruling until the judge presiding over the divorce and custody case could rule within the context of the case history and evidence on file.

With that in mind, the same day, I filed for a case management hearing with our presiding judge. I received no response. 6 days later, I filed a motion to modify the temporary injunction expecting to have a hearing within 5 days as per the related statute. I received no response. 6 days later I wrote another letter to the court calling this to their attention. I received no response.

I have followed court rules and procedures and pursued appropriate relief through the appropriate channels. I have asked the court for intervention, reprimand and reparation on multiple dates and have received a myriad of responses from additional mediation to additional conflict resolution classes. During the past three weeks, I have called the case management office half a dozen times. I have received no response. I called the judge's assistant twice -- no response. Last week, I drove to the court house and spoke to the manager of the case management unit. She told me she sent my file to the judge. Then she went back to her office to double check and it had been sitting on someone's desk. I followed up with her yesterday. I received no response.

My wife has made a clear and convincing case of her own inability to perform the role of primary residential parent. Every day she denies our children the opportunity to connect with me, she creates additional emotional turmoil in their lives and further jeopardizes their wellbeing. Regardless of whether her actions are malicious, or a result of her own ignorance, if she is willing to do anything less than foster ongoing regular contact, and encourage a healthy positive relationship between me and our children, then she is unable to perform the role of primary residential parent and therefore, retaining custody of our children, is clearly detrimental to their wellbeing.

With all due respect, if the court has a responsibility to award visitation to a parent unless that visitation is detrimental, then the court also has a responsibility re-assign custody if the current custody situation is detrimental to the children. Given this and the preceding discussion, how can the court continue to uphold the opinion that the “best interests” of our children is to allow them to remain in my wife’s custody?

It has been 65 days since I last spoke to my children. I cannot see my children much less argue for custody until the divorce and custody is resolved and the injunction dismissed. Yet, I cannot seem to get this case in front of a single individual who is aware of the entire case history and capable of making a competent and appropriate ruling.

I am now pro se as I could no longer afford my lawyer’s time. I would appreciate any advice as to how to move forward.

Thanks.What is the name of your state?

[Ohiogal]

The judge has more than two weeks to rule on a motion. There are proper time periods that MUST be followed. You need to read the state's rules of civil procedure and the local rules for your court. Then you need to realize that you are NOT allowed to contact the judge's office and expect to speak to the judge NOR are you allowed to write the judge letters and think he/she will see them. That will not happen.
So start at the beginning, read the rules, understand the rules and then represent yourself.

[Zephyr]

is there a gaurdian ad litem assigned to the case? you may want to request one.

[DiveBudzDad]

Thanks for your replies. I appreciate the reminder about protocol in communicating with the judge. With respect to the motion to modify or dissolve the injunction, Florida Law states that a hearing will be held within 5 days of the motion - hence my frustration.

Thanks for the tip about the Guardian Ad litem. I will pursue that immediately.

I appreciate your help!

[Ohiogal]

Originally Posted by DiveBudzDad

Thanks for your replies. I appreciate the reminder about protocol in communicating with the judge. With respect to the motion to modify or dissolve the injunction, Florida Law states that a hearing will be held within 5 days of the motion - hence my frustration.

Thanks for the tip about the Guardian Ad litem. I will pursue that immediately.

I appreciate your help!

Is that for EVERY motion or ex parte motions? And did your motion -- regardless of whether it stated it was an exparte motion qualify as fitting the definition of an ex parte motion? Some states restrict what the subject matter of an ex parte can be about.

[DiveBudzDad]

Originally Posted by Ohiogal

Is that for EVERY motion or ex parte motions? And did your motion -- regardless of whether it stated it was an exparte motion qualify as fitting the definition of an ex parte motion? Some states restrict what the subject matter of an ex parte can be about.

Thank you for your reply, Ohio. The "hearing in 5 days" rule is only relevant to the motion to modify or dissolve a temporary injunction. (Florida Rules of Civil Procedure, 1.610)

Thanks for the information about the subject matter of the ex parte. I was not aware of this. As you can imagine, at this point, I am more interested in being granted a hearing on the entire matter than receiving an ex parte ruling on any one issue.

I appreciate your help. Thanks again.

[Ohiogal]

Originally Posted by DiveBudzDad

Thank you for your reply, Ohio. The "hearing in 5 days" rule is only relevant to the motion to modify or dissolve a temporary injunction. (Florida Rules of Civil Procedure, 1.610)

Thanks for the information about the subject matter of the ex parte. I was not aware of this. As you can imagine, at this point, I am more interested in being granted a hearing on the entire matter than receiving an ex parte ruling on any one issue.

I appreciate your help. Thanks again.

So get your evidence together, follow the rules and when you get your evidentiary hearing, KICK ass at it.

[DiveBudzDad]

Thanks! I really appreciate the positive support!

[weenor]

I will add that often judges don't like to deal with these cases in a "piece meal" fashion if there is no emergency. Push to get a trial on all relevant matters. Make sure you include in your motion that several mediations have been attempted but have failed. Try to give the judge a reason to hear and resolve this case.

[DiveBudzDad]

Another great suggestion. Thanks again! You all have been great. This is definitely the kind of help I needed.

Cheers!

[DiveBudzDad]

While we are on the topic. . . it's been 10 months since I initiated the divorce and custody proceedings against my wife. We've had two mediations and my wife cancelled the final mediation session in anticipation of a ruling in her favor on the recent injunction. It's been four weeks since I requested a case management hearing and three weeks since I filed a motion for dismissal of the temporary injunction which by, Florida Family Law 1.610, should have resulted in a hearing within 5 days of the filing. During the past four weeks, I have regularly contacted case management and the judicial assistant and still, I have yet to receive a return call on the status of a hearing. At this point, the court's failure to act is starting to look like negligence. Worse, the court appears to be complicit with the behavior of my ex-wife while systematically denying my right to due process.

With that in mind. . . I am wondering if it is appropriate to bubble this up to another judge or to the chief judge? And, if this is not appropriate, then the media? Any thoughts?

Here is some information I think might shed light on my amplified frustration with this situation. I send generous child support but she is still living in a trailer park and on welfare. The children are both in school during the day and she still has no regular income to help contribute to their needs. More important. . . SHE IS A SELF PROCLAIMED VAMPIRE!!! She is board co-administrator and has made over 6000 posts within the past 5 years on an online vampire / pagan / Wicca NON ROLE PLAYING community.

And if that isn't enough to make your stomach turn, my wife is not only preventing a relationship between me and our children, but with respect to Florida Statute 61.13, she is making other choices in direct conflict with the criteria used to determine the custody in the best interests of the children. Specifically, she has willfully and knowingly:

1. filed two false Domestic Violence allegations. (FS 61.13-3(k))

2. filed false Child Molestation allegations. (FS 61.13-3(k))

3. repeatedly violated court ordered visitation agreements. (FS 61.13-3(a,j))

4. repeatedly refused hundreds of court ordered telephonic contacts with me AND members of my family. (FS 61.13-3(a,j))

5. repeatedly violated resolutions to which she agreed during mediation. (FS 61.13- 3(a,j,m))

6.refused children the use of a telephone I provided for the purpose of contacting me. (FS 61.13- 3(a,f,j))

7. lied to the court claiming my failure to pay child support as outlined in our mediation agreement. (FS 61.13-3(a,j,m))

8.refused and blocked my access to our children’s psychologist and teachers and impeded access to the information each has on our children. (FS 61.13-2(b 3))

9.continues to expose herself and our children to occult-like influences via Dark Realms Online Vampire Community.

10.continues to expose our children to a support network, (mother, friends and boyfriend) enthusiastically supportive of her choices, behaviors and activities, specifically those impeding contact with me. (FS 61.13- 3(a,e,j))

11.continues to make decisions about our children’s lives without my knowledge or consent i.e. withdrawing my son from school and enrolling him in another. (FS 61.13-2(b 3))

12.circumvented the presiding court to file an injunction against me in another county with the intention of getting a ruling from a judge who has no prior knowledge of the case or her behavior. (FS 61.13-3(f,g,k))

Further, in attempts to secure her position as primary custodial parent, she has also:

1.lied in her deposition about her involvement in occult-like activities.

2.lied and withheld information on official court documents pertaining to related cases.

3. filed false federal income tax reports for 2004 and is suspected of doing so for 2005.

4. is suspected of filing false income disclosure in order to secure student financial aid.

5. tampered with us mail.

6. failed to respond to multiple attorney Requests to Produce in a timely manner and failed to fully disclose tax returns, bank statements and financial aid applications.

7. sold joint marital assets without my knowledge or consent.

8. filed two separate false Domestic Violence allegations.

9. filed false Child Molestation allegations.

10. solicited assistance from others in her vampire community, to inflict upon me, what she believes to be physical harm.

All of this information has been documented and filed with the court. How is it possible that I cannot get anyone to pick up the file and look at what's going on? The woman is mentally, emotionally, financially, and morally inept and my children are suffering because of it. Surely there is something I can do to get this case the attention it deserves.

My children need an emotionally safe, stable, and loving atmosphere. I have a responsibility and the ability to give them a healthy, positive and enriching environment within a community surrounded by family and a support network willing to foster a positive relationship with their mother.

Any advice would be much appreciated.

[LdiJ]

I really think that you should consider hiring an attorney. I am concerned that things may not be going the right way for you because you aren't filing the paperwork correctly.

You mentioned "letters" in one of your other posts, and that isn't the proper way to communicate. Its also clear that you have been filing alot of "emergency/ex-parte" motions, all of which have been denied and its possible that the judge is not taking you as seriously as the judge should, as a result. Those are generally reserved for true emergencies...where imminent harm may occur to the children if an immediate decision is not made.

Also, I am concerned about some of the items on your "list".

Examples:

4. repeatedly refused hundreds of court ordered telephonic contacts with me AND members of my family. (FS 61.13-3(a,j))

If you really have a written court order stating that both you and your family are to have unlimited phone access to the children (unlikely as heck...you maybe, but not your family) then no problem. However, without a written court order, hundreds of phone calls could border on harassment.

5. repeatedly violated resolutions to which she agreed during mediation. (FS 61.13- 3(a,j,m))

Unless the mediated resolutions were turned into a court order, she may not be technically violating anything. I am not sure that mediation is binding in FL until the mediated agreements are turned into court orders.

8.refused and blocked my access to our children’s psychologist and teachers and impeded access to the information each has on our children. (FS 61.13-2(b 3))

You are entitled to information regarding your children's medical and educational information under federal law. You don't need mom's cooperation. If you are being refused that information then you need to take action against the providers and the school.

3. filed false federal income tax reports for 2004 and is suspected of doing so for 2005.

4. is suspected of filing false income disclosure in order to secure student financial aid.

5. tampered with us mail.

3 and 4 are completely irrelevant to your divorce. You should not be including them in any court paperwork. It just muddies things up. 5 shouldn't be included either unless the mail in question is directly related to the divorce and you spell it out.

I am also a little concerned about your emphasis on her occult-like activities. You stated that she has been into this for 6 years. You only filed for divorce 10 months ago. Therefore you accepted her activities for at least 5 years. That could backfire on you.

I understand that she wins no medals for mother of the year, AND that she is behaving VERY badly over this whole divorce and deserves to get her butt kicked in court. However, you need to focus on those issues that are true violations of court orders, and unreasonable violations of your parental rights (and don't call them a violation of a court order if there is no court order) and not muddy things up by including things that are either not relevant to your divorce or that will just confuse the issues.

Its also critical that you follow proper procedure. I see some things in your posts that indicate to me that you may not clearly understand what is or isn't relevant, may not understand what is or isn't a court order, and may not clearly understand proceedure. Therefore, hiring an attorney may resolve alot of your issues.

[stealth2]

I have to agree that you really need a lawyer.

[DiveBudzDad]

LdiJ and Stealth. Thanks for your replies. I really appreciate your insight.

Yes, I too agree I need a lawyer. And from the way it sounds, I need one more effective than the one I had up until 1 month ago -- he was the one who put through the emergency motions etc. He was filing the motions for contempt for the violations etc. $5000 dollars into it, while making no headway, I just couldn't afford to work with him anymore. I would love nothing more than to hire a new lawyer. However when I tell my story, most are happy to help, but then realize they would not likely recover their fees from my wife. My resources are pretty drained and I do not meet the requirements for legal aid.

As for my knowing she was a vampire and being aware of her involvement on the website. . .that criticism has been made before. But honestly, I thought she was doing a role playing thing like D&D. SHE would even tell you that I thought it was a joke -- just some kind of hobby. 2 posts per day doesn't seem like much when you are right in the middle of it. (i.e. 2 posts per day on fantasy football, 2 posts per day on fitness forum, 2 posts per day on free advice.) I didn’t worry about her activity or sanction her beliefs because with all do respect, I wasn't aware of the depth of her involvement. I respected her privacy and didn't ask for more than she was willing to share. But now, reflecting on the context and scope of her exposure to the subject, 2 posts per day for 5 years on "vampire community" has me worried that she has a very skewed perception of reality -- in innate aggression toward others that has to be tamed? Psychic powers? Supernatural ability to control and manipulate people? The ability to harm others though her mind and energy? Yikes.

Also, since we’ve separated I have observed some strange things. For example, my wife’s obsession with my 5 year old daughter wearing sun block and sunglasses and going so far as to include in our mediation agreement that my daughter cannot go outdoors for even 5 minutes without them. And during one of my visitations, my seven year old son came right out and said "well, you know I'm a vampire don't you in response to a suggestion to put a band aid on a cut on his knee. Regardless of whether or not you and I believe in this, I think you would agree, absent my involvement in their lives, an argument can certainly be made for concern for my children's wellbeing.

You both made some great points in your replies. I am doing the best I can under the circumstances, but I truly appreciate your perspective and critique of the game plan so far.

Regards.

[LdiJ]

As far as the sunblock and sunglasses are concerned...that is what doctors these days are recommending......